IN THE SUPREME COURT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
Petitioner,
No. 163 EM 2012
v.
TERRANCE WILLIAMS,
Respondent.
TERRANCE WILLIAMS' RESPONSE IN OPPOSITION TO
THE COMMONWEALTH'S MOTION TO VACATE STAY OF EXECUTION
The Commonwealth's motion should be denied.!
INTRODUCTION
The Honorable M. Teresa Sarmina, Judge ofthe Philadelphia Court of Common Pleas, found
that Mr. Williams' death sentence is unconstitutional and vacated that death sentence. Judge
Sarmina found that the trial prosecutor in this capital case suppressed evidence, played "fast and
loose" with the truth, "had no problem disregarding her ethical obligations," and "took unfair
measures to win," NT 9/28/12 at 37,3945, in violation of Mr. Williams' due process rights. Judge
Sarmina found that Mr. Williams timely presented this due process violation under the PostConviction Relief Act, 42 Pa.C.S. § 9545(b)(1 )(i) & (ii), (2), because the Commonwealth continued
its suppression throughout all prior proceedings in this case; Mr. Williams (under section (1 )(i))
"proved that failure to raise the claim previously was the result of interference by govemment
officials"; Mr. Williams (under section (1 )(ii)) exercised due diligence but could not have
ascertained the evidence concerning the Commonwealth's suppression before these proceedings; and
!All emphasis herein is supplied, unless otherwise indicated.
Mr. Williams (under section (2» proved that the claim "was filed within 60 days of the date that it
first could have been presented." NT 9/28/12 at 15.
Having found the death sentence unconstitutional, and that the Court had jurisdiction because
the constitutional violation by the Commonwealth was timely presented by Mr. Williams, Judge
Sarmina vacated the death sentence and issued a stay of execution so that Mr. Williams will not be
executed on the basis of a death sentence that no longer stands under the Constitution of the United
States and the laws of Pennsylvania.
The Commonwealth has not filed a formal Notice of Appeal from Judge Sarmina's grant of
PCRA relief from the death sentence, nor forwarded any record items this Court would need to
evaluate Judge Sarmina's ruling (not the pleadings, amendments and supplements filed by Mr.
Williams; not the hearing transcripts and exhibits; not the transcripts of the arguments ofthe parties
on jurisdiction, timeliness and the merits; not even the transcript of the actual ruling of the Court of
Common Pleas on jurisdiction, timeliness and the meritsV
Remarkably, even though it has taken no steps to perfect an appeal on the merits, the
Commonwealth asks by its motion that this Court vacate the stay of execution, which would result
in the execution of Mr. Williams without a constitutionally valid sentence of death. This Court
should reject the Commonwealth's motion. This Court should treat this case with the same
consideration it would treat any other case in which the PCRA court has found constitutional error
2The Commonwealth attached to its motion a rough draft prepared by Judge Sarmina, which
was provided to counsel as a courtesy. The Commonwealth inaccurately represented to this Court
that its attachment is Judge Sarmina's "Opinion." See Attachment A (e-mail from Hugh Burns, Esq.
Chief of the Philadelphia District Attorney's Appeals Unit, to Patricia Johnson, Chief Clerk,
Pennsylvania Supreme Court, 9/28/12). Judge Sarmina has scheduled a proceeding for 9:00 a.m.
Monday morning, October 1st, to address this inaccurate representation by the Commonwealth.
2
and vacated a death sentence. Should the Commonwealth elect to properly appeal Judge Sannina's
order vacating the death sentence, an appeal it has not taken, the Court should review the
Commonwealth's appeal under its normal rules, with briefing by the parties, an opinion by the
PCRA court, careful review of the PCRA court record, and, especially in this case, oral argument.
From the Commonwealth's submission to this Court, one would think that Judge Sannina
found jurisdiction and constitutional error on a whim. Nothing could be farther from the truth.
Judge Sannina spent many hours reviewing the sizable prior record in this case, from the trial and
capital sentencing, from earlier PCRA proceedings, and from federal court proceedings. Judge
Sannina spent many hours reviewing the parties' written submissions, memoranda, pleadings,
motions and amendments in the instant matter. Judge Sannina conducted an extensive in camera
review of documents created by the police and prosecutor. Judge Sannina held several oral
arguments regarding jurisdiction, timeliness, the merits of the constitutional issues, and the
appropriateness of granting a stay of execution. Judge Sannina held a lengthy evidentiary hearing,
at which she heard live testimony, assessed the witnesses' credibility, and received and reviewed
numerous exhibits. Judge Sannina heard lengthy closing arguments on timeliness, jurisdiction and
the merits.
Judge Sannina expressly followed this Court's precedent in cases such as
Commonwealth v. Morris, 822 A.2d 684 (Pa. 2003), Commonwealth v. Morris, 771 A.2d 721 (Pa.
2001), and Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), regardingjurisdiction, timeliness,
stays of execution, when an evidentiary hearing to assess these procedural issues should be held, and
what factual issues a PCRA court should address in cases such as this. Judge Sannina also heeded
the established precedent of the United States Supreme Court for cases of prose cutoria1misconduct
and governmental suppression of facts.
Based upon her review of this massive record, live
3
testimony, the parties' written submissions, the oral arguments, and the relevant law, Judge Sarmina
made findings of jurisdiction, timeliness and constitutional violations by the Commonwealth.
This Court carmot possibly provide meaningful appellate review ofJudge Sarmina' s findings
of fact and conclusions of law in the rush-to-judgment marmer urged by the Commonwealth.
"The fundamental tool for appellate review is the official record of what happened at trial,
and appellate Courts are limited to considering only those facts that have been duly certified in the
record on appeal."
Commonwealth v. Williams, 715 A.2d 1101, 1103 (pa. 1998) (citing
Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974)). See also Bounds v. Smith, 430 U.S. 817,
822 (1977) ("adequate and effective appellate review is impossible without" trial record (internal
quotation marks omitted)); Commonwealth v. Goldsmith, 304 A.2d 478, 480 (Pa. 1973)
("meaningful appellate review is impossible absent a full transcript" or trial record). In this case, the
PCRA court record this Court needs for meaningful appellate review includes:
The Transcript of Ruling of the Court of Common Pleas (9/28112) (addressing, inter alia,
jurisdiction, timeliness, governmental interference, diligence, Mr. Williams' amendments
and supplements, prosecutorial misconduct, the merits, and the stay of execution);
The Transcripts of Evidentiary Hearing (9/20112, 9/24112, 9/25/12) (including the
presentation of testimonial and documentary evidence, and oral arguments from the parties
on, inter alia, jurisdiction, timeliness, governmental interference, diligence, Mr. Williams'
amendments and supplements, prosecutorial misconduct, and the merits);
The Transcripts of Pre-Hearing Proceedings (9/10/12, 9111112, 9/14112) (addressing, inter
alia, jurisdiction, timeliness, governmental interference, diligence, Mr. Williams' proffers
and pleadings, the propriety of an evidentiary hearing to address the procedural and
substantive issues in this case, and the stay of execution);
The PCRA Court Evidentiary Hearing Exhibits (introduced during the proceedings in the
Court of Common Pleas), including: P-l (Memo re Death Penalty Authorization for
Norwood case); P-2 (Draper Statement-Norwood case); P-3 (Draper Statement- Hamilton
case); P-4 (discovery letter to defense counsel in Norwood case (11115/84)); P-5 (entry from
prosecutor Foulkes' notes); P-6 (same); P-7 (same); P-8 (same); P-9 (same); P-I0 (Statement
4
of Ronald Rucker (7/19/84)); P-ll (entry from prosecutor Foulkes' notes); P-12 (excerpt
from prosecutor Foulkes prior PCRA hearing testimony); P-13 (Statement ofBemard Collins
in Hamilton case); P-14 (Draper Agreement); P-15 (prosecutor Foulkes' letter to Pardons
Board); P-16 (Draper Affidavits); P-17 (Chronology ofInterrogation and/or Custody re:
Marc Draper); P-18 (Philadelphia Daily News article (7/20/1984)); P-19 (letter from John
S. Manos, Esq. to prosecutor Foulkes (7/10190)); P-20 (Police Statement of George Bivins);
P-21 (Police Statement of Lance Brown); P-22 (Police Statement of William Harris); P-23
(Discovery letter to defense counsel in Hamilton case); P-24 (Activity Sheets and Daily
Complaint Summaries); P-25 (Polygraph Examination and related documents for Marc
Draper (7/2111984)); P-26 (polygraph Examination of Marc Draper (7/2111984)); P-27
(Polygraph Examination of Marc Draper (8/17/1984)); P-28 (Police Report (4/30/1985)); P29 (Police Statement (Reverend Charles L. Poindexter)); COURT-I (entry from prosecutor
Foulkes' notes); COURT-2 (same); COURT-3 (same); COURT-4 (same); COURT-5 (same);
COURT-6 (entry from police file); COURT-7 (same); COURT-8 (same); COURT-9 (same);
COURT-I0 (same); COURT-II (prosecutor Foulkes' Notes).
The PCRA Court Filings on behalf of Terrance Williams, who prevailed in the Court of
Common Pleas: Amendment and Supplement to Petition for Post-Conviction Relief (with
leave of Court, granted on September 25,2012) (9128/12); Notice of Filing (Affidavits of
Jennifer Givens and Eric Montroy) (9128/12); Memorandum of Decisions Supporting Relief
Under Napue v. Illinois and Alcorta v. Texas (9127/12); Motion to Conform the Petition to
the Hearing Evidence and to Supplement and Amend (with Supplement and Amendment)
(9124112) (granted on 9125/12); Memorandum regarding Access to Witnesses and Documents
(9/17/12); Supplemental Notice of Filing (9/14/12); Notice of Filing, Including Affidavit of
Marc Draper (9113/12); Notice of Authority (Commonwealth v. Miller, 746 A.2d 592 (Pa.
2000)) (9/10/12); Notice of Authority (Cone v. Bell, 129 S.Ct. 1769 (2009)) (9/10112);
Motion for Discovery (916/12); Notice of Filing, Letter from trial prosecutor Foulkes to PA
Board of Probation & Parole on behalf of Marc Draper (9/4/12); Notice of Filing, Affidavit
of Nicholas Panarella (8/31112); Renewed Motion for Stay of Execution (8/28/12);
Supplemental Petition for PCRA Relief and Notice of Filing of Additional Evidence in
Support of Stay of Execution (07/27/2012); Supplemental Appendix (07/27/2012);
Memorandum (07/24/2012); Appendix to PCRA - Case No. 2362-2367 (07/16/2012);
Appendix to PCRA - Case No. 8409-0797-801 (07/16/2012); PCRA Petition - Case No.
2362-2367 (03/0912012); PCRA Petition - Case No. 8409-0797-801 (03/0912012).3
Moreover, the above are just materials from the record created in the current proceedings.
Meaningful appellate review will require this Court to consider additional materials that are part of
the prior court record of this case, and which were considered by Judge Sarmina, including, inter
3The Commonwealth, which did not prevail in the Court of Common Pleas, has not even
provided its own submissions or hearing exhibits to this Court.
5
alia, the original trial and capital sentencing record, and the record from prior PCRA proceedings.
The "duty to search for constitutional error with painstaking care is never more exacting than
it is in a capital case." Kyles v. Whitley, 514 U.S. 419, 422 (1995). Judge Sarmina performed the
careful review required by the United States Constitution. This Court should do no less. The only
way for this Court to fairly resolve this case is through the normal course of appellate review, should
the Commonwealth elect to take a proper appeal. This Court should deny the Commonwealth's
motion to vacate the stay of execution.
SCOPE AND STANDARD OF REVIEW
Nowhere in its submission to this Court does the Commonwealth describe this Court's
standard of review. Judge Sarmina reviewed an extensive documentary record, held several oral
arguments, heard two days of live testimony, and made credibility findings. This Court's law
requires that Judge Sarmina's findings receive "great deference";
The findings of a post-conviction court, which hears evidence and passes on the
credibility of witnesses, should be given great deference. We will not disturb the
findings of the PCRA court ifthey are supported by the record, even where the record
could support a contrary holding .... This Court's scope of review is limited to the
findings of the PCRA court and the evidence on the record of the PCRA court's
hearing, viewed in the light most favorable to the prevailing party.
Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006) (citations omitted). Accord Commonwealth
v. Collins, 888 A.2d 564, 580 n.21 (Pa. 2005) (same); Commonwealth v. Martin, 5 AJd 177, 197,
201 (Pa. 2010) (same); Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) ("[T]here is no
justification for an appellate court, relying solely upon a cold record, to review the fact-finder's
first-hand credibility determinations."); Commonwealth ex reI. Spriggs v. Carson, 368 A.2d 635,
637, 639 (Pa. 1977) ("It is a principle which runs through all our cases that the credibility of
6
witnesses and the weight to be given to their testimony by reason of their character, intelligence, and
knowledge of the subject can best be determined by the judge before whom they appear .... [The
hearing judge] alone had the opportunity to see and hear the witnesses in this case, and therefore had
the better opportunity to pass upon their demeanor and character. These are qualities which cannot
be divined from the mechanistic reading of a cold record. "); Commonwealth v. Grant, 813 A,2d 726,
734 (Pa. 2002) ("Most importantly, appellate courts do not act as fact finders, since to do so would
require an assessment of the credibility of the testimony and that is clearly not our function."
(internal quotation marks omitted)).
