Response in Opposition to the Commonwealth's Motion to Vacate

IN THE SUPREME COURT OF PENNSYLVANIACOMMONWEALTH OF PENNSYLVANIA,Petitioner, No. 163 EM 2012v.TERRANCE WILLIAMS,Respondent.TERRANCE WILLIAMS' RESPONSE IN OPPOSITION TOTHE COMMONWEALTH'S MOTION TO VACATE STAY OF EXECUTIONThe Commonwealth's motion should be denied.!INTRODUCTIONThe Honorable M. Teresa Sarmina, Judge of the Philadelphia Court of Common Pleas, foundthat Mr. Williams' death sentence is unconstitutional and vacated that death sentence. JudgeSarmina found that the trial prosecutor in this capital case suppressed evidence, played "fast andloose" with the truth, "had no problem disregarding her ethical obligations," and "took unfairmeasures to win," NT 9/28/12 at 37,3945, in violation of Mr. Williams' due process rights. JudgeSarmina found that Mr. Williams timely presented this due process violation under the Post-Conviction Relief Act, 42 Pa.C.S. § 9545(b)(1 )(i) & (ii), (2), because the Commonwealth continuedits 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 govemmentofficials"; Mr. Williams (under section (1 )(ii)) exercised due diligence but could not haveascertained the evidence concerning the Commonwealth's suppression before these proceedings; and! All emphasis herein is supplied, unless otherwise indicated.

and vacated a death sentence. Should the Commonwealth elect to properly appeal Judge Sannina'sorder vacating the death sentence, an appeal it has not taken, the Court should review theCommonwealth's appeal under its normal rules, with briefing by the parties, an opinion by thePCRA 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 Sanninafound 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 andcapital sentencing, from earlier PCRA proceedings, and from federal court proceedings. JudgeSannina spent many hours reviewing the parties' written submissions, memoranda, pleadings,motions and amendments in the instant matter. Judge Sannina conducted an extensive in camerareview of documents created by the police and prosecutor. Judge Sannina held several oralarguments regarding jurisdiction, timeliness, the merits of the constitutional issues, and theappropriateness 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 reviewednumerous exhibits. Judge Sannina heard lengthy closing arguments on timeliness, jurisdiction andthe merits.Judge Sannina expressly followed this Court's precedent in cases such asCommonwealth 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, andwhat factual issues a PCRA court should address in cases such as this. Judge Sannina also heededthe established precedent of the United States Supreme Court for cases of prose cut oria 1 misconductand governmental suppression of facts.Based upon her review of this massive record, live3

testimony, the parties' written submissions, the oral arguments, and the relevant law, Judge Sarminamade findings of jurisdiction, timeliness and constitutional violations by the Commonwealth.This Court carmot possibly provide meaningful appellate review ofJudge Sarmina' s findingsof 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 therecord on appeal."Commonwealth v. Williams, 715 A.2d 1101, 1103 (pa. 1998) (citingCommonwealth 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 (internalquotation 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, thePCRA 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' amendmentsand supplements, prosecutorial misconduct, the merits, and the stay of execution);The Transcripts of Evidentiary Hearing (9/20112, 9/24112, 9/25/12) (including thepresentation of testimonial and documentary evidence, and oral arguments from the partieson, 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, interalia, jurisdiction, timeliness, governmental interference, diligence, Mr. Williams' proffersand pleadings, the propriety of an evidentiary hearing to address the procedural andsubstantive issues in this case, and the stay of execution);The PCRA Court Evidentiary Hearing Exhibits (introduced during the proceedings in theCourt of Common Pleas), including: P-l (Memo re Death Penalty Authorization forNorwood case); P-2 (Draper Statement-Norwood case); P-3 (Draper Statement-Hamiltoncase); P-4 (discovery letter to defense counsel in Norwood case (11115/84)); P-5 (entry fromprosecutor Foulkes' notes); P-6 (same); P-7 (same); P-8 (same); P-9 (same); P-I0 (Statement4

of Ronald Rucker (7/19/84)); P-ll (entry from prosecutor Foulkes' notes); P-12 (excerptfrom prosecutor Foulkes prior PCRA hearing testimony); P-13 (Statement ofBemard Collinsin Hamilton case); P-14 (Draper Agreement); P-15 (prosecutor Foulkes' letter to PardonsBoard); 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 JohnS. 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 DailyComplaint Summaries); P-25 (Polygraph Examination and related documents for MarcDraper (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)); P-29 (Police Statement (Reverend Charles L. Poindexter)); COURT-I (entry from prosecutorFoulkes' 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 ofCommon Pleas: Amendment and Supplement to Petition for Post-Conviction Relief (withleave of Court, granted on September 25,2012) (9128/12); Notice of Filing (Affidavits ofJennifer Givens and Eric Montroy) (9128/12); Memorandum of Decisions Supporting ReliefUnder Napue v. Illinois and Alcorta v. Texas (9127/12); Motion to Conform the Petition tothe 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 ofMarc 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 PABoard of Probation & Parole on behalf of Marc Draper (9/4/12); Notice of Filing, Affidavitof 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 inSupport 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).3Moreover, 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 ofthe prior court record of this case, and which were considered by Judge Sarmina, including, inter3The Commonwealth, which did not prevail in the Court of Common Pleas, has not evenprovided 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 thanit is in a capital case." Kyles v. Whitley, 514 U.S. 419, 422 (1995). Judge Sarmina performed thecareful review required by the United States Constitution. This Court should do no less. The onlyway for this Court to fairly resolve this case is through the normal course of appellate review, shouldthe Commonwealth elect to take a proper appeal. This Court should deny the Commonwealth'smotion to vacate the stay of execution.SCOPE AND STANDARD OF REVIEWNowhere in its submission to this Court does the Commonwealth describe this Court'sstandard of review. Judge Sarmina reviewed an extensive documentary record, held several oralarguments, heard two days of live testimony, and made credibility findings. This Court's lawrequires that Judge Sarmina's findings receive "great deference";The findings of a post-conviction court, which hears evidence and passes on thecredibility of witnesses, should be given great deference. We will not disturb thefindings of the PCRA court if they are supported by the record, even where the recordcould support a contrary holding .... This Court's scope of review is limited to thefindings of the PCRA court and the evidence on the record of the PCRA court'shearing, viewed in the light most favorable to the prevailing party.Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006) (citations omitted). Accord Commonwealthv. 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 nojustification for an appellate court, relying solely upon a cold record, to review the fact-finder'sfirst-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 of6

