Former Prosecutors Benched

With our country’s mass incarceration problem, it often feels like the deck must be stacked against criminal defendants, resulting in the outrageous cases we highlight here. When you consider how many judges are former prosecutors, who often rule on cases brought by their former colleagues from their former employers, you realize that the deck is indeed stacked.

For example, consider the case of Chief Justice Ronald Castille of the Pennsylvania Supreme Court. Before being elected Pennsylvania’s Chief Justice, Castille served as the elected District Attorney of Philadelphia. In that role, he made the final decision that prosecutors should seek the death penalty against 18-year-old Terrence Williams. Years later, however, a state court vacated his death sentence. The court found that the trial prosecutors had impermissibly hidden evidence that the murder victim had sexually abused Williams and other boys. Instead of disclosing that information, as required, the prosecutors manipulated evidence to fake a robbery motive and painted Williams as a vicious, cold-blooded killer. Because of the prosecutors’ deceptions, the court found that the death sentence should be lifted. Even though it was Castille’s decision to pursue the death penalty against Williams, and even though it was Castille’s colleagues who had hidden the pertinent evidence and presented the false evidence, Judge Castille refused to disqualify himself from the case when it reached the Pennsylvania Supreme Court. Instead, he led the court to reverse the lower court decision and reinstate the death sentence. How fair was that?

The law says that judges don’t need to disqualify themselves from cases just because their former office or colleagues are before them. Instead, judges only need to disqualify from a case when the probability of “actual bias” is “too high to be constitutionally tolerable.” That’s a vague standard, but whatever it means, it’s clear that it’s a pretty low bar. A Daily Kos editorial notes that if Lebron James decided that instead of playing for the Cleveland Cavaliers, he’d rather referee the team, everyone would cry foul. And yet, that is what we routinely let former prosecutors do as judges. The U.S. Supreme Court recently ruled that Justice Castille crossed the line in reinstating Williams’ death penalty, but only because of his personal involvement in that particular case. The Court’s decision was pretty limited and will do nothing to prevent the more general problem.

There is no tracking system that tells us how many former prosecutors sit on the bench nationally, but the numbers are definitely disproportionate. President Obama made it his mission to add more diversity to the bench. Yet, 43% of his federal trial court judge nominees were former prosecutors (while only 15% were public defenders). One third of state supreme court justices are former prosecutors (as compared with 15% having experience as public defenders). Half of the United States Supreme Court Justices are former prosecutors (and there hasn’t been a former public defender on the Supreme Court in 25 years, not since Thurgood Marshall). Whatever the statistics are nationwide, it is clear that there are an awful lot of sitting judges who are former prosecutors.

Former prosecutors on the bench don’t just create an actual (or appearance of) unfairness, they also often shift the balance against criminal defendants in other ways. In the higher courts, we see former prosecutors as judges interpret the law in ways that diminish the rights of criminal defendants. And in the trial courts as well as higher courts, former prosecutors tend to presume that the prosecutors are ethical and that they would never withhold evidence or abuse a suspect’s rights. Former prosecutors have gotten comfortable with the prevalent reality of cops “testilying” (offering false testimony in support of the “right” outcome). And these prosecutors-turned-judges are accustomed to seeking a high sentence rather than looking for mitigating circumstances. It is time to meaningfully diversify the bench. As Justice Castille’s ruling shows, this can literally be a life or death issue.


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