This "great deference" due Judge Sarmina's findings is also due her decision to hold an
evidentiary hearing, which was well within her discretion, see Commonwealth v. Dennis, 950 A,2d
945,979 (Pa. 2008) (stating this Court's "continued reliance on the PCRA court, in its discretion,
to evaluate as necessary questions of waiver and the adequacy of the record and argument with
respect to each issue, to consider ... the necessity of permitting [a petitioner] to amend his pleadings
... , and to hold further evidentiary hearings, if necessary, on the issues"); Commonwealth v. Jones,
912 A,2d 268, 276, 281 (Pa. 2006) (PCRA court's decision to hold an evidentiary hearing and
evidentiary rulings are reviewed for "clear abuse of discretion"), and, in the context of Mr. Williams'
case, was plainly appropriate under Commonwealth v. Bennett, 930 A,2d 1264, 1274 (Pa. 2007)
(when a petitioner's "allegations bring his claim within the ambit of' an exception to the PCRA's
one year limitations provision, "he must still prove that it meets the requirements therein .... Such
questions require further fact-finding and the PCRA court, acting as fact finder, should determine
whether [the petitioner] met the "proof' requirement").
The Commonwealth's cavalier attitude toward the PCRA Judge's findings and discretion is
7
inappropriate in any case, but it is especially remarkable in light of Judge Sarmina's qualifications.
Judge Sarmina has been a Court of Common Pleas Judge since 1998. She has been a Homicide
Judge since 2003, and has presided in over 100 homicide trials. This Court has affirmed four firstdegree murder convictions, three ofthem resulting in death sentences, where Judge Sarmina presided
at trial. See Commonwealth v. Mouzon, -
A.3d - , 2012 WL 3570663 (Aug. 21, 2012);
Commonwealth v. Houser, 18 A.3d 1128 (Pa. 2012); Commonwealth v. Brown, 987 A.2d 699 (Pa.
2009); Commonwealth v. Kennedy, 959 A.2d 916 (Pa. 2008). Judge Sarmina's experience in PCRA
cases is extensive as well. Before she assumed the Bench, Judge Sarmina was an Assistant District
Attorney in the Philadelphia District Attorney's Office, and was an Assistant Attorney General in
the Office of Pennsylvania's Attorney General. Needless to say, Judge Sarmina is one of the most
respected Court of Common Pleas Judges in the Commonwealth.
Judge Sarmina's rulings are supported by the record. Judge Sarmina did not abuse her
discretion.
THE PCRA COURT HAD JURISDICTION
The Commonwealth baldly contends that Mr. Williams "did not plead any valid exception
to the timeliness requirement." Application at 15. To the contrary, Mr. Williams both pled and
proved valid exceptions to the time bar, as Judge Sarmina found.
To be sure, the Petition was filed over one year after Mr. Williams' conviction became final.
Mr. Williams, however, alleged that the petition is timely under 42 Pa. C.S. § 9545(b), which
provides as follows:
(l) Any petition under this subchapter, including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final, unless the
petition alleges and the petitioner proves that:
8
(i) the failure to raise the claim previously was the result of interference by
government officials with the presentation of the claim in violation of the
Constitution or laws ofthis Commonwealth or the Constitution or laws of the
United States;
(ii) the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence;
* * *
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within
60 days of the date the claim could have been presented.
For a petition to be timely under § 9545(b), the petitioner must thus plead (and then prove)
either (l) government interference with presentation of the claim, or (2) the facts were unknown in
the exercise of due diligence, and (3) the claim was filed within sixty days of the date it could have
been presented. If the petitioner's allegations make aprimajacie showing of timeliness, the PCRA
court must conduct a hearing at which the petitioner may then prove his allegations as to timeliness.
Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007) (where petitioner's "allegations bring
his claim within the ambit" of a statutory exception, "the PCRA court, acting as fact fmder, should
determine whether [the petitioner] met the 'proof requirement").
Here, Mr. Williams proffered that the Commonwealth suppressed evidence concerning the
Commonwealth's key witness, Marc Draper; that this evidence was unknown to the defense despite
attempts by the defense to uncover it; and that Mr. Draper had revealed the evidence less than sixty
days before the filing of the Petition. See Petition at 21-22. The Petition quoted Mr. Draper's
January 9, 2012 Declaration, in which he unequivocally stated, "Before now, I would not have talked
about this information." Petition at 21-22 n.4 (quoting Declaration of Marc Draper (119112),
~
8).
On July 24, 2012, Mr. Williams filed Petitioner's Memorandum, further spelling out his
proffers as to timeliness. Mr. Williams again asserted that the prosecution failed to disclose the fact
9
that Mr. Draper told the prosecuting authorities that the murder was motivated by a homosexual
"relationship," not a robbery. Petitioner's Memorandum, at 6 (quoting Draper 119/12 Declaration).
Mr. Williams further proffered that, in his declarations, Mr. Draper had attested that the detectives
threatened to prosecute him in the unsolved Donna Friedman homicide if he did not mold his
account to the Commonwealth's theory. Id. at 8 (quoting Declaration of Marc Draper (3/1112)). Mr.
Williams further proffered that the prosecution failed to disclose additional information in its
possession about the sexual activities of the decedent with teenage boys. Id. at 9. Given these
failures to disclose, Mr. Williams asserted that he had made aprimajacie showing of timeliness
under Bennett. rd. at 10-11.
Judge Sarmina held oral argument on Mr. Williams' application for stay of execution,
including the timeliness issues, on September 10, 2012. The defense argued that the allegations of
the Petition and the new disclosures from Mr. Draper themselves established aprimajacie showing
under Bennett.
See,~,
NT 9/10/12 at 71. Judge Sarmina demanded a more specific proffer,
stating:
[Jurisdiction] is one of the things that you have to establish, absolutely that, and the
burden is on you. There is no assumption there is jurisdiction....
• • •
[There must also be] a strong showing of likelihood of success on the merits. A
strong showing, that means what you submit of likelihood of success on the merits
and it doesn't say we're gonna find that out after the evidentiary hearing. This is so
that you even get the evidentiary hearing.
rd. at 86-87. Judge Sarmina ordered the defense to make any additional submission by September
13. rd. at 101-02.
On September 13, 2012, the defense proffered an additional Affidavit from Mr. Draper, in
which he swore that he told both the investigating officers and Ms. Foulkes that the case was not
10
about a robbery, but rather "about Mr. Norwood having sex with Terry," and that Mr. Williams
"snapped" at the time of the offense. Affidavit of Marc Draper, 9111/12,
~
8. Mr. Draper further
swore that he would not have talked to anyone working on behalfofMr. Williams prior to January
2012, when he signed his fust declaration. rd.,
~
9. Mr. Draper then swore to each of his
declarations and they were notarized.
In a Supplemental Notice ofFiling, also filed on September 13, the defense submitted that
Mr. Draper's affidavits made aprimafacie showing of timeliness:
First, under subsection (b)(1 )(i), the affidavit( s) establish "interference by
government officials" (M., inter alia, 9/11112 affidavit at paragraph 8-"they did not
want me to say the case involved a relationship. They wanted me to say it was only
a robbery. Ms. Foulkes made it clear with me that I had to stick to the story that this
case was only about a robbery. r followed what they told me and stuck to it over the
years.") Second, under subsection (b)(2), the affidavit(s) establish that the claim,
which turns on Marc Draper's evidence about the killing of Mr. Norwood and the
Commonwealth's suppression of that evidence and presentation of a slanted version
to the jury, is properly before this Court, (M., inter alia, 9111/12 affidavit at
paragraph 9 ("I would not talk to Terry's lawyers before [January 9,2012] .. .1 would
not talk. .. ")). As Petitioner has pled a claim that falls within section 9545(b), the
Court has jurisdiction, see Commonwealth v. Bennett, 930 A.2d 1264, 1270-71 (Pa.
2007), and "[q]uestions (as to proof) require further fact-findings"; this Court, "as
factfinder," must determine at a hearing whether the "proof requirement" is met. rd.,
930 A.2d 1264, 1270-71 (Pa. 2007).
Supplemental Notice ofFiling, at 1-2.
Judge Sarminaheard additional oral argument on September 14, 2012, at which Mr. Williams
argued that his pleadings and proffers made a prima facie showing of timeliness, requiring that an
evidentiary hearing be held.
See,~,
NT 9/14/12,5-6. At the conclusion of September 14, 2012
proceedings, based on Mr. Williams' allegations and proffers, Judge Sarmina found that he had made
a sufficient prima facie showing of timeliness under section 9545(b)(1 )-(2) to require that an
evidentiary hearing be held, consistent with Bennett, supra. NT 9/14112,69.
11
The Commonwealth, citing Commonwealth v. Fahy. 959 A.2d 312 (Pa. 2008), contends that
it was error for Judge Sarmina to hold a hearing. Application at 2. This case, however, is far
different from Fahy, where this Court found that the evidence Mr. Fahy relied on was public
knowledge years before his petition was filed. Id. at 317. Here, Judge Sarmina found a prima facie
showing of timeliness, based on Mr. Williams' allegations of facts known only to Mr. Draper and
the Commonwealth, facts withheld from the defense - that Mr. Draper had told the prosecuting
authorities the true motivation for the homicide, but those authorities coerced and coached him to
testifY differently and conceal the truth for years. The threat ofprosecution ofMr. Draper for another
homicide (the still unsolved Donna Friedman case) was the reason he would not disclose what he
knew until Mr. Williams was on the eve of execution. And as detailed below, Judge Sarmina found
timeliness proved based in part on disclosures during the hearing of additional evidence from the
files of the prosecutor and the police, evidence which the Commonwealth stipulated had never
before been available to the defense. NT 9/25/12 at 42-43. Unlike Fahy. the facts relied on here
were not public knowledge.
During the hearing, additional evidence supporting timeliness was uncovered, including
previously undisclosed documents from the prosecutor's files and police files. On September 25,
2012, therefore, Mr. Williams filed aMotion to Conform the Petition to the Hearing Evidence and
to Supplement and Amend the petition, which included an amendment and supplement, in which he
asserted that the testimony ofMr. Draper and Ms. Foulkes, together with exhibits introduced at the
hearing, included "never-before-revealed evidence (l) that the Commonwealth failed to disclose, and
(2) that materially counters the evidence and arguments presented by the Commonwealth at trial and
capital sentencing." Motion to Conform, at 5.
12
Judge Sarmina heard additional argument on September 25,2012. During that argument,
Judge Sarmina granted Mr. Williams' request for leave to amend. NT 9/25/12 at 77. On September
28,2012, Mr. Williams filed an additional amendment- his Amendment and Supplement to Petition
for Post-Conviction Relief(with leave ofCourt, granted on September 25, 2012). In the Amendment
and Supplement, Mr. Williams proffered that the hearing evidence and exhibits established that Mr.
Draper was threatened with prosecution for the Donna Friedman murder; was offered the possibility
of release from prison in ten years if he assisted the Commonwealth; and was coached to testifY
falsely that the only motive for the murder was robbery. Amendment and Supplement, ~~ 3-6. Mr.
Williams further proffered that the prosecutor knew her portrayal at trial of Mr. Norwood as a "kind"
and "innocent" man who was killed solely because of greed, NT 2/3/86 at 1873, 1875, was false and
misleading. Amendment and Supplement,
~~
7-8.
Mr. Williams surrunarized the effect of the evidence presented as follows:
As to the Court's jurisdiction, the hearing evidence amply demonstrates that crucial
documents were withheld from the defense; that Marc Draper was coerced and
coached; that the prosecutor and police manipulated the facts about the offense and
Mr. Draper's motive for testifYing; and that none of this could have been ascertained
by the defense prior to these proceedings, much of it being revealed for the first time
in the hearing itself. This is a case of governmental interference. The claims have
been brought within 60 days of when they could have been presented. And while due
diligence was exercised, no amonnt of due diligence would have disclosed what has
come to light in this hearing.
Amendment and Supplement,
~
33.
Accordingly, contrary to the bald assertions of the Commonwealth, Mr. Williams pled and
proffered in great detail the basis for a conclusion that the Petition was timely. Following the
hearing, Judge Sarmina found that Mr. Williams had proved timeliness and established jurisdiction.
NT 9/28/12, 15-20.
13
1.
Government interference.
Mr. Williams proved in the PCRA court that the Government interfered with his presentation
of his claims, in violation of his right to due process under Brady v. Maryland, 373 U.S. 83 (1963),
Cone v. Bell, 556 U.S. 449 (2009), Banks v. Dretke, 540 U.S. 668 (2004), and Napuev. Illinois, 360
U.S. 264 (1959).
Judge Sarmina found, inter alia, the following with respect to Government interference:
By removing direct and indirect information which demonstrated that Amos
Norwood had homosexual relationships with teenage boys from the statements that
were turned over to the defense, the government interfered with the presentation of
this claim.... The only way that petitioner could have demonstrated a Brady claim
based upon the fact that there was information in the District Attorney's file and the
Philadelphia Police Department's file was to actually go into the files themselves.
NT 9/28/12, 16.
Judge Sarmina's finding - which the Commonwealth fails to address - is legally correct and
supported by the record. The evidence that witnesses presented by the Commonwealth at trial knew
that Mr. Norwood was an ephebophile was concealed by the Commonwealth in its police and
prosecutorial files and not disclosed until the PCRA proceedings conducted within the last two
weeks. These circumstances establish governmental interference with the presentation ofthis claim.
See Commonwealth v. Lambert, 888 A,2d 848, 852 (Pa. 2005) (finding "facts set forth in the police
file" were not known to petitioner and therefore claim was timely under newly discovered evidence
exception).
In addition, the evidence presented below establishes that Marc Draper told Philadelphia
police officers and the trial prosecutor, Andrea Foulkes, that Mr. Williams (then just over eighteen)
was involved in a sexual "relationship" with the decedent, Amos Norwood, that the murder was
14
motivated by that "relationship," and that at the time ofthe homicide Mr. Williams "snapped" and
acted crazy. NT 9/20112 pm at 169, 179-80, 190, 197-98. Mr. Draper further testified thatthe police
threatened and coerced him to change his story, and coached him to testifY that the motive for the
murder was robbery alone, id. at 177-78, while Ms. Foulkes suppressed his account of the
"relationship." rd. at 198-99. Mr. Draper was intimidated into testifYing falsely by threats to
prosecute him for the unsolved murder of a pregnant woman, Donna Friedman. rd. at 160-61, 182,
186.