witnesses and the weight to be given to their testimony by reason of their character, intelligence, andknowledge of the subject can best be determined by the judge before whom they appear .... [Thehearing judge ] alone had the opportunity to see and hear the witnesses in this case, and therefore hadthe better opportunity to pass upon their demeanor and character. These are qualities which cannotbe 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 wouldrequire 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 anevidentiary hearing, which was well within her discretion, see Commonwealth v. Dennis, 950 A,2d945,979 (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 withrespect 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 andevidentiary 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'sone year limitations provision, "he must still prove that it meets the requirements therein .... Suchquestions require further fact-finding and the PCRA court, acting as fact finder, should determinewhether [the petitioner] met the "proof' requirement").The Commonwealth's cavalier attitude toward the PCRA Judge's findings and discretion is7

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 HomicideJudge since 2003, and has presided in over 100 homicide trials. This Court has affirmed four firstdegreemurder convictions, three of them resulting in death sentences, where Judge Sarmina presidedat 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 PCRAcases is extensive as well. Before she assumed the Bench, Judge Sarmina was an Assistant DistrictAttorney in the Philadelphia District Attorney's Office, and was an Assistant Attorney General inthe Office of Pennsylvania's Attorney General. Needless to say, Judge Sarmina is one of the mostrespected Court of Common Pleas Judges in the Commonwealth.discretion.Judge Sarmina's rulings are supported by the record. Judge Sarmina did not abuse herTHE PCRA COURT HAD JURISDICTIONThe Commonwealth baldly contends that Mr. Williams "did not plead any valid exceptionto the timeliness requirement." Application at 15. To the contrary, Mr. Williams both pled andproved 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), whichprovides 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 thepetition alleges and the petitioner proves that:8

(i) the failure to raise the claim previously was the result of interference bygovernment officials with the presentation of the claim in violation of theConstitution or laws of this Commonwealth or the Constitution or laws of theUnited States;(ii) the facts upon which the claim is predicated were unknown to thepetitioner and could not have been ascertained by the exercise of duediligence;* * *(2) Any petition invoking an exception provided in paragraph (1) shall be filed within60 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 inthe exercise of due diligence, and (3) the claim was filed within sixty days of the date it could havebeen presented. If the petitioner's allegations make aprimajacie showing of timeliness, the PCRAcourt 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 bringhis claim within the ambit" of a statutory exception, "the PCRA court, acting as fact fmder, shoulddetermine whether [the petitioner] met the 'proof requirement").Here, Mr. Williams proffered that the Commonwealth suppressed evidence concerning theCommonwealth's key witness, Marc Draper; that this evidence was unknown to the defense despiteattempts by the defense to uncover it; and that Mr. Draper had revealed the evidence less than sixtydays before the filing of the Petition. See Petition at 21-22. The Petition quoted Mr. Draper'sJanuary 9, 2012 Declaration, in which he unequivocally stated, "Before now, I would not have talkedabout 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 hisproffers as to timeliness. Mr. Williams again asserted that the prosecution failed to disclose the fact9

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 detectivesthreatened to prosecute him in the unsolved Donna Friedman homicide if he did not mold hisaccount 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 itspossession about the sexual activities of the decedent with teenage boys. Id. at 9. Given thesefailures to disclose, Mr. Williams asserted that he had made aprimajacie showing of timelinessunder 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 ofthe Petition and the new disclosures from Mr. Draper themselves established aprimajacie showingunder 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 theburden is on you. There is no assumption there is jurisdiction ....• • •[There must also be] a strong showing of likelihood of success on the merits. Astrong showing, that means what you submit of likelihood of success on the meritsand it doesn't say we're gonna find that out after the evidentiary hearing. This is sothat you even get the evidentiary hearing.rd. at 86-87. Judge Sarmina ordered the defense to make any additional submission by September13. rd. at 101-02.On September 13, 2012, the defense proffered an additional Affidavit from Mr. Draper, inwhich he swore that he told both the investigating officers and Ms. Foulkes that the case was not10

