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Commonwealth of Pennsylvania v. Ernest Porter

January 19, 2012


Appellant's Motion for Recusal of Chief Justice Castille With Request for Referral to the Full Court


This capital appeal is from the denial of appellant's serial petition for relief under the Post Conviction Relief Act ("PCRA").*fn1 Following submission on the briefs and supplemental briefing addressing jurisdiction, at the direction of the Court, appellant Ernest Porter, through his counsel, Billy H. Nolas of the Philadelphia-based Federal Community Defender's Office ("FCDO"), has filed a 19-page Motion for my recusal from the appeal, along with a request to refer the Motion to the full Court.*fn2 For the reasons set forth below, I will deny the Motion and the referral request.

The relevant procedural history, including the record concerning the delay in this case, is set forth in the Court's Opinion, filed contemporaneously with this Recusal Opinion. The recusal request is primarily based upon my Concurring Opinion in Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), which was joined by Mr. Justice McCaffery. Attorney Nolas alleges that my discussion of the Porter record in the Spotz concurrence requires my recusal because I supposedly "expressly articulated an opinion about the merits" of Porter's appeal and "accused counsel of misconduct" in this case. Nolas does not seek the recusal of Justice McCaffery. The Commonwealth responds by noting that the recusal motion corroborates the administrative and institutional concerns addressed in my Spotz concurrence. Thus, the Commonwealth argues that each of the grounds for recusal lacks even a colorable basis, and that the Motion, which is significantly longer than appellant's principal brief, further confirms the FCDO's global strategy of delaying capital cases by forcing prosecutors and the Court to respond to "an endless series of frivolous claims."

Attorney Nolas first states that my recusal is required because my discussion of the Porter record in my Spotz concurrence included an "express prejudgment" of the merits of this appeal. Specifically, Nolas says that my concurrence stated my "belief" or "conclusion" that appellant's serial Brady*fn3 claim, the denial of which is the subject of Porter's appeal, was time-barred under the PCRA. Nolas's actual argument on this point is brief. Citing Canon 3A(6) of the Pennsylvania Code of Judicial Conduct and non-binding decisions from various federal Circuit Courts, Nolas argues that my recusal is required because I made a public comment expressing my opinion on the merits of a pending appeal. Motion, ¶ 40.

The Commonwealth responds that counsel's reliance on Canon 3A(6) is frivolous, since the Canon only discourages public comments concerning pending cases made outside a judge's official duties, such as comments to the media; the Canon does not address "public comments" in the guise of formal judicial opinions.*fn4 Respecting Attorney Nolas's accusation of "prejudgment," the Commonwealth notes that the concurrence in Spotz was issued long after this case had already been submitted to the Court for decision -- indeed, the Spotz concurrence was filed after this Court had directed further briefing in this appeal, a directive that obviously resulted from consideration and deliberation. Thus, the Commonwealth submits, any commentary by the Spotz concurrence concerning the record in this case, whether involving the merits or not, reflects judging, not pre-judging.

This recusal argument indeed is frivolous, and distressingly so. Even though the Commonwealth's points are well-taken,*fn5 the argument is frivolous for a more fundamental reason: Attorney Nolas blatantly misrepresents my concurrence in Spotz. Nolas declares, as if the assertion were self-proving, that I "expressly articulated an opinion about the merits of the appeal," further declaring that my "comments on Appellant's pending appeal were not directed toward peripheral matters, but went to central issues before the Court. Chief Justice Castille stated his belief that Appellant has asserted a 'time-barred Brady claim.'" Motion, 2 ¶ 6; 10 ¶ 39.

This is simply false. My concurrence in Spotz addressed the delay that Attorney Nolas has orchestrated in this state capital case, which is plainly demonstrated by the transcript (and has been corroborated by the pleadings on this Motion). I offered no view on the merits of this appeal, much less did I "expressly prejudge" those merits.

Nolas's argument to the contrary is revealingly non-contextual. My concurrence in Spotz quoted at length from the transcript of the PCRA hearing at which the trial court decided appellant Porter's Brady petition. I prefaced the quotation from the Porter transcript in Spotz by noting that the exchange occurred after the PCRA court had already announced its intention to dismiss the Brady petition. The portion of the Porter transcript I quoted then set forth the PCRA court's of-record ruling that the petition in this case was denied "on the grounds that it is not timely and does not meet the requirements for Brady material." Later in the quotation, after the PCRA court noted the next step in implementing its time-bar decision -- issuing a dismissal notice under Pa.R.Crim.P. 907 -- Nolas said he would object, and the court asked Nolas what he would suggest the court do instead. Nolas responded that he should be permitted to depose the Brady witness. At that point in the Spotz concurrence's quotation from the transcript in Porter, I inserted the following clarifying notation in brackets: "i.e., drag out the disposition of the time-barred Brady claim."