The Donna Friedman case remains unsolved, and the threats, i.e., the governmental
interference, are the reason why Mr. Draper would not reveal the truth until now. As became crystal
clear when Mr. Draper was questioned by Judge Sarmina, the threat stayed with him "forever." NT
9/20/12 pm at 208.
The facts that Mr. Draper told the prosecuting authorities the truth, but that they did not
disclose his statements or the other evidence of ephebophilia, and instead coerced Mr. Draper to give
false testimony, establish violations of Brady and Napue.
See,~,
Brady, 373 U.S. at 87 (due
process is violated "where the [suppressed] evidence is material either to guilt or to punishment");
Napue v. Illinois, 360 U.S. at 271 (relief is warranted where there is any reasonable likelihood that
false testimony could have affected the judgment of the jury); see also Alcorta v. State of Texas, 355
U.S. 28, 31-32 (1957) (due process violated where the state created a false impression about the
circumstances and motive in the crime).
As noted, the Commonwealth continued to interfere with Mr. Williams' ability to raise these
claims. Mr. Draper remained intimidated by the threat of prosecution in the Donna Friedman case
until he finally disclosed the truth to current counsel earlier this year. NT 9/20/12 pm at211-12; NT
9/24/12 pm at 20-21. Moreover, the Commonwealth was under a continuing duty to disclose its
15
knowledge ofMr. Draper's statements concerning the motive for the Norwood homicide, and of its
knowledge of witness statements that Mr. Norwood was an ephebophile, particularly when Mr.
Williams made allegations concerning those matters in the original PCRA and federal habeas
proceedings, and then even more pointed allegations based on the declarations of Mr. Draper and
Reverend Poindexter in the court below. 4 Yet the Commonwealth never disclosed any of these facts
- known to it but nobody else - until they were brought to the light of day through the hearing
conducted in the Court of Common Pleas. There is no reasonable question about governmental
interference in this case. Judge Sarmina's findings should not be reversed.
2.
The evidence was withheld from the defense
The "facts on which this claim is predicated" were also unknown to the defense. 42 Pa. C.S.
§ 9545(b)(1)(ii). Contrary to the Commonwealth's arguments, this claim is not predicated on the
facts - known to Mr. Williams - that Mr. Norwood had sexually abused him since he was thirteen,
and more recently given him money and clothing in exchange for sex. Rather, it is predicated, as
Judge Sarmina found, on the facts - unknown to Mr. Williams - that various witnesses had disclosed
to the Commonwealth evidence that Mr. Norwood was an ephebophile. NT 9/28/12, 16-17. It is
also predicated on the facts - unknown to Mr. Williams - that Mr. Draper knew and communicated
to the Commonwealth the real reason why Mr. Norwood was killed, but was told not to discuss it
(was in fact threatened); and that thereafter the Commonwealth knowingly presented false testimony
4 The Commonwealth has a continuing obligation under Brady to disclose exculpatory
evidence, even after a conviction. See,~, Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) ("the
duty to disclose is ongoing"); Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976) ("[AJfter a
conviction the prosecutor ... is bound by the ethics of his office to inform the appropriate authority
of after-acquired or other information that casts doubt upon the correctness of the conviction.");
Commonwealth v. [Roy] Williams, 732 A.2d 1167, 1175-76 (Pa. 1999) (the Commonwealth's
"obligations under Brady continue through all stages of the judicial process").
16
from Mr. Draper that the homicide was committed solely for the purpose of robbing Mr. Norwood,
which the Commonwealth failed to correct. Judge Sarmina credited Mr. Draper's affidavits and
testimony. NT 9/28/12, 17-19.
All of those facts were known only to Mr. Draper, who was unwilling to communicate in part
because he had been threatened with prosecution, including the potential for a death sentence, in the
Donna Friedman homicide case, see NT 9/20/12 pm at 211-12; NT 9/24/12 pm at 20-21; NT
9/28/12, 18-19 (finding Mr. Draper's testimony credible), and to the prosecuting authorities, who
did not disclose them. See NT 9/20/12 pm at 120-23; CW Ex. 2 at 2 (testimony concerning note in
Ms. Foulkes' handwriting about allegation of sexual abuse on part of Mr. Norwood); Pet. Ex. 24
(undisclosed statement by Rev. Poindexter about allegations of sexual abuse on part of Mr.
Norwood). And Judge Sarrnina found that the prosecution "sanitized the statements of two
witnesses, Mamie Norwood and Reverend Charles Poindexter, removing information that either
directly or indirectly demonstrated that the victim was a homosexual ephebophiliac," and that Ms.
Foulkes "failed to disclose information in her possession that the victim had made sexual advances
on a teenage member of his church, and that there were other possible instances of sexual
impropriety." NT 9/28/12, 23.
Accordingly, because "the facts set forth in the police filer s1were not otherwise known to
appellant, the Brady claims he asserts are 'timely' under the newly discovered evidence exception."
Lambert, 888 A.2d at 852.
The Commonwealth's argument is also contrary to controlling United States Supreme Court
precedent, Cone v. Bell, 556 U.S. 449 (2009), as Judge Sarrnina found. Cone was convicted of "two
counts of first-degree murder, two counts of murder in the perpetration of a burglary, three counts
17
of assault with intent to murder, and one count of robbery by deadly force," based upon a crime spree
in which he robbed ajewelry store and a drug store, shot a police officer and a bystander, attempted
to hijack a car and shoot the driver, attempted to shoot a police helicopter, attempted to forcibly enter
an elderly woman's house at gunpoint, and broke into the home of an elderly couple, "beat the
couple to death with a blunt instrument and ransacked ... their home." Cone, 556 U.S. at 452-53.
At capital sentencing, the jury sentenced Cone to death, finding "four aggravating factors" - "Cone
had committed one or more prior felonies involving the use or threat of violence"; "the murders had
been committed for the purpose of avoiding, interfering with, or preventing Cone's lawful arrest or
prosecution"; "the murders were especially heinous, atrocious, or cruel in that they involved torture
and depravity of mind"; and "Cone had knowingly created a risk of death to two or more persons,
other than the victim murdered." Id. at 456 & n.6.
The United States Supreme Court held that the prosecution unconstitutionally failed to
disclose information suggesting that "drug use played a mitigating, though not exculpating, role in
the crimes [Cone] committed." Cone, 556 U.S. at 475. Mr. Cone knew he was high on drugs, just
as Mr. Williams knew of his own relationship with Mr. Norwood. The Brady violation in Cone lay
in the non-disclosure of information from witnesses other than Cone himself, just as Brady was
violated here by the Commonwealth's non-disclosure of the evidence concerning Mr. Norwood's
sexual activities with other teenage boys and relationship with Mr. Williams. See also Brady, 373
U.S. at 84 (finding that government violated due process by failing to disclose evidence that Brady's
co-defendant was the actual killer, a/act that was known to Brady).
Mr. Williams' knowledge that he was sexually abused by Mr. Norwood did not relieve the
Commonwealth of its duty under the Due Process Clause. Instead of providing critical evidence to
18
the defense, the Commonwealth suppressed it and has argued (for years) that Mr. Williams' claims
of sexual abuse are self-serving and slanderous, just like the government argued against the
defendant's claims of drug use in Cone. The Commonwealth's current assertion, that Mr. Williams
should have uncovered what the Commonwealth hid, asks this Court to sanction a procedure by
which the "prosecutor may hide, [and] defendant must seek"; such a procedure "is not tenable in a
system constitutionally bound to accord defendants due process." Banks v. Dretke, 540 U.S. 668,
696 (2004).
3.
Diligence
The Commonwealth has not made any express argument with respect to due diligence. Judge
Sarmina found that Mr. Williams exercised due diligence:
Petitioner established that the claim could not have been raised earlier with
the exercise of due diligence through the affidavit and testimony of Marc Draper.
It is because ofthe statements in Mr. Draper's affidavit, in which he alleged
that he made a statement about petitioner's motive for the crime, which was never
disclosed to the defense, that this Court ordered the DA's and police boxes opened.
The information uncovered as a result of this Court's order could not have
come to light ifit weren't for Draper's original affidavit.
NT 9/28/12, 17. Judge Sarmina further found that the defense diligently obtained Mr. Draper's
statements, which were not previously available to the defense. Id. at 18-19.
Moreover, the prosecution's continuing efforts to conceal the truth from Mr. Williams further
counsel in favor of a finding of diligence. The prosecution's conduct here is similar to that of the
prosecution in Banks v. Dretke, 540 U.S. 668 (2004). There, the Supreme Court found that the
petitioner had acted reasonably, despite having failed to uncover the Brady violations sooner. Here,
substituting Mr. Draper's name for the name of the witness in Banks fits the Supreme Court's
analysis like a glove:
19
As a prosecution witness ... , [Draper] repeatedly misrepresented his dealings with
police; each time [Draper] responded untruthfully, the prosecution allowed his
testimony to stand uncorrected .... It has long been established that the prosecution's
deliberate deception of a court and jurors by the presentation of known false evidence
is incompatible with rudimentary demands of justice.... [It] was ... appropriate for
[Williams] to assume that his prosecutors would not stoop to improper litigation
conduct to advance prospects for gaining a conviction.
Id. at 694 (citations and quotation marks omitted).
The Tenth Circuit Court of Appeals found the petitioner to have exercised due diligence in
similar circumstances in Douglas v. Workman, 560 F.3d 1135 (10th Cir. 2009). In Douglas, the key
prosecution witness falsely denied having received any kind of deal in exchange for his testimony
implicating Douglas and a co-defendant. The witness later recanted, and Douglas filed a new habeas
claim based on the witness' affidavit. The Tenth Circuit found as follows:
In light of the district court's conclusion that [the prosecutor] was an active
participant in shielding any evidence of the facts underlying the instant claim from
[the defendants], we are not persuaded by the State's contention that Mr. Douglas
could have uncovered the illicit dealings between [the prosecutor] and Smith prior
to Smith's recantation. Therefore, we conclude Mr. Douglas, exercising due
diligence, could not have discovered this Brady claim any sooner.
Douglas, 560 F.3d at 1181.
Here, as in Banks and Douglas, the prosecution concealed the facts from Mr. Williams
through its improper conduct. Judge Sarmina correctly found that Mr. Williams exercised due
diligence in uncovering these Brady claims.
Other than its jurisdictional assertion, the Commonwealth emphatically but quite erroneously
asserts that" This exact same claim was raised years ago .... " Application at 2 (bold and italics in
original). Though not clearly spelled out, this appears to be an assertion that the claims at issue were
previously litigated. 42 Pa. C.S. § 9544(a). Judge Sarmina correctly found that the claims were not
20
previously litigated because they are both legally and factually distinct from any previously litigated
claim. NT 9/28/12, 21-22.
The Commonwealth does not challenge these findings of Judge Sarmina, which are clearly
correct. For purposes of § 9544(a), the fact that a related claim has been raised in the past does not
mean that the "previously litigated" bar applies. Rather, a claim is "previously litigated" for
purposes of § 9544(a) only where the earlier claim presented the same "legal ground [that was
previously] raised and decided," Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005), and
where the later claim "rest[s] solely upon ... previously litigated evidence." Commonwealth v.
Miller, 746 A.2d 592, 602 nn. 9 & 10 (Pa. 2000).
As Judge Sarmina correctly found, the claims presented here both rest on a different legal
ground from the previously litigated claim and rely on different evidence. The legal grounds
presented here are that the Commonwealth failed to disclose exculpatory evidence that would have
been material at the penalty phase of the trial, and that the Commonwealth knowingly presented and
failed to correct false testimony. Brady v. Marvland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S.
264 (1959). Those grounds are quite distinct from an ineffective assistance claim. Moreover, the
evidence presented is quite different - Mr. Williams never previously could have had access to, and
thus did not present, evidence that the Commonwealth suppressed exculpatory evidence provided
to it by Mr. Draper, or from other witnesses who knew ofMr. Norwood's homosexual activities with
other teenage boys. NT 9/28/12, 22.
Finally, the Commonwealth is exceedingly ill placed to complain about any of this. When
Mr. Williams previously alleged that he had been sexually abused by Mr. Norwood and others, the
Commonwealth repeatedly asserted that it was all lies made up by Mr. Williams.
21
See,~,
Williams
v. Beard, No. 05-3486, Response to Penalty-Phase Claims in the Petition/or Writ o/Habeas Corpus,
at 81 (E.D. Pa., filed Oct. 20, 2006) (questioning Mr. Williams' account "that there had been some
sexual component to his relationship with Norwood," because "there was no contemporaneous
evidence," but "only recent statements at the PCRA from petitioner and his affiants."). In fact,
however, the Commonwealth itself had "contemporaneous evidence" from Mr. Draper about the
homosexual "relationship" between Mr. Williams and Mr. Norwood, and additional evidence
confirming Mr. Norwood's preference for teenage boys like Mr. Williams. The Commonwealth
never disclosed that evidence and/alsely asserted it did not exist. In these circumstances, it is quite
ironic that the Commonwealth would assert "previous litigation" as a defense.
MATERIAL EVIDENCE WAS SUPPRESSED BY THE COMMONWEALTH,
RENDERING TERRANCE WILLIAMS' DEATH SENTENCE
UNCONSTITUTIONALLY UNRELIABLE
Judge Sarmina correctly concluded that Mr. Williams is entitled to relief under Brady v.
Marvland and its progeny because the Commonwealth suppressed exculpatory and material
evidence. The Commonwealth did not dispute that the evidence uncovered in these proceedings had
never been turned over to the defense. Relying on the testimony of trial prosecutor Foulkes and
Commonwealth trial witness Draper, as well as on the contents of the District Attorney and police
files, Judge Sarmina found that "evidence has plainly been suppressed." NT 9/28/2012 at 36. Judge
Sarmina went on to find:
Furthermore, the evidence borne out over the course of the evidentiary hearing about
former ADA Foulkes' sometimes playing a little fast and loose suggests that the scale
- which you will hear shortly also additional factors - tip[s] toward a finding that the
suppression was closer to wilful than to inadvertent.