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 furtherswore that he would not have talked to anyone working on behalf of Mr. Williams prior to January2012, when he signed his fust declaration. rd., ~ 9. Mr. Draper then swore to each of hisdeclarations and they were notarized.In a Supplemental Notice of Filing, also filed on September 13, the defense submitted thatMr. Draper's affidavits made aprimafacie showing of timeliness:First, under subsection (b)(1 )(i), the affidavit( s) establish "interference bygovernment officials" (M., inter alia, 9/11112 affidavit at paragraph 8-"they did notwant me to say the case involved a relationship. They wanted me to say it was onlya robbery. Ms. Foulkes made it clear with me that I had to stick to the story that thiscase was only about a robbery. r followed what they told me and stuck to it over theyears.") 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 theCommonwealth's suppression of that evidence and presentation of a slanted versionto the jury, is properly before this Court, (M., inter alia, 9111/12 affidavit atparagraph 9 ("I would not talk to Terry's lawyers before [January 9,2012] .. .1 wouldnot talk. .. ")). As Petitioner has pled a claim that falls within section 9545(b), theCourt 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, "asfactfinder," must determine at a hearing whether the "proof requirement" is met. rd.,930 A.2d 1264, 1270-71 (Pa. 2007).Supplemental Notice of Filing, at 1-2.Judge Sarminaheard additional oral argument on September 14, 2012, at which Mr. Williamsargued that his pleadings and proffers made a prima facie showing of timeliness, requiring that anevidentiary hearing be held. See,~, NT 9/14/12,5-6. At the conclusion of September 14, 2012proceedings, based on Mr. Williams' allegations and proffers, Judge Sarmina found that he had madea sufficient prima facie showing of timeliness under section 9545(b)(1 )-(2) to require that anevidentiary 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 thatit was error for Judge Sarmina to hold a hearing. Application at 2. This case, however, is fardifferent from Fahy, where this Court found that the evidence Mr. Fahy relied on was publicknowledge years before his petition was filed. Id. at 317. Here, Judge Sarmina found a prima facieshowing of timeliness, based on Mr. Williams' allegations of facts known only to Mr. Draper andthe Commonwealth, facts withheld from the defense - that Mr. Draper had told the prosecutingauthorities the true motivation for the homicide, but those authorities coerced and coached him totestifY differently and conceal the truth for years. The threat of prosecution ofMr. Draper for anotherhomicide (the still unsolved Donna Friedman case) was the reason he would not disclose what heknew until Mr. Williams was on the eve of execution. And as detailed below, Judge Sarmina foundtimeliness proved based in part on disclosures during the hearing of additional evidence from thefiles of the prosecutor and the police, evidence which the Commonwealth stipulated had neverbefore been available to the defense. NT 9/25/12 at 42-43. Unlike Fahy. the facts relied on herewere not public knowledge.During the hearing, additional evidence supporting timeliness was uncovered, includingpreviously 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 andto Supplement and Amend the petition, which included an amendment and supplement, in which heasserted that the testimony ofMr. Draper and Ms. Foulkes, together with exhibits introduced at thehearing, 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 andcapital 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 September28,2012, Mr. Williams filed an additional amendment-his Amendment and Supplement to Petitionfor Post-Conviction Relief (with leave of Court, granted on September 25, 2012). In the Amendmentand 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 possibilityof release from prison in ten years if he assisted the Commonwealth; and was coached to testifYfalsely 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 andmisleading. 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 crucialdocuments were withheld from the defense; that Marc Draper was coerced andcoached; that the prosecutor and police manipulated the facts about the offense andMr. Draper's motive for testifYing; and that none of this could have been ascertainedby the defense prior to these proceedings, much of it being revealed for the first timein the hearing itself. This is a case of governmental interference. The claims havebeen brought within 60 days of when they could have been presented. And while duediligence was exercised, no amonnt of due diligence would have disclosed what hascome to light in this hearing.Amendment and Supplement, ~ 33.Accordingly, contrary to the bald assertions of the Commonwealth, Mr. Williams pled andproffered in great detail the basis for a conclusion that the Petition was timely. Following thehearing, 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 presentationof 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, 360U.S. 264 (1959).Judge Sarmina found, inter alia, the following with respect to Government interference:By removing direct and indirect information which demonstrated that AmosNorwood had homosexual relationships with teenage boys from the statements thatwere turned over to the defense, the government interfered with the presentation ofthis claim.... The only way that petitioner could have demonstrated a Brady claimbased upon the fact that there was information in the District Attorney's file and thePhiladelphia 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 andsupported by the record. The evidence that witnesses presented by the Commonwealth at trial knewthat Mr. Norwood was an ephebophile was concealed by the Commonwealth in its police andprosecutorial files and not disclosed until the PCRA proceedings conducted within the last twoweeks. These circumstances establish governmental interference with the presentation of this claim.See Commonwealth v. Lambert, 888 A,2d 848, 852 (Pa. 2005) (finding "facts set forth in the policefile" were not known to petitioner and therefore claim was timely under newly discovered evidenceexception).In addition, the evidence presented below establishes that Marc Draper told Philadelphiapolice 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 was14

motivated by that "relationship," and that at the time ofthe homicide Mr. Williams "snapped" andacted crazy. NT 9/20112 pm at 169, 179-80, 190, 197-98. Mr. Draper further testified thatthe policethreatened and coerced him to change his story, and coached him to testifY that the motive for themurder 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 toprosecute 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 governmentalinterference, are the reason why Mr. Draper would not reveal the truth until now. As became crystalclear when Mr. Draper was questioned by Judge Sarmina, the threat stayed with him "forever." NT9/20/12 pm at 208.The facts that Mr. Draper told the prosecuting authorities the truth, but that they did notdisclose his statements or the other evidence of ephebophilia, and instead coerced Mr. Draper to givefalse testimony, establish violations of Brady and Napue. See,~, Brady, 373 U.S. at 87 (dueprocess 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 thatfalse testimony could have affected the judgment of the jury); see also Alcorta v. State of Texas, 355U.S. 28, 31-32 (1957) (due process violated where the state created a false impression about thecircumstances and motive in the crime).As noted, the Commonwealth continued to interfere with Mr. Williams' ability to raise theseclaims. Mr. Draper remained intimidated by the threat of prosecution in the Donna Friedman caseuntil he finally disclosed the truth to current counsel earlier this year. NT 9/20/12 pm at211-12; NT9/24/12 pm at 20-21. Moreover, the Commonwealth was under a continuing duty to disclose its15

