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June 8, 1995


Motion for Recusal from Consideration of Application for Extraordinary Relief.

Justice Castille. Mr. Justice Montemuro is sitting by designation.

The opinion of the court was delivered by: Castille



FILED: June 8, 1995

On May 26, 1995, James Jones ("Petitioner") filed a Motion for Recusal requesting that I recuse myself from participating in the consideration or decision of petitioner's petitions requesting that this Court exercise its King Bench Powers and grant a stay of his execution, which is scheduled for 10 p.m. on June 13, 1995, *fn1 pending resolution by the United States Supreme Court on his petition for writ of certiorari. *fn2 The basis for petitioner's request for recusal is that as District Attorney of Philadelphia County, Pennsylvania, my name appeared on a brief filed with this Court on May 14, 1990 urging affirmance of petitioner's conviction and death sentence. *fn3

Under the existing practice of this 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. Commonwealth v. O'Shea, 523 Pa. 384, 407, 567 A.2d 1023, 1034 (1989), cert. denied, 498 U.S. 881, 111 S. Ct. 225 (1990); In re Crawford's Estate, 307 Pa. 102, 108-09, 160 A. 585, 587 (1932). For the reasons set forth below, I have determined that my recusal in this matter is not warranted.

At the outset, it is important to note that during my tenure as District Attorney from January of 1986 through February of 1991, the Philadelphia District Attorney's office (consisting of approximately 225 attorneys and a total of 475 staff employees) each year disposed of over 65,000 criminal matters and several thousand appeals in both the Superior and Supreme Courts of Pennsylvania, as well as in the federal courts. Given this enormous volume of criminal cases processed in Philadelphia County, it was impossible for the duly-elected District Attorney to be personally familiar with the details of each and every criminal case prosecuted by his assistants and deputy district attorneys during his or her tenure.

I would also note that because of my duly-elected position as District Attorney, as a matter of formality, a stamp of my signature was required to be affixed to all indictments and complaints issued during my tenure. My name was also required to be listed on numerous appellate and amicus curiae briefs filed on behalf of the District Attorney's office. Petitioner should not construe this formal administrative step or requirement to suggest that I was, per se, personally and directly involved with the prosecution or appeal of his criminal case.

With respect to petitioner's matter presently before this Court, I was not District Attorney at the time petitioner was tried in 1981. As for petitioner's appeal to this Court in 1990, I am not aware of any materials indicating that I personally reviewed petitioner's criminal file or otherwise personally participated in the prosecution of petitioner's matter as an advisor, or as a trial or appellate attorney. Indeed, to the best of my knowledge and recollection, I have no factual information about petitioner's underlying criminal case other than the knowledge and information contained in the petitions and briefs that I have reviewed through my duties as a Justice of this Court. I have not preJudged petitioner's matter nor would I preJudge it simply because I served as a District Attorney and had a general responsibility for all matters that fell within my official capacity, this being one of the many. Given the absence of personal involvement with petitioner's matter while I served as District Attorney, and upon review of the relevant case law, I see no reason to recuse myself in this matter.

In Laird v. Tatum, 409 U.S. 824, 34 L. Ed. 2d 50, 93 S. Ct. 7 (1972), then Justice William Rehnquist, and now Chief Justice, was asked to disqualify himself in a matter that appeared before the United States Supreme Court because as an Assistant Attorney General in the Department of Justice he had publicly commented on the subject matter then pending before the Court in Laird v. Tatum (the statutory and constitutional law regarding the authority of the executive branch to gather information), and also because he had previously testified as an expert witness on behalf of the Justice Department in Senate hearings inquiring into the very same subject. The respondents in Laird claimed that Justice Rehnquist's impartiality was "clearly questionable" because of his expert testimony in the Senate hearings, because of his intimate knowledge of the subject matter underlying the allegations before the Court, and because of his public statements about issues related to the pending matter prior to his appointment to the Court. 409 U.S. at 825.

Rejecting respondents' arguments, Justice Rehnquist held that even though he held a high-level supervisory position in the Department of Justice while Laird was being investigated and prosecuted within the Department of Justice, his disqualification was not warranted since he did not have an advisory role in any matters involving Laird v. Tatum, had never signed a pleading or brief regarding the case, and had never personally participated in the courts on behalf of the Government with respect to the Laird v. Tatum case. In support of his position, Justice Rehnquist cited as precedent Schneiderman v. United States, 320 U.S. 118, 87 L. Ed. 1796, 63 S. Ct. 1333, reh'g denied, 320 U.S. 807, 88 L. Ed. 488, 64 S. Ct. 24 (1943), a matter in which United States Supreme Court Justice Murphy did not disqualify himself even though the matter then before the Court had been prosecuted by the Department of Justice while Justice Murphy was the Attorney General of the United States.

Similarly, in Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983), this Court held that recusal was not required of a trial Judge even though the trial Judge formerly, as District Attorney, had personally prosecuted the appellant on charges unrelated to the matter presently before him, had taken a statement of a primary witness in the case before him about the appellant while he was District Attorney, and had been the District Attorney when the offenses in question were committed by the appellant. Appellant argued that the Judge should have recused himself because of his prosecutorial role and prior contact with the Appellant. This Court, however, rejected appellant's argument:

We have never held and are unwilling to adopt a per se rule that a Judge who had participated in the prosecution of a defendant may never preside as Judge in future unrelated cases involving that defendant. Absent some showing of prejudgment or bias we will not assume a trial court would not be able to ...

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