Id. at 36-37.
22
Judge Sarmina appropriately found thatthe Commonwealth's suppression of evidence in this
case was material under Brady v. Maryland, 373 U.S. 83 (1963).
She also found that the
government's suppression of evidence "resulted in painting an incomplete and misleading picture
for defense counsel." NT 9/28112 at 28. Simply put, the Commonwealth knowingly created a false
impression for the jury on facts material to the capital sentencing determination. While this requires
relief under the more defendant-friendly standard ofNapue v. Illinois, 360 U.S. 264 (1959), Judge
Sarmina assessed the claims under the higher prejudice standard for Brady cases and determined that
Mr. Williams was entitled to relief even under the Brady materiality standard. 5
Judge Sarmina's finding of materiality under Brady is amply supported by the facts and law
applicable to this case. The Commonwealth suppressed evidence of the victim's "homosexual
ephebophilia," as well as evidence regarding the true motive and circumstances of the offense in this
case. Under Brady, evidence is "material" where "the favorable evidence could reasonably be taken"
to put the case "in such a different light as to undermine confidence in the verdict." Banks v.
Dretke, 540 U.S. at 698. We note that the failure to disclose exculpatory evidence can be material
at capital sentencing, requiring relief on a death sentence, aside from the question whether it is
material at the guilt/innocence phase of trial. This concept is clear from Brady itself, which held that
governmental suppression of evidence violated due process "where the evidence is material either
to guilt or to punishment," Brady, 373 U.S. at 87, and affirmed the ruling of the lower court that the
5Especially in light ofJudge Sarmina's materiality finding under Brady, there can be no doubt
that Mr. Williams established, under Napue, 360 U.S. at 271, that there is any reasonable likelihood
that the false testimony and impressions created by the Commonwealth (about the true motive and
circumstances of the offense) could have affected the judgment of the jury. See also Alcorta v. State
of Texas, 355 U.S. 28, 31-32 (1957) (due process violated where the state created a false impression
about the circumstances and motive in the crime).
23
evidence suppressed in the Brady prosecution was material as to capital sentencing, albeit not as to
guilt. Id. at 90. In two more recent decisions, the United States Supreme Court has similarly
reiterated that suppressed evidence could be material as to punishment. See Banks, 540 U.S. at 699703 (suppression of evidence concerning important prosecution witness material as to capital
sentencing); Cone, 556 U.S. at 469-76 (suppression of evidence regarding the seriousness of
defendant's drug problem necessitated remand to determine materiality as to capital sentencing).
Relying on this line of cases, Judge Sarmina found that the suppression of evidence was
material at the sentencing phase. NT 9/28/12 at 45-46. An examination of the record makes clear
that this finding should be affirmed by this Court.
First, the Commonwealth suppressed evidence from its witness, Reverend Charles
Poindexter. During Rev. Poindexter's initial interview with police, he told detectives "that about
five years prior to the interview there had been a complaint from the mother ofa 17-year old boy at
church who said that the victim propositioned him for sex." NT 9/28/12 at 24-25. However, the
version of this interview that was turned over to the defense "omitted those portions of Reverend
Poindexter's statement entirely." Id. at 25. Additionally, Reverend Poindexter testified at trial that
Mr. Norwood was "a kind church volunteer who wanted to help out the kids of the neighborhood."
Id. at 36. During cross-examination Reverend Poindexter was asked whether he was aware "that Mr.
Norwood had some problem in the past." Id. at 35. The Commonwealth objected and Rev.
Poindexter was not permitted to answer the question. Id. at 35.
Second, the trial prosecutor "failed to disclose evidence in her possession that the victim had
made sexual advances on a teenage member of his church, and that there were other possible
instances of sexual impropriety." Id. at 23. Indeed, in Ms. Foulkes' own handwriting in her
24
Norwood files Ms. Foulkes stated, "Mrs. House, son in play - Ronald - 16 years - touched on
privates. I don't do that - nobody would have to know." PCRA Hearing Exhibit C-2 at 2; NT
9/20/12 pm at 120-21. The notes continued, "heard from others about possible incidents." PCRA
Hearing Exhibit C-2 at 2; NT 9/20/12 pm at 120-21. During Ms. Foulkes' testimony, the court
asked, "[d]oes this refresh your recollection at all? It's a Ms. House and her son Ronald who is 16
years old. He had been in a play and was touched on his privates and then it has some notation, I
think in your handwriting, 'Heard from others about possible incidents.'" NT 9/20112 pm at 120; see
also NT 9/20112 pm at 122-23 ("Son in play, Ronald, touches on privates, I don't do that, nobody
would have to know, brought boy home and asked him not to say anything, and then he stopped
coming to church, disappeared."). In response, Ms. Foulkes said, "I didn't remember this, but yes,
there must have been this one report from a Ms. House." NT 9/20/12 pm at 120, 123. None of this
information was provided to the defense. NT 9/28/12 at 26. To the contrary, Ms. Foulkes slanted
her presentation in the opposite direction, as Judge Sarmina found.
Third, "the police also failed to pass [to the defense] the search warrant of James Stallings'
[sic] home, which revealed another middle-aged man with whom Terry Williams was very familiar
had assorted nude photos of men laying around in his home, just as Herb Hamilton had." Id. at 27.
Fourth, the Commonwealth suppressed evidence from Marc Draperregarding the true motive
in this case, as well as the Commonwealth's threats to Mr. Draper. Never-before disclosed evidence
establishes that the Commonwealth coerced Mr. Draper. Mr. Draper, who was found a truthful
witness by Judge Sarmina, testified that he was threatened with prosecution for the Donna Friedman
murder ifhe did not testifY that the offense was only a robbery. He was coached, and because of the
threat he altered his testimony in the way the Commonwealth wanted. The Commonwealth misled
25
the jury about the crime and about the reasons for the testimony of its key witness. 6
Mr. Draper testified at trial, as police and prosecutor Foulkes wanted, that the only motive
in the Norwood killing was robbery. See NT 9/20/12 pm at IS. At the evidentiary hearing, Mr.
Draper explained that he told the Commonwealth, including Sgt. Rosenstein and Ms. Foulkes
herself, that the case involved a "homosexual" relationship between Mr. Williams and Mr. Norwood;
that Mr. Williams snapped at the time of the incident; and that the relationship was the actual reason
why Mr. Norwood was killed.
For example, Mr. Draper testified:
Q.
What did you tell them about that?
A.
That he was a homosexual and that he had a relationship with Terry.
Q.
And did you tell them about what happened in the incident itself before the taperecorded statement?
6It should also be noted that at trial Marc Draper told the jury the only thing he received for
his testimony was a second-degree murder conviction with a mandatory life sentence, and no other
promises or benefits. See NT 9/20/12 am at 161-62. When trial counsel inquired as to whether any
other promises were made to Mr. Draper or his family in exchange for his testimony, Mr. Draper
responded, "No. Nothing at all." See NT 9/20/12 am at 166. Mr. Draper testified at the evidentiary
hearing that he was actually promised that he would be helped with parole, and the letter from
prosecutor Foulkes to the Board supports his testimony.
Mr. Draper's hearing testimony is corroborated by a letter trial prosecutor Andrea Foulkes
wrote on Mr. Draper's behalf to the Board of Probation and Parole on June 23, 1988, which
expressly states that the Board should "consider the cooperation of this inmate when determining
his eligibility for parole or commutation at some future date," and that her letter to the Board was
a "benefit or promise conveyed to him" in exchange for his testimony. PCRA Hearing Exhibit P-15;
NT 9/20112 am at 166. When the Court asked Ms. Foulkes whether she disclosed to the defense the
fact that she agreed to write a letter to the Board on Mr. Draper's behalf, Ms. Foulkes stated, "No,
and I would do it differently today." NT 9/20/12 pm at 25. Further corroboration for Mr. Draper's
hearing testimony was found in Ms. Foulkes' file, which includes her handwritten notes about her
discussions with Mr. Draper stating, inter alia, "Deal- 10 years," and "[a]llow you to plead guilty
to murder, second degree, about ten years." NT 9/20112 pm at 138. Ms. Foulkes' attempts to
explain these entries away as anything but what they obviously are were not credible. This
information was never disclosed to the defense.
26
A.
Yes.
Q.
How Mr. Norwood was killed?
A.
Yes.
NT 9/20/12 pm at 169.
Sergeant Rosenstein told Mr. Draper that he did not want to hear anything about a sexual
relationship between Mr. Norwood and Mr. Williams, but instead threatened Mr. Draper to assert
that it was only a robbery. rd. at 177-78. The evidence from the Homicide files about the
polygraphing ofMr. Draper, who was cold and hungry at the time, as well as the evidence about the
chronology of Mr. Draper's arrest and questioning, support Mr. Draper's account. See PCRA
Hearing Exhibits P-17, P-24-P27. When Mr. Draper told detectives about this sexual connection,
the detectives told him "it was a robbery and that it wasn't no, like, relationship." NT 9/20112 pm
at 178. Mr. Draper agreed to give a false account, as he was told, of Mr. Norwood's killing because
he was scared that he would be prosecuted for the Donna Friedman murder. rd. at 188. So he shaded
his account and told Sergeant Rosenstein, and later Ms. Foulkes, what they wanted to hear - that it
was robbery. rd. at 185; NT 9/24/12 am at 31-33,107.
In addition to informing Sgt. Rosenstein of the true circumstances of the killing - the
relationship between Mr. Williams and Mr. Norwood - Mr. Draper also informed other detectives
and Ms. Foulkes that the reason Mr. Williams killed Mr. Norwood involved a sexual relationship
between the two of them. NT 9/20112 pm at 190,197-198. Mr. Draper testified that none of them
were interested in this account of the offense. rd. Prosecutor Foulkes would not hear it. Therefore,
in his official statements and testimony, Mr. Draper stuck with the directive and gave false testimony
at Mr. Williams' preliminary hearing and trial that Mr. Williams' sole motive was a robbery. rd. at
27
185. Mr. Draper testified that Ms. Foulkes was not truthful when she testified she did not have
information from him that the relationship was the reason for the offense. NT 9/24112 am at 30-31.
Judge Sarmina found Mr. Draper's testimony to be credible and provided multiple bases for
her conclusion. NT 9/28112 at 18, 19. Judge Sarmina found prosecutor Foulkes' testimony to be
not credible in several respects. rd. at 39-45. Judge Sarmina found, inter alia, Ms. Foulkes "at
times, play[ed] games and took unfair measures to win"; "was not candid with the Court" during Mr.
Williams' trial; and exhibited "gamesmanship" evidencing that "she wanted to win and she had no
problem disregarding her ethnical obligations." rd. at 39-45.
Fifth, Judge Sarmina found that prosecutor Foulkes suppressed exculpatory evidence from
Mamie Norwood, the decedent's widow. Here again the Commonwealth "remov[ed] information
that either directly or indirectly demonstrated that the victim was a homosexual ephebophiliac." rd.
at 23. According to a June 1984 police activity sheet, Mrs. Norwood told police
about a time in which she awoke at 2 A.M. to find a young, slim male standing
silently in the hallway of her home. Mrs. Norwood explained to police that her
husband woke her to ask her for money. She then watched as her husband loaded
some stereo equipment into his car, and then he got in and drove off with the young
man. Mrs. Norwood said that her husband returned home around 9 to 10:00 the next
morning and told her a, quote, 'rambling' story about being abducted, but how he
was able to escape using psychology on the captors until they fell asleep. Mrs.
Norwood remembered that he pleaded with her not to get the police involved.
NT 9/28/12 at 25-26.
The version of Mrs. Norwood's statement that was disclosed to the defense, however,
"omitted this portion of her statement entirely." rd. at 26. Indeed, another handwritten note in Ms.
Foulkes' Norwood file states "minister [i.e., Mr. Norwood]- one ofTerry'sjohns." PCRA Hearing
Exhibit C-3; NT 9/20/12 pm at 142-143.
28
There was additional undisclosed evidence of Mr. Norwood's homosexual ephebophilia, as
well as similar information regarding Herbert Hamilton, the decedent in the prior conviction used
as an aggravator against Mr. Williams at the penalty phase. Also, there are numerous undisclosed
statements from witnesses in the Hamilton case attesting to the sexually exploitive and physically
aggressive behavior of Hamilton. Bernard Collins, an eighteen year-old, was interviewed by police
in relation to the Hamilton murder. He informed police that Mr. Hamilton forced boys to have sex
at his apartment. PCRA Hearing Exhibit P-13 at 3; NT 9/20/12 am at 152-53. Specifically, Mr.
Collins told police that when he was fifteen or sixteen years old, he went to Mr. Hamilton's house
where he was told to have sex with a man whose name Mr. Collins did not remember, and that Mr.
Hamilton "would stand in the doorway and jerk-off and say things like 'suck that dick, bitch;' and,
'Fuck that ass!'; and crazy things like that. He had a baseball bat and onetime I wanted to leave and
he said that he would get his baseball bat and hit me with it .... " Id. During the hearing, Ms. Foulkes
was asked whether she was aware of this information when she made her closing argument in the
Norwood trial (which included her characterization ofMr. Hamilton as an innocent older man). NT
9/20/12 am at 153-54. Judge Sarmina then engaged in the following exchange:
THE COURT:
From everything that you reviewed about Hamilton in that trial, all
the evidence that was collected from his room, etc., was your ultimate
view that he was an innocent guy? I'm not saying he deserved to be
killed; I'm saying that he was an innocent guy?