knowledge ofMr. Draper's statements concerning the motive for the Norwood homicide, and of itsknowledge of witness statements that Mr. Norwood was an ephebophile, particularly when Mr.Williams made allegations concerning those matters in the original PCRA and federal habeasproceedings, and then even more pointed allegations based on the declarations of Mr. Draper andReverend 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 hearingconducted in the Court of Common Pleas. There is no reasonable question about governmentalinterference in this case. Judge Sarmina's findings should not be reversed.2. The evidence was withheld from the defenseThe "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 thefacts - 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, asJudge Sarmina found, on the facts - unknown to Mr. Williams - that various witnesses had disclosedto the Commonwealth evidence that Mr. Norwood was an ephebophile. NT 9/28/12, 16-17. It isalso predicated on the facts - unknown to Mr. Williams - that Mr. Draper knew and communicatedto 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 testimony4 The Commonwealth has a continuing obligation under Brady to disclose exculpatoryevidence, even after a conviction. See,~, Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) ("theduty to disclose is ongoing"); Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976) ("[AJfter aconviction the prosecutor ... is bound by the ethics of his office to inform the appropriate authorityof 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 andtestimony. NT 9/28/12, 17-19.All of those facts were known only to Mr. Draper, who was unwilling to communicate in partbecause he had been threatened with prosecution, including the potential for a death sentence, in theDonna Friedman homicide case, see NT 9/20/12 pm at 211-12; NT 9/24/12 pm at 20-21; NT9/28/12, 18-19 (finding Mr. Draper's testimony credible), and to the prosecuting authorities, whodid not disclose them. See NT 9/20/12 pm at 120-23; CW Ex. 2 at 2 (testimony concerning note inMs. 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 twowitnesses, Mamie Norwood and Reverend Charles Poindexter, removing information that eitherdirectly 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 advanceson a teenage member of his church, and that there were other possible instances of sexualimpropriety." NT 9/28/12, 23.Accordingly, because "the facts set forth in the police filer s 1 were not otherwise known toappellant, 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 Courtprecedent, Cone v. Bell, 556 U.S. 449 (2009), as Judge Sarrnina found. Cone was convicted of "twocounts of first-degree murder, two counts of murder in the perpetration of a burglary, three counts17

of assault with intent to murder, and one count of robbery by deadly force," based upon a crime spreein which he robbed ajewelry store and a drug store, shot a police officer and a bystander, attemptedto hijack a car and shoot the driver, attempted to shoot a police helicopter, attempted to forcibly enteran elderly woman's house at gunpoint, and broke into the home of an elderly couple, "beat thecouple 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" - "Conehad committed one or more prior felonies involving the use or threat of violence"; "the murders hadbeen committed for the purpose of avoiding, interfering with, or preventing Cone's lawful arrest orprosecution"; "the murders were especially heinous, atrocious, or cruel in that they involved tortureand 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 todisclose information suggesting that "drug use played a mitigating, though not exculpating, role inthe crimes [Cone] committed." Cone, 556 U.S. at 475. Mr. Cone knew he was high on drugs, justas Mr. Williams knew of his own relationship with Mr. Norwood. The Brady violation in Cone layin the non-disclosure of information from witnesses other than Cone himself, just as Brady wasviolated here by the Commonwealth's non-disclosure of the evidence concerning Mr. Norwood'ssexual activities with other teenage boys and relationship with Mr. Williams. See also Brady, 373U.S. at 84 (finding that government violated due process by failing to disclose evidence that Brady'sco-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 theCommonwealth of its duty under the Due Process Clause. Instead of providing critical evidence to18

the defense, the Commonwealth suppressed it and has argued (for years) that Mr. Williams' claimsof sexual abuse are self-serving and slanderous, just like the government argued against thedefendant's claims of drug use in Cone. The Commonwealth's current assertion, that Mr. Williamsshould have uncovered what the Commonwealth hid, asks this Court to sanction a procedure bywhich the "prosecutor may hide, [and] defendant must seek"; such a procedure "is not tenable in asystem constitutionally bound to accord defendants due process." Banks v. Dretke, 540 U.S. 668,696 (2004).3. DiligenceThe Commonwealth has not made any express argument with respect to due diligence. JudgeSarmina found that Mr. Williams exercised due diligence:Petitioner established that the claim could not have been raised earlier withthe 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 allegedthat he made a statement about petitioner's motive for the crime, which was neverdisclosed 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 havecome 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'sstatements, 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 furthercounsel in favor of a finding of diligence. The prosecution's conduct here is similar to that of theprosecution in Banks v. Dretke, 540 U.S. 668 (2004). There, the Supreme Court found that thepetitioner 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'sanalysis like a glove:19

As a prosecution witness ... , [Draper] repeatedly misrepresented his dealings withpolice; each time [Draper] responded untruthfully, the prosecution allowed histestimony to stand uncorrected .... It has long been established that the prosecution'sdeliberate deception of a court and jurors by the presentation of known false evidenceis incompatible with rudimentary demands of justice.... [It] was ... appropriate for[Williams] to assume that his prosecutors would not stoop to improper litigationconduct 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 insimilar circumstances in Douglas v. Workman, 560 F.3d 1135 (10th Cir. 2009). In Douglas, the keyprosecution witness falsely denied having received any kind of deal in exchange for his testimonyimplicating Douglas and a co-defendant. The witness later recanted, and Douglas filed a new habeasclaim based on the witness' affidavit. The Tenth Circuit found as follows:In light of the district court's conclusion that [the prosecutor] was an activeparticipant 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. Douglascould have uncovered the illicit dealings between [the prosecutor] and Smith priorto Smith's recantation. Therefore, we conclude Mr. Douglas, exercising duediligence, 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. Williamsthrough its improper conduct. Judge Sarmina correctly found that Mr. Williams exercised duediligence in uncovering these Brady claims.Other than its jurisdictional assertion, the Commonwealth emphatically but quite erroneouslyasserts that" This exact same claim was raised years ago .... " Application at 2 (bold and italics inoriginal). Though not clearly spelled out, this appears to be an assertion that the claims at issue werepreviously litigated. 42 Pa. C.S. § 9544(a). Judge Sarmina correctly found that the claims were not20