Remarkably, Attorney Nolas's recusal argument does not acknowledge this context. The bracketed reference in the Spotz concurrence to "the time-barred Brady claim," which appeared in a block quotation from the transcript in this case, was an explanatory factual reference to the status of the Brady claim, as already determined by the PCRA court and reflected in the very same quoted material. The bracketed reference also noted the effect of Nolas's argument, faced with a time-bar ruling; the argument, if accepted, would have caused further delay in a case, already delayed for years, to pursue a claim deemed time-barred. Notably, Nolas's request to depose the witness was not an answer or challenge to the court's time-bar ruling; it was, instead, a request that would induce delay despite the petition being deemed time-barred. My bracketed comment accurately characterized the excerpt I quoted.

Moreover, my discussion of the Porter transcript in Spotz did not remotely examine the "central" Brady merits issue, as counsel falsely claims. Rather, the discussion was exclusively in connection with my concern about FCDO-induced delay in Pennsylvania capital cases generally. My concurrence in Spotz noted that the FCDO's strategy of delay in cases such as Spotz and Porter was made relevant by the FCDO's global federal motion in yet another then-pending capital case, Commonwealth v. Dougherty, 585 CAP. That federal motion attacked this Court's handling of its entire capital docket, including this case, blamed the delays on this Court, and claimed that this Court was indifferent to, and incompetent to manage, its capital docket. (Notably, there has been no averment that the FCDO has corrected the scurrilous accusations in its federal motion in Dougherty or withdrawn that motion.) My final point about this case in Spotz was to accurately note that not once did Nolas "forward the [FCDO's] new-found concern with delay while ensuring delay in both judicial systems in Porter." 18 A.3d at 348.

I did not "pre-judge" the Brady merits of this case in Spotz by discussing the delay that Attorney Nolas has indisputably engineered here.*fn6 My comments in Spotz had nothing to do with Ernest Porter's cause; they had to do with the conduct of the FCDO in general, and of Nolas in particular, in causing the delay in this case. Moreover, it is beyond remarkable that Nolas forwards this recusal argument without acknowledging the FCDO's motion and accusations in Dougherty, the point actually being made in my Spotz concurrence, and the context of my bracketed factual explanation in that responsive opinion. Because Nolas's recusal argument in this case is premised upon an abject mischaracterization of my concurrence in Spotz, it is yet another example of the FCDO's determination to tie up Pennsylvania courts with frivolous pleadings.

Next, Attorney Nolas asserts that my recusal is required because my comments concerning his record actions in this and other cases express "animosity" toward him personally. Nolas also complains that he was not given an opportunity to be heard before I noted what the record plainly disclosed about his role in creating the delay in this case. Finally, Nolas argues that my remarks in Spotz concerning his role in causing the delay here were "unfounded."

The Commonwealth responds that there is nothing improper in a Justice of this Court describing the record of abusive tactics of the FCDO in Pennsylvania capital cases. Furthermore, the Commonwealth notes that if a strong condemnation of such abuses were enough to warrant recusal, then virtually the entire Court would have to recuse in FCDO cases, since a number of the FCDO's claims in Spotz were condemned by the Court's Opinion as frivolous, or even "frivolous in the extreme." The Commonwealth also stresses this Court's institutional role, both as the Court of last resort in Pennsylvania and the ultimate arbiter of attorney discipline. Given that role, the Commonwealth emphasizes that this Court can, and must, police attorney conduct and when its constituent Justices act in fulfillment of that duty, their actions cannot reasonably be construed as bearing "personal animosity" toward the attorney involved; instead, the Court is merely fulfilling its constitutional mandate. No reasonable observer, the Commonwealth argues, would believe that the Justices of this Court should be deemed incapable of fairly adjudicating cases involving lawyers whose record misconduct those Justices may have noted and even condemned.

Furthermore, there is no support in the law for the ludicrous assertion that an attorney be given an "opportunity to be heard" before a court may notice and comment in a published opinion as to what a case record plainly discloses about that attorney's relevant conduct. Of course, such a requirement would surely cause further delay in capital cases; but the Due Process Clause is not a Due Delay Clause. Moreover, the FCDO's own actions indicate that it does not subscribe to this novel theory posed by Nolas. My discussion in Spotz of examples of FCDO-induced delay in capital cases was occasioned in part by the motion filed in federal court by the FCDO in Dougherty, which attacked the competence of this Court to manage its capital docket, while failing to acknowledge the FCDO's central role in causing delay in many of the ...

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