THE WITNESS:
Well, he was certainly leading a deviant lifestyle, but there - the
evidence in that case, other than Mr. Collins, was that his relations
with men as a homosexual were consensual. It was a deviant
lifestyle, no question.
29
NT 9/20112 am at 154-55.7
Judge Sannina explained that "the items I have cited as to comments regarding
homosexuality that were in Ms. Foulkes' notes and that were made exhibits during the course of the
[PCRA proceedings] both by petitioner, as well as by the court exhibits, [are] not ... exclusive. There
are more; I just haven't spoken to every single item." NT 9/28/12 at 48.
In her closing argument at the penalty phase of the Norwood trial, Ms. Foulkes told the jury
that Mr. Williams was surrounded by "people that have loved him and cared for him" and were
"supportive." NT 2/3/86 at 1875-76. Ms. Foulkes told the jury that Mr. Norwood was a "kind man"
who "offered [Mr. Williams] a ride home," an "innocent" man who was killed solely for money and
for no other "conceivable" reason. NT 2/3/86 at 1873, 1875. She painted a similar picture ofMr.
Hamilton, portraying Mr. Hamilton and Mr. Norwood as "two innocent lives," "two innocent ...
persons who were older" and "unable certainly to defend themselves." NT 2/3/86 at 1875-76. She
claimed that Mr. Williams "had no reason to commit these crimes" other than greed and malice. NT
2/3/86 at 1877.
Judge Sannina found that Mr. Williams demonstrated Brady materiality where the
Commonwealth suppressed exculpatory material and provided the defense, and jury, with materially
"sanitized" and inaccurate information. As Judge Sannina noted, "[t]here is no better proof that
prejudice ensued than Ms. Foulkes' own admission. As someone who had the privilege of viewing
the suppressed evidence in the government's possession collectively," she "stated of course she felt
like there was a homosexual relationship between petitioner and Norwood because she was able to
7Ms. Foulkes subsequently agreed with Mr. Williams' counsel that "a teenager would not
have the legal ability to consent" under these circumstances. Id. at 155.
30
connect all of the dots." NT 9/28112 at 47. And,
[h]ad reasonable defense counsel been given all of the dots, that attorney, too, would
have been able to connect them, and, at the very least, stand up in closing in response
to Ms. Foulkes' penalty phase statement that there was no other reason and argue that
there is enough evidence to suggest that Amos Norwood was a homosexual
ephebophile who was taking advantage of petitioner. The existence of an
unsympathetic victim can be, in and of itself, sufficient to undermine one's
confidence that the jury would have returned the same verdict of death.
NT 9/28/12 at 47. And,
[w]ithout this evidence, petitioner's counsel was given a skewed and incomplete
picture of the victim, which effectively ties his hands while the prosecution elicited
testimony at trial about his kind and caring character. If disclosed, the cumulative
impact of this impeachment evidence would have enabled petitioner's counsel to
challenge the government's sympathetic portrayal of the victim. Ultimately, the
nondisclosure of that evidence undermines confidence in the jury's death sentence.
Id. at 23-24.
In this context, the Commonwealth's claim that it is excused from its Brady obligations
because of Mr. Williams' testimony at trial fails. Brady due process analysis requires courts to
determine materiality based on how reasonable counsel could have used the suppressed evidence.
At issue here is the lower court's lack of confidence in the verdict of Mr. Williams' penalty phase
- a phase in the proceedings in which Mr. Williams' trial testimony was already rejected by the jury.
a.
Brady and its progeny require courts to consider how reasonable defense counsel
would have used the suppressed evidence.
Brady materiality analysis requires a court to consider the impact of suppressed evidence on
"the preparation or presentation of the defendant's case" and to consider "the course that the
defense" could have pursued ifthe material had been disclosed and "used effectively" by the defense.
United States v. Bagley 473 U.S. 667, 676, 683 (1985); see also Kyles v. Whitley, 514 U.S. 419,
441-449 (1995) (reviewing ways in which competent counsel could have used and developed
31
suppressed information to impeach prosecution witnesses and undercut police investigation);
Simmons v. Beard, 590 F.3d 223, 233-236 (3d Cir. 2009) (finding Brady violations material because
defense counsel could have used suppressed evidence to "effectively attack[] the Commonwealth's
case").
Effective defense counsel, armed with this suppressed information, would not have called
Mr. Williams as a witness. B Instead, reasonable counsel would use the suppressed evidence to negate
a first degree murder conviction, and to persuade the jury at capital sentencing not to impose death.
Indeed, the jury in the Hamilton trial, which took place one year prior to the Norwood trial, did not
accept the Commonwealth's first-degree murder charge, but instead found Mr. Williams guilty of
third-degree murder after it heard evidence that Mr. Hamilton was involved in homosexual acts with
teens, i.e., the same kind of evidence prosecutor Foulkes suppressed as to decedent Norwood in the
capital case.
b.
The materiality analysis under Bradv is not undermined by the defense that was
presented at trial, but insteadfocuses on the Commonwealth's duty to disclose.
"When police or prosecutors conceal significant exculpatory or impeaching material in the
State's possession, it is ordinarily incumbent on the State to set the record straight." Banks v.
Dretke, 540 U.S. 668, 675-76 (2004). A rule declaring otherwise, that a "prosecutor may hide,
defendant must seek, is not tenable in a system constitutionally bound to accord defendants due
process." Id. at 696 (citations and quotation omitted).
Here, the prosecution withheld evidence which would have fundamentally informed and
altered the defense strategy. The Commonwealth cannot now argue that Mr. Williams should not
BMr. Williams' trial counsel actually met with him for the first time the day before voir dire
began. Brady instructs the Court to consider how reasonable counsel would have used the evidence.
32
be afforded relief as to the penalty phase because he chose a defense at trial in reliance on the
Commonwealth's "sanitized" version of the case. Instead, courts must analyze how the suppressed
material could have been used in preparation for the defendant's case. Bagley. 473 U.S. at 683.
Judge Sarmina did this and properly granted relief as to the death sentence.
c.
The materiality analysis at issue focuses solely on the penalty phase.
Governmental suppression of evidence violates due process "where the evidence is material
either to guilt or to punishment." Brady. 373 U.S. at 87. The United States Supreme Court, in
Banks and Cone, has reiterated that suppressed evidence could be material to the penalty phase,
regardless of materiality for purposes of the guilt phase.
See Banks, 540 U.S. at 699-703
(suppression of evidence concerning important prosecution witness material as to capital
sentencing); Cone, 556 U.S. at 473 ("As in Brady, the distinction between the materiality of the
suppressed evidence with respect to guilt and punishment is significant in this case. ").
Banks is particularly instructive. In Banks the prosecution withheld evidence concerning two
witnesses - that one was a paid informant, and that the other "had been intensively coached by
prosecutors and law enforcement officials." Banks, 540 U.S. at 675. Finding the suppressed
evidence was material, the court stated:
At least as to the penalty phase, in sum, one can hardly be confident that Banks
received a fair trial given the jury's ignorance ofFarr's true role in the investigation
and trial of this case .... Accordingly, as to the suppression of Farr's informant
status and its bearing on "the reliability of the jury's verdict regarding punishment,"
all three elements of a Brady claim are satisfied.
Id. at 702-03 (citation omitted).
Here, as in Banks, a critical Commonwealth witness (Marc Draper) was coached to falsely
testifY that the only motivation for the murder was robbery. (And more than in Banks, Mr. Draper
33
was actually threatened with prosecution for the Donna Friedman homicide in an effort to mold his
account.) Two other Commonwealth witnesses, Reverend Charles Poindexter and Mamie Norwood,
attested to Mr. Norwood's good character, when in fact they had told the Commonwealth that the
truth was otherwise.
Prosecutor Foulkes relied on Mrs. Norwood's and Reverend Poindexter's sanitized testimony
about Mr. Norwood, and Mr. Draper's coached testimony about the circumstances of the offense,
to argue that Mr. Williams killed Mr. Norwood "for no other reason but that a kind man offered him
a ride home," that Mr. Williams had "taken two ... innocent lives," and that Mr. Williams "had no
reason to commit these crimes." NT 1873, 1876-1877. When prosecutor Foulkes gave this false and
misleading statement to the jury, Mr. Williams' testimony had already been rejected by the jury. The
calculus of a reasonable defense counsel's strategic decisions had thus changed. See Florida v.
Nixon, 543 U.S. 175, 191 (2004). As in Banks, the actual circumstances and underlying motives in
this offense would have put the penalty phase case "in such a different light as to nndermine
confidence in the verdict." Banks, 540 U.S. at 698.
The Commonwealth asserts repeatedly that because Mr. Williams was aware of his abuse at
the hands of Mr. Hamilton and Mr. Norwood there was no duty on the part of the Commonwealth
to turn over evidence of that abuse. The Commonwealth's argument is plainly erroneous for several
reasons.
The notion that any time a criminal defendant knows a particular piece of information, the
Commonwealth is somehow relieved of its Brady obligations is absurd on its face and is not the law.
Under the Commonwealth's theory, the prosecution would have no duty to turn over a witness
statement that places the defendant in a different city at the time ofthe crime because the defendant
34
himself would necessarily know that he was out of town at the time of the crime.
The
Commonwealth is simply not free to suppress exculpatory information, as Judge Sarmina has found.
See, M" Cone, 556 U.S. at 475 (prosecution violated Brady by withholding evidence that Cone was
high on drugs, something that Cone knew); Brady, 373 U.S. at 84 (govermnent violated due process
by failing to disclose evidence that Brady's co-defendant was the actual killer, a fact that was known
to Brady).
Furthermore, the claims in this case are not predicated exclusively on facts that were within
the knowledge ofMr. Williams. Instead, as Judge Sarmina found, they are predicated on the fact
that various witnesses had disclosed to the Commonwealth evidence that Mr. Norwood was an
ephebophile. NT 9/28/12, 16. They also are predicated on the facts - unknown to Mr. Williamsthat Mr. Draper had communicated the actual reasons for the crime to the Commonwealth, but had
been coached not to discuss it; and that thereafter the Commonwealth knowingly presented false
testimony from Mr. Draper that the homicide was committed for the purpose of robbing Mr.
Norwood, which the Commonwealth failed to correct.
All of those facts were known only to individuals other than Mr. Williams, including Mr.
Draper, who was unwilling to communicate them because he had been threatened with the possibility
of a death sentence in the Donna Friedman homicide case, NT 9/20/12 pm at 211-12; NT 9/24/12
pm at 20-21, and to the prosecuting authorities, who did not disclose them. See NT 9/20/12 pm at
120-23; PCRA Hearing Exhibit C-2 at 2 (testimony concerning note in Ms. Foulkes' handwriting
about allegation of sexual abuse on part ofMr. Norwood); PCRA Hearing Exhibit P-24 (undisclosed
statement by Rev. Poindexter about allegations of sexual abuse on part of Mr. Norwood). Based on
that evidence, Judge Sarmina found that the prosecution "sanitized the statements of two witnesses,
35
Mamie Norwood and Reverend Charles Poindexter, removing information that either directly or
indirectly demonstrated that the victim was a homosexual ephebophiliac," and that Ms. Foulkes
"failed to disclose information in her possession that the victim had made sexual advances on a
teenage member of his church, and that there were other possible instances of sexual impropriety."
NT 9/28/12, 23.
The withheld evidence would have impeached the testimony of Reverend Poindexter and
Mamie Norwood, both of whom painted a benign, loving, caring and starkly inaccurate portrait of
Mr. Norwood. See NT 9/28/12, 35-36 ("Had the evidence detailed above been disclosed, it could
have been used by a reasonable defense ~ttomey to impeach the testimony of both Mamie Norwood
and Reverend Charles Poindexter, in which they characterize Mr. Norwood as a kind church
volunteer who wanted to help out the kids ofthe neighborhood").
Mr. Williams' knowledge that he was sexually abused by Mr. Norwood did not relieve the
Commonwealth of its duty under the Due Process Clause. The Commonwealth's suppression of
evidence is particularly egregious given that it has argued for years that Mr. Williams' claims of
sexual abuse are self-serving and defamatory.
Judge Sarmina correctly found that the
Commonwealth violated due process.
JUDGE SARMINA PROPERLY STAYED MR. WILLIAMS' EXECUTION
Given her findings and ruling on jurisdiction, timeliness, and the merits, Judge Sarmina
properly exercised her discretion under this Court's precedent to grant a stay of execution. As Judge
Sarmina stated on September 28,2012:
The Court finds that the petitioner is entitled to a stay of execution under Section
9545(c), given that petitioner has met his burden under Morris II to, quote,
demonstrate:
36
One, that all the requirements of this subchapter have been met;
Two, that there is a pending stay application;
And, Three, that there is a strong likelihood of success on the merits.
Petitioner exceeded the strong likelihood threshold, demonstrating actual success on
the merits with respect to the penalty phase.
Under section 9545(c), petitioner needed to demonstrate that he met all the
requirements of this subchapter.
Both Morris I and Morris II make it explicitly clear that the above language
incorporated the jurisdictional provision of Section 9545(b) into the analysis of
granting a stay of execution.
For this Court to have jurisdiction, that is, the power or authority to reach the merits
of his claims, petitioner must have established that his claims fall under at least one
of three narrowly defined exceptions to the PCRA.
Here, petitioner maintained that he had met the following two exceptions:
One, which is actually Subsection i, that the failure to raise the claim previously was
the result of interference by government officials with the presentation of the claim
in violation of the Constitution or laws of this Cornmonwealth, or the Constitution
or laws of the United States;
And, ii, that the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due diligence.
This Court has jurisdiction in this case, given that petitioner demonstrated
governmental interference pursuant to Section 9545(b)(1 )(i), and that the claim,
which could not have been raised earlier with the exercise of due diligence, was filed
within 60 days ofthe date that it first could have been presented pursuant to Section
9545(b)(2).