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 somesexual component to his relationship with Norwood," because "there was no contemporaneousevidence," 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 thehomosexual "relationship" between Mr. Williams and Mr. Norwood, and additional evidenceconfirming Mr. Norwood's preference for teenage boys like Mr. Williams. The Commonwealthnever disclosed that evidence and/alsely asserted it did not exist. In these circumstances, it is quiteironic that the Commonwealth would assert "previous litigation" as a defense.MATERIAL EVIDENCE WAS SUPPRESSED BY THE COMMONWEALTH,RENDERING TERRANCE WILLIAMS' DEATH SENTENCEUNCONSTITUTIONALLY UNRELIABLEJudge Sarmina correctly concluded that Mr. Williams is entitled to relief under Brady v.Marvland and its progeny because the Commonwealth suppressed exculpatory and materialevidence. The Commonwealth did not dispute that the evidence uncovered in these proceedings hadnever been turned over to the defense. Relying on the testimony of trial prosecutor Foulkes andCommonwealth trial witness Draper, as well as on the contents of the District Attorney and policefiles, Judge Sarmina found that "evidence has plainly been suppressed." NT 9/28/2012 at 36. JudgeSarmina went on to find:Id. at 36-37.Furthermore, the evidence borne out over the course of the evidentiary hearing aboutformer 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 thesuppression was closer to wilful than to inadvertent.22

Judge Sarmina appropriately found thatthe Commonwealth's suppression of evidence in thiscase was material under Brady v. Maryland, 373 U.S. 83 (1963).She also found that thegovernment's suppression of evidence "resulted in painting an incomplete and misleading picturefor defense counsel." NT 9/28112 at 28. Simply put, the Commonwealth knowingly created a falseimpression for the jury on facts material to the capital sentencing determination. While this requiresrelief under the more defendant-friendly standard ofNapue v. Illinois, 360 U.S. 264 (1959), JudgeSarmina assessed the claims under the higher prejudice standard for Brady cases and determined thatMr. Williams was entitled to relief even under the Brady materiality standard. 5Judge Sarmina's finding of materiality under Brady is amply supported by the facts and lawapplicable to this case. The Commonwealth suppressed evidence of the victim's "homosexualephebophilia," as well as evidence regarding the true motive and circumstances of the offense in thiscase. 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 materialat capital sentencing, requiring relief on a death sentence, aside from the question whether it ismaterial at the guilt/innocence phase of trial. This concept is clear from Brady itself, which held thatgovernmental suppression of evidence violated due process "where the evidence is material eitherto guilt or to punishment," Brady, 373 U.S. at 87, and affirmed the ruling of the lower court that the5Especially in light of Judge Sarmina's materiality finding under Brady, there can be no doubtthat Mr. Williams established, under Napue, 360 U.S. at 271, that there is any reasonable likelihoodthat the false testimony and impressions created by the Commonwealth (about the true motive andcircumstances of the offense) could have affected the judgment of the jury. See also Alcorta v. Stateof Texas, 355 U.S. 28, 31-32 (1957) (due process violated where the state created a false impressionabout the circumstances and motive in the crime).23

evidence suppressed in the Brady prosecution was material as to capital sentencing, albeit not as toguilt. Id. at 90. In two more recent decisions, the United States Supreme Court has similarlyreiterated that suppressed evidence could be material as to punishment. See Banks, 540 U.S. at 699-703 (suppression of evidence concerning important prosecution witness material as to capitalsentencing); Cone, 556 U.S. at 469-76 (suppression of evidence regarding the seriousness ofdefendant'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 wasmaterial at the sentencing phase. NT 9/28/12 at 45-46. An examination of the record makes clearthat this finding should be affirmed by this Court.First, the Commonwealth suppressed evidence from its witness, Reverend CharlesPoindexter. During Rev. Poindexter's initial interview with police, he told detectives "that aboutfive years prior to the interview there had been a complaint from the mother ofa 17-year old boy atchurch who said that the victim propositioned him for sex." NT 9/28/12 at 24-25. However, theversion of this interview that was turned over to the defense "omitted those portions of ReverendPoindexter's statement entirely." Id. at 25. Additionally, Reverend Poindexter testified at trial thatMr. 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 hadmade sexual advances on a teenage member of his church, and that there were other possibleinstances of sexual impropriety." Id. at 23. Indeed, in Ms. Foulkes' own handwriting in her24

Norwood files Ms. Foulkes stated, "Mrs. House, son in play - Ronald - 16 years - touched onprivates. I don't do that - nobody would have to know." PCRA Hearing Exhibit C-2 at 2; NT9/20/12 pm at 120-21. The notes continued, "heard from others about possible incidents." PCRAHearing Exhibit C-2 at 2; NT 9/20/12 pm at 120-21. During Ms. Foulkes' testimony, the courtasked, "[ d]oes this refresh your recollection at all? It's a Ms. House and her son Ronald who is 16years old. He had been in a play and was touched on his privates and then it has some notation, Ithink in your handwriting, 'Heard from others about possible incidents.'" NT 9/20112 pm at 120; seealso NT 9/20112 pm at 122-23 ("Son in play, Ronald, touches on privates, I don't do that, nobodywould have to know, brought boy home and asked him not to say anything, and then he stoppedcoming 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 thisinformation was provided to the defense. NT 9/28/12 at 26. To the contrary, Ms. Foulkes slantedher 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 familiarhad 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 motivein this case, as well as the Commonwealth's threats to Mr. Draper. Never-before disclosed evidenceestablishes that the Commonwealth coerced Mr. Draper. Mr. Draper, who was found a truthfulwitness by Judge Sarmina, testified that he was threatened with prosecution for the Donna Friedmanmurder ifhe did not testifY that the offense was only a robbery. He was coached, and because of thethreat he altered his testimony in the way the Commonwealth wanted. The Commonwealth misled25

the jury about the crime and about the reasons for the testimony of its key witness. 6Mr. Draper testified at trial, as police and prosecutor Foulkes wanted, that the only motivein 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. Foulkesherself, 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 reasonwhy 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 taperecordedstatement?6It should also be noted that at trial Marc Draper told the jury the only thing he received forhis testimony was a second-degree murder conviction with a mandatory life sentence, and no otherpromises or benefits. See NT 9/20/12 am at 161-62. When trial counsel inquired as to whether anyother promises were made to Mr. Draper or his family in exchange for his testimony, Mr. Draperresponded, "No. Nothing at all." See NT 9/20/12 am at 166. Mr. Draper testified at the evidentiaryhearing that he was actually promised that he would be helped with parole, and the letter fromprosecutor Foulkes to the Board supports his testimony.Mr. Draper's hearing testimony is corroborated by a letter trial prosecutor Andrea Foulkeswrote on Mr. Draper's behalf to the Board of Probation and Parole on June 23, 1988, whichexpressly states that the Board should "consider the cooperation of this inmate when determininghis eligibility for parole or commutation at some future date," and that her letter to the Board wasa "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 thefact 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'shearing testimony was found in Ms. Foulkes' file, which includes her handwritten notes about herdiscussions with Mr. Draper stating, inter alia, "Deal- 1 0 years," and "[ a]llow you to plead guiltyto murder, second degree, about ten years." NT 9/20112 pm at 138. Ms. Foulkes' attempts toexplain these entries away as anything but what they obviously are were not credible. Thisinformation 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 sexualrelationship between Mr. Norwood and Mr. Williams, but instead threatened Mr. Draper to assertthat it was only a robbery. rd. at 177-78. The evidence from the Homicide files about thepolygraphing ofMr. Draper, who was cold and hungry at the time, as well as the evidence about thechronology of Mr. Draper's arrest and questioning, support Mr. Draper's account. See PCRAHearing 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 pmat 178. Mr. Draper agreed to give a false account, as he was told, of Mr. Norwood's killing becausehe was scared that he would be prosecuted for the Donna Friedman murder. rd. at 188. So he shadedhis account and told Sergeant Rosenstein, and later Ms. Foulkes, what they wanted to hear - that itwas 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 - therelationship between Mr. Williams and Mr. Norwood - Mr. Draper also informed other detectivesand Ms. Foulkes that the reason Mr. Williams killed Mr. Norwood involved a sexual relationshipbetween the two of them. NT 9/20112 pm at 190,197-198. Mr. Draper testified that none of themwere 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 testimonyat Mr. Williams' preliminary hearing and trial that Mr. Williams' sole motive was a robbery. rd. at27

185. Mr. Draper testified that Ms. Foulkes was not truthful when she testified she did not haveinformation 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 forher conclusion. NT 9/28112 at 18, 19. Judge Sarmina found prosecutor Foulkes' testimony to benot credible in several respects. rd. at 39-45. Judge Sarmina found, inter alia, Ms. Foulkes "attimes, 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 noproblem disregarding her ethnical obligations." rd. at 39-45.Fifth, Judge Sarmina found that prosecutor Foulkes suppressed exculpatory evidence fromMamie Norwood, the decedent's widow. Here again the Commonwealth "remov[ed] informationthat 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 policeabout a time in which she awoke at 2 A.M. to find a young, slim male standingsilently in the hallway of her home. Mrs. Norwood explained to police that herhusband woke her to ask her for money. She then watched as her husband loadedsome stereo equipment into his car, and then he got in and drove off with the youngman. Mrs. Norwood said that her husband returned home around 9 to 10:00 the nextmorning and told her a, quote, 'rambling' story about being abducted, but how hewas 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 HearingExhibit C-3; NT 9/20/12 pm at 142-143.28

There was additional undisclosed evidence of Mr. Norwood's homosexual ephebophilia, aswell as similar information regarding Herbert Hamilton, the decedent in the prior conviction usedas an aggravator against Mr. Williams at the penalty phase. Also, there are numerous undisclosedstatements from witnesses in the Hamilton case attesting to the sexually exploitive and physicallyaggressive behavior of Hamilton. Bernard Collins, an eighteen year-old, was interviewed by policein relation to the Hamilton murder. He informed police that Mr. Hamilton forced boys to have sexat 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 housewhere 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 andhe said that he would get his baseball bat and hit me with it ...." Id. During the hearing, Ms. Foulkeswas asked whether she was aware of this information when she made her closing argument in theNorwood trial (which included her characterization ofMr. Hamilton as an innocent older man). NT9/20/12 am at 153-54. Judge Sarmina then engaged in the following exchange:THE COURT:THE WITNESS:From everything that you reviewed about Hamilton in that trial, allthe evidence that was collected from his room, etc., was your ultimateview that he was an innocent guy? I'm not saying he deserved to bekilled; I'm saying that he was an innocent guy?Well, he was certainly leading a deviant lifestyle, but there - theevidence in that case, other than Mr. Collins, was that his relationswith men as a homosexual were consensual. It was a deviantlifestyle, no question.29