Petitioner has proved that failure to raise the claim previously was the result of
interference by government officials with the presentation of the claim in violation
of the Constitution.
NT 9/28/12 at 13-15.
We note thatto lift the stay put in place by Judge Sarmina would disserve the public interest.
37
Both the decedent's spouse and several jurors from Mr. Williams' trial have expressed their
opposition to his execution. The case has garnered extensive attention, with all three major
Pennsylvania newspapers weighing in against the execution. Moreover, several organizations have
been joined by hundreds of thousands of Pennsylvania, national and international voices opposed
to Mr. Williams' execution.
The Decedent's Spouse: The views of the decedent's spouse in this case are relevant to
analysis of the public interest. Mamie Norwood, the decedent's wife, does not wish to see Terry
Williams executed, and has filed a declaration stating so. See Declaration of Mamie Norwood, App.
24 to Petition. Mrs. Norwood also wrote personal letters to Governor Corbett and the Pennsylvania
Board of Pardons requesting that Mr. Williams' life be spared and that his sentence be commuted
to life without the possibility of parole.
The Jurors: The views of original jurors in this case are relevant to an analysis of the public
interest. Jurors from Mr. Williams' trial and capital sentencing have provided sworn statements
indicating that they would not have sentenced Mr. Williams to die had they known the information
that has now come to light. Like the decedent's spouse, the original trial jurors do not want Mr.
Williams to be executed. See Declarations of Debra L. Pagano, Diane M. Brown, Hasan S. Moss,
Thomas Sturgis and Welton Maisenhelder, Apps. 19-23 to Petition. 9
The General Assembly: In December 20 11, the General Assembly passed Senate Resolution
6, "Directing the Joint State Government Commission to establish a bipartisan task force and an
advisory committee to conduct a study of capital punishment in this Commonwealth and to report
9See also www.cnn.com/video/#/video/crime/2012/09/24/carroll-pa-clemency-case.cnn ("I
feel betrayed ... we weren't given everything we needed to know").
38
their findings and recommendations.,,10
On September 13,2012, members of the bipartisan Pennsylvania Task Force and Advisory
Committee on Capital Pnnishment called on Governor Tom Corbett to postpone all upcoming
executions until it completes its study of the death penalty and issues its findings in December 20 13.
Two of the four task force members, Senators Stewart Greenleaf(R) and Daylin Leach (D), and a
dozen members of the advisory committee signed the letter to the Governor. As they wrote, "[We1
do believe that carrying out an execution before our work is completed over the next fifteen months
would greatly undermine the legislative intent of Senate Resolution 6 - a comprehensive study of
the effectiveness of capital punishment in Pennsylvania, as it pertains to cost, fairness,
proportionality, impact, and many other factors."
The Press: In recent editorials addressing Mr. Williams' case, all three major Pennsylvania
news periodicals and a leading national publication have weighed in against his execution. See
Philadelphia Inquirer, Editorial, "Justice Doesn't Require Death," Aug. 15, 2012; Philadelphia
Inquirer, Editorial, "Executing Terrance Williams won't bring victim back," Sept. 12, 2012;
Philadelphia Inquirer, Editorial, "Execution isn't appropriate," Sept. 12,2012; New York Times,
Editorial, "Pennsylvania's Broken Machinery of Death," Sept. 13,2012; Patriot-News, Editorial,
"Fatal flaw: Pardons board needs to make change on death penalty cases," Sept. 23, 2012; Pittsburgh
Post-Gazette, Editorial, "Abused to death? A killer who was molested should not be executed," Sept.
23,2012; Pittsburgh Post-Gazette, Editorial, "A killer who says he was raped deserves clemency,"
Sept. 27, 2012; Patriot-News, "Pennsylvania's big question:
To kill or not to kill Terrance
Williams," Sept. 27, 2012; Philadelphia Inquirer, Editorial, "Time to call off Terrance Williams'
10Available at http://www.govtrack.us/states/palbills/2011-2012/sr6.
39
execution," Sept. 27, 2012.
Public Concern: Public interest organizations dedicated to providing support for sex abuse
victims and victims generally have beenjoined by hundreds of thousands of voices opposed to Mr.
Williams' execution. These include: over 375,000 signatories to a petition calling on Governor
Corbett, The Board of Pardons and District Attorney Seth Williams to grant clemency;!! The
Pennsylvania Coalition Against Rape; Murder Victims' Families for Human Rights; Berks Women
in Crisis; HAVIN; Survivors, Inc.; National Alliance to End Sexual Violence; National Association
of Social Workers, Pennsylvania Chapter; Pennsylvania Coalition Against Domestic Violence;
National Center on Domestic and Sexual Violence; National Clearinghouse for the Defense of
Battered Women; Charles J. Chaput, O.F.M. Cap., Archbishop of Philadelphia; Catholic Bishops
ofPennsylvania; Sisters ofDivine Providence in Pittsburgh; Council on American-Islamic Relations;
The Enough Project; Arkansas Coalition Against Sexual Assault; California Coalition Against
Sexual Assault; Colorado Coalition Against Sexual Assault; Sexual Assault Network of Delaware;
Iowa Coalition Against Sexual Assault; Maryland Coalition Against Sexual Assault; Michigan
Coalition to End Domestic and Sexual Violence; New York State Coalition Against Sexual Assault;
Ohio Alliance to End Sexual Violence; Day One, the Rhode Island Coalition Against Sexual Assault;
Tennessee Coalition to End Domestic and Sexual Violence; Texas Association Against Sexual
Assault; Vermont Network Against Domestic and Sexual Violence; West Virginia Foundation for
Rape Information and Services; ALAS, the National Latina Alliance Against Sexual Violence;
National Alliance to End Sexual Violence; Arte Sana; Crime Victim Center of Erie County; HAVIN;
!!http://www.change.org!petitions/governor-tom-corbett-pa-board-of-pardons-district-atto
rney-seth-williams-grant-clemency-to-terrance-williams-survivor-of-child-sexual-abuse
40
Sexual Assault Resource and Counseling Center; Wise Options; The European Union; The Council
of Europe.
The Pennsylvania Board o/Pardons: On September 17, 2012, a three member majority of
the Pennsylvania Board of Pardons voted to grant clemency to Mr. Williams. Notably, the members
of the Board who voted in favor of clemency were the three who are most familiar with victims of
sexual abuse and victims generally - Attorney General Linda Kelly, the Victim's Representative, and
the Board's mental health expert. However, under current Pennsylvania law a unanimous Board
recommendation for clemency is necessary to reach the Governor's desk.
On September 18, 2012, a request for reconsideration of Mr. Williams' application for
clemency was filed with the Board of Pardons on the basis of material misrepresentations by the
District Attorney's Office at the clemency hearing. On September 27, 2012, the Board reconvened
and by a vote of 4-1, agreed to reconsider Mr. Williams' application for clemency. That same day,
after hearing Mr. Williams' argument and presentation of newly disclosed evidence, as well as the
prosecution's response, the Board of Pardons unanimously voted to hold Mr. Williams' application
for clemency under advisement.
Thus, the two members of the Board who previously had voted against clemency agreed that
Mr. Williams had presented new evidence that was significant enough to warrant reconsideration
and further deliberation. Under these circumstances, surely the public interest counsels that the stay
of execution not be lifted.
RECUSAL OF CHIEF JUSTICE CASTILLE
Respondent respectfully submits that Chief Justice Castille should recuse himself and, if
Chief Justice Castille declines to do so, Respondent respectfully requests that the full Court review
41
the recusal issue. There are valid grounds making recusal appropriate under the Eighth and
Fourteenth Amendments to the United States Constitution, and under Pennsylvania law, as stated
in the appended and separately filed motion for recusal. These grounds include that Chief Justice
Castille personally authorized his Office to seek the death penalty in this case. The factual predicate
and legal analysis supporting recusal are stated in the appended motion for recusal.
42
CONCLUSION
The Commonwealth's motion to vacate the stay of execution entered by the Honorable M.
Teresa Sarmina should be denied.
Respectfully submitted,
LEIGH M. SKIPPER
Chief Federal Defender
BY:
~~I
Billy H. Nolas
PABarNo.83177
Shawn Nolan
PA Bar No. 56535
Assistant Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 545 West - The Curtis Center
Philadelphia, PA 19106
(215) 928-0520
Counsel for Terrance Williams
43
CERTIFICATE OF SERVICE
I hereby certifY that on this date I caused a copy of the foregoing to be served upon the
following person at the location and in the manner indicated below, which services satisfies the
requirements ofPa.R.App.P. 121:
VIA HAND DELIVERY
Hugh Burns, Esq.
Office ofthe District Attorney
3 Penn Square South
Philadelphia, P A 19107
Billy Nolas
Dated:
October 1,2012
Philadelphia, PA
ATTACHMENT A
Com. v. Terrance Williams
Hugh.Sums to: patricia.johnson
09/28/201203:45 PM
Cc: Billy-Nolas
History:
This message has been forwarded.
2 attachments
Williams, Terrance - SUP - PFR capital stay ord V2.pdfWiliiams T Order and Opinion 9 28 12.pdf
MS. Johnson -- As explained when I called -- here is a pdf of the document
we are filing in hard copy right about now, as well as of the PCRA court's
attached opinion and order of this date.
Thanks, HB
(See attached file: Williams, Terrance - SUP - PFR capital stay ord V2.pdf)
(See attached file: Williams T Order and Opinion 9 28 12.pdf)
ATTACHMENT B
IN THE SUPREME COURT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
Petitioner,
No. 163 EM 2012
v.
TERRANCE WILLIAMS,
Respondent.
RESPONDENT'S MOTION TO RECUSE CHIEF JUSTICE CASTILLE
Respondent Terrance Williams, through counsel, respectfully moves for recusal of Chief
Justice Ronald D. Castille from the instant proceedings. In support of this motion, Mr. Williams
states as follows: 1
1.
ChiefJustice Castille was the District Attomeyfor Philadelphia from January 1, 1986
until March 12, 1991.
2.
Chief Justice Castille personally authorized his Office to seek the death penalty in
this case, hand-writing the following on a memorandum to Mark Gottlieb, Chief of his Office's.
Homicide Unit, which was introduced as an exhibit during the recent PCRA evidentiary hearing:
Mark,
Approved to proceed on the Death Penalty.
Is! Ronald D. Castille
PCRA Evidentiary Hearing Exhibit P-1, Memorandum to Mark Gottlieb, Chief, Homicide Unit, page
2 (dated 1121/86) (appended as exhibit A); see also NT 9/20/12 (am.) at 11 (trial prosecutor Andrea
Foulkes identifies ChiefJustice Castille's signature on this document as authorizing the approval to
proceed on the death penalty).
tAll emphasis herein is supplied unless otherwise indicated.
3.
Chief Justice Castille was the District Attorney throughout the trial, capital
sentencing, post-trial, and direct appeal proceedings in this case.
4.
On direct appeal in Mr. Williams' case, the Philadelphia District Attorney's Office
filed a Brief in the Pennsylvania Supreme Court, asking the Court to affirm Mr. Williams'
convictions and death sentence. Then-District Attorney Castille is identified as one of the listed
counsel for the Commonwealth on the cover and signature page of the Brief (appended as exhibit
B).
5.
In the current PCRA proceedings, evidence was introduced that, on June 23, 1988,
trial prosecutor Foulkes wrote a letter to the Pennsylvania Board of Probation and Parole on behalf
of Marc Draper, a key Commonwealth witness at Mr. Williams' trial. See PCRA Evidentiary
Hearing Exhibit P-15 (appended as exhibit C). The letter asks the Board to "consider [Mr. Draper's1
cooperation ... when determining his eligibility for parole or commutation," and notes that this
recommendation from the prosecutor was a "benefit or promise conveyed to" Mr. Draper in
exchange for his testimony against Mr. Williams. Id. at 2. The trial prosecutor testified at the recent
PCRA hearing that this promise to the Commonwealth's witness was not disclosed to the defense
at trial. In her PCRA ruling, Court of Common Pleas Judge Sarrnina cited this undisclosed
inducement, among several other items of evidence, as evidence demonstrating that the trial .
prosecutor suppressed eXCUlpatory evidence, played "fast and loose" with the truth, "had no problem
disregarding her ethical obligations," and "took unfair measures to win." NT 9/28/12 at 37,3945.
Although Chief Justice Castille is not the signatory of the letter, the letter is written on the official
letterhead of the Philadelphia District Attorney's Office and the sole name on the letterhead is
"Ronald D. Castille, District Attorney." Iffor no other reason than the appearance of impropriety,
Respondent respectfully suggests that recusal is appropriate for this reason as well.
6.
In 1993, Chief Justice Castille campaigned for a position as a Justice on the
2
Pennsylvania Supreme Court. His election campaign stressed his record as Philadelphia's District
Attorney and, in particular, emphasized then-District Attorney Castille's pursuit of capital
punishment and that, as District Attorney, he "put 45 people on death row," one ofwhom is Terrance
Williams, Respondent on the pending Commonwealth motion to vacate the stay of execution.
Examples include:
*
"Castille had campaigned as the law-and-order candidate, amng television
commercials portraying [his opponent] as being soft on crime." Lisa Brennan,
"Republicans Win Court Seats,"LEGALlNTELLIGENCER(NoV. 4, 1993) (available on
Westlaw, 11/4/1993 TLI 1);
•
"Castille, a former Philadelphia district attorney, had campaigned as the
self-proclaimed law-and-order candidate, airing television commercials portraying
his Democratic opponent as soft on crime." Associated Press, "Castille Wins Top
Court Seat," ALLENTOWN MORNJNG CALL (Nov. 3, 1993) (available on Westlaw,
1993 WLNR 1864290);
•
"Castille ... campaigned as the tough-as-nails scourge of criminals .... Castille's
career as Philadelphia's district attorney, where he built a reputation as a
law-and-order crime buster, thrust him in the public eye." Katharine Seelye,
"Castille Defeats Nigro for Seat on Supreme Court," PmLADELPHIAlNQUJRER (Nov.