NT 9/20112 am at 154-55. 7Judge Sannina explained that "the items I have cited as to comments regardinghomosexuality 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. Thereare 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 jurythat 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 andfor 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. Sheclaimed that Mr. Williams "had no reason to commit these crimes" other than greed and malice. NT2/3/86 at 1877.Judge Sannina found that Mr. Williams demonstrated Brady materiality where theCommonwealth 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 thatprejudice ensued than Ms. Foulkes' own admission. As someone who had the privilege of viewingthe suppressed evidence in the government's possession collectively," she "stated of course she feltlike there was a homosexual relationship between petitioner and Norwood because she was able to7Ms. Foulkes subsequently agreed with Mr. Williams' counsel that "a teenager would nothave 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, wouldhave been able to connect them, and, at the very least, stand up in closing in responseto Ms. Foulkes' penalty phase statement that there was no other reason and argue thatthere is enough evidence to suggest that Amos Norwood was a homosexualephebophile who was taking advantage of petitioner. The existence of anunsympathetic victim can be, in and of itself, sufficient to undermine one'sconfidence that the jury would have returned the same verdict of death.NT 9/28/12 at 47. And,Id. at 23-24.[w]ithout this evidence, petitioner's counsel was given a skewed and incompletepicture of the victim, which effectively ties his hands while the prosecution elicitedtestimony at trial about his kind and caring character. If disclosed, the cumulativeimpact of this impeachment evidence would have enabled petitioner's counsel tochallenge the government's sympathetic portrayal of the victim. Ultimately, thenondisclosure of that evidence undermines confidence in the jury's death sentence.In this context, the Commonwealth's claim that it is excused from its Brady obligationsbecause of Mr. Williams' testimony at trial fails. Brady due process analysis requires courts todetermine 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 counselwould 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 thedefense" could have pursued if the 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 developed31

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 becausedefense counsel could have used suppressed evidence to "effectively attack[] the Commonwealth'scase").Effective defense counsel, armed with this suppressed information, would not have calledMr. Williams as a witness. B Instead, reasonable counsel would use the suppressed evidence to negatea 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 notaccept the Commonwealth's first-degree murder charge, but instead found Mr. Williams guilty ofthird-degree murder after it heard evidence that Mr. Hamilton was involved in homosexual acts withteens, i.e., the same kind of evidence prosecutor Foulkes suppressed as to decedent Norwood in thecapital case.b. The materiality analysis under Bradv is not undermined by the defense that waspresented at trial, but insteadfocuses on the Commonwealth's duty to disclose."When police or prosecutors conceal significant exculpatory or impeaching material in theState'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 dueprocess." Id. at 696 (citations and quotation omitted).Here, the prosecution withheld evidence which would have fundamentally informed andaltered the defense strategy. The Commonwealth cannot now argue that Mr. Williams should notBMr. Williams' trial counsel actually met with him for the first time the day before voir direbegan. Brady instructs the Court to consider how reasonable counsel would have used the evidence.32

e afforded relief as to the penalty phase because he chose a defense at trial in reliance on theCommonwealth's "sanitized" version of the case. Instead, courts must analyze how the suppressedmaterial 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 materialeither to guilt or to punishment." Brady. 373 U.S. at 87. The United States Supreme Court, inBanks 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 capitalsentencing); Cone, 556 U.S. at 473 ("As in Brady, the distinction between the materiality of thesuppressed evidence with respect to guilt and punishment is significant in this case. ").Banks is particularly instructive. In Banks the prosecution withheld evidence concerning twowitnesses - that one was a paid informant, and that the other "had been intensively coached byprosecutors and law enforcement officials." Banks, 540 U.S. at 675. Finding the suppressedevidence was material, the court stated:At least as to the penalty phase, in sum, one can hardly be confident that Banksreceived a fair trial given the jury's ignorance ofFarr's true role in the investigationand trial of this case .... Accordingly, as to the suppression of Farr's informantstatus 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 falselytestifY that the only motivation for the murder was robbery. (And more than in Banks, Mr. Draper33

was actually threatened with prosecution for the Donna Friedman homicide in an effort to mold hisaccount.) 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 thetruth was otherwise.Prosecutor Foulkes relied on Mrs. Norwood's and Reverend Poindexter's sanitized testimonyabout 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 hima ride home," that Mr. Williams had "taken two ... innocent lives," and that Mr. Williams "had noreason to commit these crimes." NT 1873, 1876-1877. When prosecutor Foulkes gave this false andmisleading statement to the jury, Mr. Williams' testimony had already been rejected by the jury. Thecalculus 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 inthis offense would have put the penalty phase case "in such a different light as to nndermineconfidence in the verdict." Banks, 540 U.S. at 698.The Commonwealth asserts repeatedly that because Mr. Williams was aware of his abuse atthe hands of Mr. Hamilton and Mr. Norwood there was no duty on the part of the Commonwealthto turn over evidence of that abuse. The Commonwealth's argument is plainly erroneous for severalreasons.The notion that any time a criminal defendant knows a particular piece of information, theCommonwealth 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 witnessstatement that places the defendant in a different city at the time ofthe crime because the defendant34