3, 1993) (available on Westlaw, 1993 WLNR 1995447);
*
"Castille [ran] a law-and-order campaign, touting his 45 death-penalty convictions
and saying [his opponent] was soft on crime .... 'My campaign was basically that I've
spent 20 years in law enforcement as a prosecutor, and the citizens want somebody
who's tough on crime. My record's been just that,' Castille said early this morning."
Tim Reeves, "Castille Leads GOP Sweep of Courts," PITTSBURGH POST-GAZETTE
(Nov. 3,1993) (available on Westlaw, 1993 WLNR 2163040);
*
"[W]hen he is asked why he wants to serve on the Supreme Court, what qualifies
him, why voters should support him, he starts with his experience in Vietnam, works
up to his record as Philadelphia district attorney and caps his pitch by declaring that
he put 45 murderers on death row. Because he served in combat and as a prosecutor,
he says, he is a proven law-and-order guy, tough on crime, eats nails for breakfast."
"Castille used his first television ads to attack [his opponent], saying [his opponent]
was lenient on drug dealers .... Castille's TV spots conclude: 'If you are looking for
a law-and-order guy - Ron Castille. He put 45 murderers on death row and has been
endorsed by the over 36,000 professional police officers in Pennsylvania '"
Katharine Seelye, "Castille Emphasizes Law-and-Order Image," PHILADELPHIA
3
INQUIRER (Oct. 21, 1993) (available on WestIaw, 1993 WLNR 1992136);
*
"Castille· ... hopes a law-and-order message, coupled with name recognition in
southeastern Pennsylvania, will help him win .... 'When I start talking about court
reform, people's eyes glaze over,' he said. 'When I tell them about (my) sending
criminals to death row or how I fought the Mafia in Philadelphia, then they're
interested. ", Frank Reeves, "Castille Preaches Law-and-Order Message to Voters,
PITTSBURGHPOsT-GAZEITE (Oct. 18,1993) (available on Westlaw, 1993 WLNR
2134084);
*
"Castille and his prosecutors sent 45 people to death row during their tenure,
accountmg for more than a quarter of the state's death row population. Castille wears
the statistic as a badge. And he is running for the high court as if it were exclusively
the state's chief criminal court rather than a forum for a br9ad range oflegal issues .
... Castille talks about bringing a prosecutor's perspective to the bench." Tim
Reeves, "High Court Hopefuls Pressing for Change," PITTSBURGH POST-GAZETTE
(Oct. 17, 1993) (available on Westlaw, 1993 WLNR 2117584);
*
"Castille's [TV] ad portrays [his opponent] as soft on crime and offers Castille, a
former Philadelphia district attorney, as the 'law-and-order' alternative .... The ad ...
says Castille has put 45 people on death row and has received the endorsement of
more than 36,000 police officers in the state." "Nigro, Castille Begin TV
Campaign," LEGAL INTELLIGENCER (Oct. 14, 1993) (available on Westlaw,
1011411993 TLI 3); Katharine Seelye, "Judicial Candidates Begin Courting the TV
Audience," PHILADELPHIA INQUIRER (Oct. 12, 1993) (available on Westlaw, 1993
WLNR 1991534) (same);
*
"Some candidates ... skated perilously close to saying how they might be expected
to rule on issues that could come before them as judge. Take, for example, Supreme
Court Justice-elect Ron Castille - who, while pursuing ajob requiring him to hear
death-penalty appeals, bragged that he sent 45 people to death row when he was a
prosecutor." Lynn Marks & Ellen Kaplan, "Disorder in the Courts," PITTSBURGH
POST-GAZEITE (Nov. 14, 1993) (available on Westlaw, 1993 WLNR 2150772);
*
Candidates "Castille, Nigro and Surrickare aware that special interest groups capable
of giving money to control votes would love to hear their positions on gun control,
abortion, the death penalty or imy hot issue of the day. Under the current [legal]
restrictions, Castille says if candidates take positions then they'll have to recuse
themselves from any decisions in those cases. 'There's really no solution to it,'
Castille says. 'You ask people to vote for you, they want to know where you stand
on the death penalty. I can certainly say I sent 45 people to death row as District
Attorney ofPhiladelphia. They sari ofget the hint. ", Lisa Brennan, "State Voters
Must Choose Next Supreme Court Member," LEGALINTELLIGENCER (Oct. 28, 1993)
4
(available on Westlaw, 10/28/1993 TLI 1).
7.
Chief Justice Castille was elected and assumed his position on the Pennsylvania
Supreme Court in January 1994.
8.
Since Chief Justice Castille assumed the Bench, undersigned counsel's office has
sought Chief Justice Castille's recusal from several Philadelphia capital PCRA appeals, arguing that
recusal was appropriate because ofChiefJustice Castille's role as Philadelphia's District Attorney
during some earlier stage of the case. Chief Justice Castille denied recusal in those cases. See, U,
Commonwealth v. Porter, 35 A.3d 4, 29 (pa 2012) (recusal opinion of Castille, C.J.);
Commonwealth v. Beasley, 937 A.2d 379 (pa 2007) (recusal opinion of Castille, J.);
Commonwealth v. Rainey. 912A.2d 755 (Pa. 2006) (recusal opinion ofCastiIIe, J.); Commonwealth
v. Jones, 663 A.2d 142 (pa. 1995) (recusal opinion ofCastiIle, J.); Commonwealth v. Williams, 732
A.2d 1167, 1174 (Pa. 1999).
9.
Chief Justice Castille's most recent opinions denying recusal motions based in part
on his earlier role as District Attorney suggest and/or expressly state that undersigned counsel's
office is acting in bad faith by seeking ChiefJustice Castille's recusal. See, U, Rainey. 912 A.2d
at 759 (accusing counsel of "reckless disregard" and writing "scurrilously''); id. at 760 (stating that
counsel's "unsupported 'factual' averments are utterly false ... "); id. at 760 n.3 ("It bears noting,
given the nature of the instant allegations, that the attorney's oath of office includes a pledge to 'use
no falsehood.' ... In addition, the Rules of Professional Conduct prohibit lawyers from knowingly
making a false statement of material fact or law to a tribunal ...."); id. at 761 ("1 certainly hope that
the Chief Defender did not personally review and approve as a 'policy' matter the falsehoods that
are the basis for [counsel's] argument contained herein."); id. at 761 (stating that counsel's
"allegations are as bereft offactual support as they are distressingly unmindful of his sworn duties
as a lawyer and officer of this Court"); id. at 761 ("reckless nature of [counsel's] baseless
5
allegation");
Beasley.
937
A.2d
at
381
(accusing
counsel
of "false
statements,"
"mischaracterizations" and "ethical lapses"); id. at 382 (asserting that counsel made "scandalous
misrepresentations in Rainey"); id. at 382 (asserting that counsel's actions in Rainey were "unethical
representation"); id. at 383 (suggesting that counsel "betray[ed] contempt for ethical standards" and
"contempt for [the] court"); id. at 383 (asserting that counsel is in "dogged pursuit of a poor
reputation"); Porter, 35 A.3d at 33 (rejecting counsel's "repetitious complaint that my former
position as the elected District Attorney of Philadelphia County requires my recusal" for reasons
stated in "multiple prior opinions" (citing Beasley)); id. at 34 (asserting that counsel's requests for
Chief Justice Castille's recusal reflect counsel's "perverse worldview"); id. at 34 (suggesting that
counsel's recusal motions violate "professional ethical obligations").
ARGUMENT
10.
Chief Justice Castille's recusal from this matter is appropriate under Pennsylvania
law, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and
the Eighth Amendment to the United States Constitution.
11.
Moreover, should Chief Justice Castille decline to recuse himself, the Due Process
Clause and the Eighth Amendment require that the recusal issue be considered and decided by the
full Court.
I.
DUE PROCESS AND THE EIGHTH AMENDMENT REQUIRE CHIEF JUSTICE CASTILLE'S
RECUSAL
12.
"The Due Process Clause entitles a person to an impartial and disinterested tribunal
in both civil and crinrinal cases." Marshall v. Jerrico. Inc., 446 U.S. 238, 242 (1980); accord In re
Murchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of due
process."). This due process right "has been jealously guarded by [the United States Supreme]
Court" because it "preserves both the appearance and reality of fairness, generating the feeling, so
importantto a popular government, that justice has been done." Marshall, 446 U.S. at 242 (citation
6
and internal quotation marks omitted). And this due process requirement takes on even greater
significance in a capital case, because of the Eighth Amendment's heightened due process
requirements. E.g., Lockett v. Ohio, 438 U.S. 586, 604 (1978); Woodson v. North Carolina, 428
U.S. 280, 305 (1976).
13.
A fair, "impartial and disinterested tribunal," as required by the Eighth and Fourteenth
Amendments, requires not just "an absence of actual bias" - there must not be "even the probability
of unfairness," and '''justice must satisfy the appearance of justice. '" In re Murchison, 349 U.S. at
136 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954». As the United States Supreme Court
most recently stated in Caperton v. Massey Coal Co., 556 U.S. 868 (2009): "Under our precedents
there are objective standards that require recusal when 'the probability of actual bias on the part of
the judge or decisionmakeris too high to be constitutionally tolerable. '" Id. at 872 (quoting Withrow
v. Larkin, 421 U.S. 35, 47 (1975». The Supreme Court further explained:
The difficulties of inquiring into actual bias, and the fact that the inquiry is often a
private one, simply underscore the need for objective rules, Otherwise there may be
no adequate protection against a judge who simply misreads or misapprehends the
real motives at work in deciding the case. The judge's own inquiry into actual bias,
then, is not one that the law can easily superintend or review, though actual bias, if
disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive
reliance on that personal inquiry, or on appellate review of the judge's determination
respecting actnal bias, the Due Process Clause has been implemented by objective
standards that do not require proof of actual bias.
Caperton, 556 U.S. at 883.
14.
These "objective standards" require recusal when the situation "offer[s] a possible
temptation to the average man as a judge ... not to hold the balance nice, clear and true between the
State and the accused." Caperton, 556 U.S. at 878 (quoting Tumey v. Ohio, 273 U.S. 510, 532
(1927»; id. at 879 (same).
IS.
While the "possible temptation" standard "cannot be defined with precision,"
Murchison, 349 U.S. at 136; Caperton, 556 U.S. at 879, it applies here, where ChiefJustice Castille
7
was the District Attorney responsible for prosecuting Mr. Williams at trial and on direct appeal;
where Chief Justice Castille in a handwritten note personally authorizedhis Office to seek the death
penalty for Mr. Williams; where Chief Justice Castille's name appears as counsel for the
Conunonwealth on the direct appeal brief seeking affirmance ofMr. Williams' convictions and death
sentence; where the claims presented in this case include claims that the District Attorney's Office,
then headed by Chief Justice Castille, violated due process under Brady and related cases by
suppressing exculpatory information and presenting false and misleading information to the jury;
where Chief Justice Castille's name appears as counsel for the Conunonwealth on a letter that is part
the evidence litigated in the Court of Common Pleas in this case; where Chief Justice Castille's
campaign for judicial office highlighted his obtaining the death penalty in a number of capital cases,
including Mr. Williams' case; and where Chief Justice Castille appears to have expressed hostility
to undersigned counsel's office.
16.
Respondent respectfully submits that, considering "all the circumstances ofthis case,
due process requires recusal." Caperton, 556 U.S. at 872. Moreover, consideration of some of the
circumstances individually highlights why due process requires Chief Justice Castille's recusal.
17.
The Supreme Court's fmding of a due process violation in Murchison supports
Respondent's argnment that due process does not allow Chief Justice Castille's participation as a
judge in a case where he was the District Attorney who was responsible for Mr. Williams'
prosecution throughout trial and direct appeal, and personally authorized his Office to seek the death
penalty.
18.
In Murchison, the judge who presided at trial had conducted "'one man grand jury'
proceedings" that resulted in the defendant's indictment. 349 U.S. at 136. The Supreme Court held:
Having been a part of that process a judge cannot be, in the very nature of things,
wholly disinterested in the conviction or acquittal of those accused. While he would
not likely have all the zeal of a prosecutor, it can certainly not be said that he would
have none of that zeal. Fair trials are too important a part of our free society to let
8
prosecuting judges be trial judges of the charges they prefer.
Id. at 137. See also Republican Party of Minn. v. White, 536 U.S. 765,776 (2002) (describing
Murchison's holding that the 'Judge violated due process by sitting in the criminal trial of defendant
whom he had indicted").
19.
Here, should Chief Justice Castille participate, the due process violation will be even
more clear than it was in Murchison. While the Murchison judge returned the indictment while
acting as ajudge and, thus, did "not likely have all the zeal of a prosecutor," id. at 137, then-District
Attorney Castille was the prosecutor who personally authorized his Office to seek the death penalty
in Terrance Williams' case. Due process will thus be violated if Chief Justice Castille now assumes
the role' ofjudge. And the due process requirement for ChiefJustice Castille's recusal is even more
applicable because the issues in this case, as the Court of Common Pleas has found, involve the
violation of Mr. Williams' due process rights (by suppressing exculpatory information and
presenting misleading information to the jury) by the District Attorney's Office that Chief Justice
Castille headed at that time. If ever there was a case that "offer[s1 a possible temptation to the
average man as a judge ... not to hold the balance nice, clear and true between the State and the
accused," Caperton, 556 U.S. at 878, this is it.
20.
The above-described reports of Chief Justice Castille's judicial election campaign
further highlight why it would violate due process for Chief Justice Castille to sit injudgment here.
The Caperton decision made clear that judicial elections can create circwnstances under which due
process requires judicial recusal. Former United States Supreme Court Justice John Paul Stevens
has stated: "A campaign promise to 'be tough on crime,' or to 'enforce the death penalty,' is
evidence of bias that should disqualifY a candidate from sitting in criminal cases." John Paul
Stevens, Opening Assembly Address, A.B.A, Ann. Meeting, 12 ST. JOHN'S J. LEGAL COMMENT. 21,
30-31 (1996). See also Keith Swisher, Pro-Prosecution Judges: "Tough on Crime," Soft on Strategy,
9
Ripe for Disqualification. 52 Ariz. L. Rev. 317, 319 (2002) (under due process analysis required by
Caperton, "tough-on-crime elective judges should recuse themselves from all criminal cases"). But
such a sweeping rule is not necessary here. Chief Justice Castille's campaign was not just "toughon-crime" or pro-death penalty, it was based in part on his record as District Attorney of putting
people on death row, one ofwhom is Mr. Williams. Under these circumstances, at least, due process
counsels Chief Justice Castille's recusal.
21.
Chief Justice Castille's antagonistic attitude toward undersigned counsel's office, as
evidenced by statements in his opinions denying prior recusal motions, also supports this motion for
recusal on due process grounds. See, ~ Caperton, 556 U.S. at 881 (due process requires recusal
when judge "becomes 'embroiled in a running, bitter controversy"" with litigant (quoting Mayberry
v. Pennsvlvani11, 400U.S. 455, 465 (1971»); Commonwealthv. Doughertv, 18 A.3d 1095,1096 (pa.
2011) (Baer, J., concurring) (explaining that whenjudge "chastised an assistant district attorney who
requested her recusal ... , this Court determined that such remarks increased the appearance of
impropriety, and, indeed, necessitated the reversal of the judge's refusal to recuse" (citing
Commonwealth v. White, 910 A.2d 648 (pa. 2006»; id. at 1097 ("to attack counsel personally for
requesting recusal, when the law requires such motions to be put forth before the judge whose
actions are in question in the first instance, is obviously inappropriate"); Offutt v. United States, 348
U.S. 11, 17 n.3 (1954) (recusal required where judge criticized counsel as giving a "disgraceful and
disreputable performance on the part of a lawyer who is unworthy of being a member of the
profession; and I, as a member of the legal profession, blush that we should have such a specimen
in our midst"); Fairleyv. Andrews, 423 F.Supp.2d 800, 821 (N.D.ll!. 2006) (recusal required where
judge made comments that could have been interpreted as prejudgment of the case against
defendants, "especially in the wider context of the Court's negative interactions with Defendants'
counsel"); United States v. Meyerson, 677 F.Supp. 1309, 1315 (S.D.N. Y. 1988) Gudge recused self
10
because judge "resent[ed] unsupported assertions" and "tactics" of counsel); Marshall v. Georgia
Pac. Corp., 484 F.Supp. 629,631 (B.D. Ark. 1980) (recusal where reasonable observer "could
assume that the court would view [statements by counsel] with considerable displeasure").
22.
For all of the above-stated reasons, the Due Process Clause and the heightened due
process requirements of the Eighth Amendment make Chief Justice Castille's recusal appropriate
in this case.
II.
PENNSYLVANIA LAW REQUIRES CHIEF JUSTICE CASTILLE'S RECUSAL
23.
Pennsylvania's Code of Judicial Conduct requires recusal when a judge's
"impartiality might reasonably be questioned."
ML Canon 3(C)(I). See lllffi Joseph v. Scranton
Times, 987 A.2d 633, 634 (pa 2009) (per curiam) ("appearance of impropriety" requiring recusal
where "there are factors or circumstances that may reasonably question the jurist's impartiality in
the matter"; "There is no need to [rod actual prejudice, but rather, the appearance of prejUdice is
sufficient to warrant the grant of new proceedings. A trial judge should not only avoid impropriety
but must also avoid the appearance of impropriety."). For the reasons already stated, Chief Justice
Castille's "impartiality might reasonably be questioned" in this case; thus, recusal is required under
Pennsylvania law.
24.
Moreover, Pennsylvania's Code of Judicial Conduct specifically identifies the
following as an example of when a judge's "impartiality might reasonably be questioned" and, thus,
when his or her recusal is required - when the judge "served as a lawyer in the matter in
controversy." Id., Canon 3(C)(1)(b). In Co=onwealth ex reI. Allen v. Rundle, 189 A.2d261, 262
(pa 1963), the Court held that a judge who was the district attorney at the time the defendant was
indicted must recuse himself from defendant's post-conviction proceedings. The same is true for
Chief Justice Castille here, since he was the District Attorney throughout the trial and direct appeal
proceedings, and personally authorized seeking death. See also U ruted States v. Amerine, 411 F.2d
11
1130,1134 (6th Cir.1969) (applying similarlanguage from 28 U.S.C. § 455 (1964); recusal ofjudge
who was United States Attorney for the district in which defendant was tried at the time when
complaints were issued against defendant "is not a matter for the exercise of[the judge's1discretion
but is unconditional and absolute"); United States v. Vasilick, 160 F.2d 631, 632 (3d Cir. 1947)
(same for judge who was United States Attorney when indictment was returned against defendant).
25.
In Jones, Chief Justice Castille stated that he was exempted from Canon 3(C)(l)(b)
by the Commentary thereto: "A lawyer in a governmental agency does not necessarily have an
association wtth other lawyers employed by that agency within the meaning of this subsection."
Jones, 663 A.2d at 146 (quoting Commentary to Canon 3(C)(1)(b». But ChiefJustice Castille's role
as the Commonwealth's lawyer in this case did not arise through mere "association with other
lawyers" in the District Attorney's Office. Instead, as the District Attorney himself, he was charged
by law with representing the Commonwealth's interests in Mr. Williams' case. While one might
argue that one assistant district attorney "does not necessarily have an association with other"
assistant district attorneys in the same Office, it cannot reasonably be asserted that the District
Attorney does not "have an association" with the lawyers under his command. The District Attorney
is not merely a "lawyer in a governmental agency" - he is the head of that agency and the actions
of that agency are his responsibility as a matter oflaw. See 16 Pa.C.S. § 1420 ("the district attorney
may appoint such number of assistants, learned in the law, to assist him in the discharge of his
duties"); Commonwealth ex reI. Specterv. Bauer, 261 A.2d 573, 575 (pa. 1970) ("district attorneys
in this Commonweal th have the power - and the duty - to represent the Commonwealth's interests
in the enforcement of its criminal laws"); id. at 576 (district attorney is the "sole public official
charged with the legal responsibility of conducting in court all criminal and other prosecutions, in
the name of the Commonwealth" (internal quotation marks omitted»; Commonwealth v. Malloy,
450 A.2d 689, 691-92 (Pa.Super. 1982) ("the district attorney is charged with the responsibility for
12
the investigation and prosecution of any complaint which he approves"; "the district attorney's
function is to represent the Commonwealth in criminal prosecutions. In the capacity as the
Commonwealth's attorney, the district attorney has traditionally fulfilled the obligation of
investigation and prosecution of crime by initially evaluating complaints to determine whether a
charge should be brought against a suspect.
:~
'A District Attorney has a general and widely
recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth,
and to decide whether and when to prosecute, and whether and when to continue or discontinue a
case. ''').
m.
Tms CASE Is DIFFERENT FROM PRIOR CASES IN WmCH CIDEF JUSTICE CASTILLE
DENIED RECUSAL MOTIONS
26.
In prior cases where Chief Justice Castille denied recusal motions grounded in part
upon his former position as Philadelphia's District Attorney, Chief Justice Castille relied upon the
movant's inability to provide evidence that Chief Justice Castille was "personally involved" in the
movant's prosecution. See, !b&, Rainey. 912 A.2d at 757 ("To the best of my knowledge and
recollection, I was not personally involved in any pre-trial investigation of appellant [or] the charging
decisions that were made in his case .... [Counsel] has pointed to nothing in the record that
demonstrates otherwise."); Porter, 35 AJdat 33 (rejecting counsel's "repetitious complaint that my
former position as the elected District Attorney of Philadelphia County requires my recusal, even
though I had no actual involvement in appellant Porter's trial or direct appeal"); Beasley. 937 A.2d
at 3 81 ("[T] 0 the best ofmy knowledge and recollection, I was not personally involved .... [Counsel]
has pointed to nothing in the record that demonstrates otherwise.").
27.
In this case, there is specific evidence of Chief Justice Castille's direct, personal
involvement in this case - then-District Attorney Castille's handwritten notation personally
authorized his Office to seek death. Thus, if personal involvement is reqnired, it is established here.
28.
In any event, the question of "personal involvement" is not dispositive under the
13
objective standards that govern recusal matters. Even absent proof of "personal involvement,"
recusal wonld be required here, as a matter of Fourteenth Amendment Due Process and Eighth
Amendment law, and under Pennsylvania law, for all of the reasons stated herein.
IV.
IF CHIEF JUSTICE CASTILLE DECLINES TO RECUSE HIMSELF, THIS MAITER SHOULD BE
REFERRED TO THE FULL COURT
29.
In denying prior recusal motions in capital PCRA cases, Chief Justice Castille stated
that, "[u ]nder the existing practice ofthis Court, recusal has been a matter of individual discretion
or conscience and only the jurist being asked to recuse himself or herself may properly respond to
such a request," Jones, 663 A.2d at 143 (citing Commonwealth v. O'Shea, 567 A.2d 1023, 1034 (pa.
1989); In re Crawford's Estate, 160 A. 585, 587 (pa 1932», and denied requests that the recnsal
motion be referred to the full court, Porter, 35 A.3d at 34.
30.
Respondent Williams respectfully submits that this practice is inappropriate in light
of the objective standards for recusal mandated by the Due Process Clause,~, Caperton, 556 U.S.
at 872 ("there are objective standards that require recusal when 'the probability of actual bias on the
,-I
part of the judge or decisionmaker is too high to be constitutionally tolerable'" (quoting Withrow,
421 U.S. at 47), and Pennsylvania's Code ofJudicial Conduct, ~ Canon 3(C)(I) (recusalrequired
when "impartiality might reasonably be questioned").
31.
To be sure, it is appropriate for arecusalmotion tofirst be considered by the Justice
to whom itis directed, since only that Justice can know if there are subjective factors that require his
or her recusal. But that subjective inquiry is 'Just one step in the judicial process" of considering
a recusal motion - if a Justice makes the SUbjective deternllnation that he or she is not biased, the
recusal inquiry must proceed to the objective inquiry that is appropriate under Due Process, the
Eighth Amendment and Pennsylvania law. Caperton, 556 U.S. at 886 ("Justice Benjamin did
undertake an extensive search for actual bias. But, as we have indicated, that is just one step in the
judicial process; objective standards may also require recusal whether or not actual bias exists or can
14
be proved."). As the United States Supreme Court recently reiterated:
The judge's own inquiry into actual bias ... is not one that the law can easily
superintend or review, though actual bias, if disclosed, no doubt would be grounds
for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on
appellate review ofthe judge's determination respecting actual bias, the Due Process
Clause has been implemented by objective standards that do not require proof of
actual bias.
Caperton. 556 U.S. at 883.
32.
As to the objective recusal inquiry, the Justice whose recusal is sought is no better
able to decide, and arguably is less able, than the rest of the Court. Indeed, due process requires that
the full Court decide the due process-based recusal issue, just as the full Court would decide any
other Constitutional issue presented by a litigant.
33.
Accordingly, should Chief Justice Castille decide that he is not inclined to recuse
himself, the matter should be referred to the full Court for decision under the objective standards
mandated by Due Process, the Eighth Amendment and Pennsylvania law.
34.
At the very least, the Court should order full briefing and argument on this issue,
which courts have recognized to be one of great importance. See State v. Allen, 778 N.W.2d 863,
871-73, 880-83 (Wis. 2010) (plurality opinion) (calling for briefing and argument, in light of
Caperton, on question of whether due process requires full Court review of single Justice's recusal
decision); U.S. Fidelity Ins. v. Catastrophic Claims, 773 N.W.2d 243,246-47 & n.12 (Mich. 2009)
(opinion of Corrigan, J.) (same, noting that "former Michigan State Supreme Court Chief Justice
Clifford Taylor [has stated] that Caperton 'has to mean that the challenged justice can't make the
recusal decision alone"'); id. at 250 (calling for briefing and argument on question: "Does this
Court's historical recusal practice - which permits each justice to decide motions for his or her
recusal ." - comport with the Caperton Court's requirement for objective standards?"); Fieger v.
Gromek, 373 Fed. Appx. 567,572 (6th Cir. 2010) (holding that due process challenge to Michigan
Supreme Court's practice of single justice consideration of recusal motions was mooted by that
15
Court's adoption of the following "new disqualification rule": "In the Supreme Court, if a justice's
participation in a case is challenged by a written motion ... , the challenged justice shall decide the
issue and publish his or herreasons about whether to participate. Ifthe challenged justice denies the
motion for disqualification, a party may move for the motion to be decided by the entire Court. The
entire Court shall then decide the motion for disqualification de novo. The Court's decision shall
include the reasons for its grant or denial ofthe motion for disqualification. The Court shall issue
a written order containing a statement of reasons for its grant or denial of the motion for
disqualification. Any concurring or dissenting statements shall be in writing.").
CONCLUSION AND PRAYER FOR RELIEF
For the reasons stated, Respondent respectfully prays:
.
,~
1.
that Chief Justice Castille recuse himself;
2.
that, should Chief Justice Castille decline to recuse himself, this motion be referred
to the full Court for decision; and that the full Court direct Chief Justice Castille's recusal .
Respectfully submitted,
LEIGH M. SKIPPER
Chief Federal Defender
/Shawn Nolan
PA Bar No. 56535
Billy H. Nolas
PABarNo.83177
Assistant Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 545 West- The Curtis Center
Philadelphia, P A 19106
(215) 928-0520
Counsel for Terrance Williams
16