himself would necessarily know that he was out of town at the time of the crime.TheCommonwealth 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 washigh on drugs, something that Cone knew); Brady, 373 U.S. at 84 (govermnent violated due processby failing to disclose evidence that Brady's co-defendant was the actual killer, a fact that was knownto Brady).Furthermore, the claims in this case are not predicated exclusively on facts that were withinthe knowledge ofMr. Williams. Instead, as Judge Sarmina found, they are predicated on the factthat various witnesses had disclosed to the Commonwealth evidence that Mr. Norwood was anephebophile. NT 9/28/12, 16. They also are predicated on the facts - unknown to Mr. WilliamsthatMr. Draper had communicated the actual reasons for the crime to the Commonwealth, but hadbeen coached not to discuss it; and that thereafter the Commonwealth knowingly presented falsetestimony 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 possibilityof a death sentence in the Donna Friedman homicide case, NT 9/20/12 pm at 211-12; NT 9/24/12pm at 20-21, and to the prosecuting authorities, who did not disclose them. See NT 9/20/12 pm at120-23; PCRA Hearing Exhibit C-2 at 2 (testimony concerning note in Ms. Foulkes' handwritingabout allegation of sexual abuse on part ofMr. Norwood); PCRA Hearing Exhibit P-24 (undisclosedstatement by Rev. Poindexter about allegations of sexual abuse on part of Mr. Norwood). Based onthat 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 orindirectly 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 ateenage 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 andMamie Norwood, both of whom painted a benign, loving, caring and starkly inaccurate portrait ofMr. Norwood. See NT 9/28/12, 35-36 ("Had the evidence detailed above been disclosed, it couldhave been used by a reasonable defense ~ttomey to impeach the testimony of both Mamie Norwoodand Reverend Charles Poindexter, in which they characterize Mr. Norwood as a kind churchvolunteer who wanted to help out the kids ofthe neighborhood").Mr. Williams' knowledge that he was sexually abused by Mr. Norwood did not relieve theCommonwealth of its duty under the Due Process Clause. The Commonwealth's suppression ofevidence is particularly egregious given that it has argued for years that Mr. Williams' claims ofsexual abuse are self-serving and defamatory.Judge Sarmina correctly found that theCommonwealth violated due process.JUDGE SARMINA PROPERLY STAYED MR. WILLIAMS' EXECUTIONGiven her findings and ruling on jurisdiction, timeliness, and the merits, Judge Sarminaproperly exercised her discretion under this Court's precedent to grant a stay of execution. As JudgeSarmina stated on September 28,2012:The Court finds that the petitioner is entitled to a stay of execution under Section9545(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 onthe merits with respect to the penalty phase.Under section 9545( c), petitioner needed to demonstrate that he met all therequirements of this subchapter.Both Morris I and Morris II make it explicitly clear that the above languageincorporated the jurisdictional provision of Section 9545(b) into the analysis ofgranting a stay of execution.For this Court to have jurisdiction, that is, the power or authority to reach the meritsof his claims, petitioner must have established that his claims fall under at least oneof 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 wasthe result of interference by government officials with the presentation of the claimin violation of the Constitution or laws of this Cornmonwealth, or the Constitutionor laws of the United States;And, ii, that the facts upon which the claim is predicated were unknown to thepetitioner and could not have been ascertained by the exercise of due diligence.This Court has jurisdiction in this case, given that petitioner demonstratedgovernmental 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 filedwithin 60 days ofthe date that it first could have been presented pursuant to Section9545(b )(2).Petitioner has proved that failure to raise the claim previously was the result ofinterference by government officials with the presentation of the claim in violationof 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 theiropposition to his execution. The case has garnered extensive attention, with all three majorPennsylvania newspapers weighing in against the execution. Moreover, several organizations havebeen joined by hundreds of thousands of Pennsylvania, national and international voices opposedto Mr. Williams' execution.The Decedent's Spouse: The views of the decedent's spouse in this case are relevant toanalysis of the public interest. Mamie Norwood, the decedent's wife, does not wish to see TerryWilliams 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 PennsylvaniaBoard of Pardons requesting that Mr. Williams' life be spared and that his sentence be commutedto life without the possibility of parole.The Jurors: The views of original jurors in this case are relevant to an analysis of the publicinterest. Jurors from Mr. Williams' trial and capital sentencing have provided sworn statementsindicating that they would not have sentenced Mr. Williams to die had they known the informationthat 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. 9The General Assembly: In December 2011, the General Assembly passed Senate Resolution6, "Directing the Joint State Government Commission to establish a bipartisan task force and anadvisory committee to conduct a study of capital punishment in this Commonwealth and to report9See also www.cnn.com/video/#/video/crime/2012/09/24/carroll-pa-clemency-case.cnn ("Ifeel betrayed ... we weren't given everything we needed to know").38

their findings and recommendations.,,10On September 13,2012, members of the bipartisan Pennsylvania Task Force and AdvisoryCommittee on Capital Pnnishment called on Governor Tom Corbett to postpone all upcomingexecutions until it completes its study of the death penalty and issues its findings in December 2013.Two of the four task force members, Senators Stewart Greenleaf(R) and Daylin Leach (D), and adozen members of the advisory committee signed the letter to the Governor. As they wrote, "[We 1do believe that carrying out an execution before our work is completed over the next fifteen monthswould greatly undermine the legislative intent of Senate Resolution 6 - a comprehensive study ofthe 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 Pennsylvanianews periodicals and a leading national publication have weighed in against his execution. SeePhiladelphia Inquirer, Editorial, "Justice Doesn't Require Death," Aug. 15, 2012; PhiladelphiaInquirer, 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; PittsburghPost-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 TerranceWilliams," Sept. 27, 2012; Philadelphia Inquirer, Editorial, "Time to call off Terrance Williams'10 Available 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 abusevictims 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 GovernorCorbett, The Board of Pardons and District Attorney Seth Williams to grant clemency;!! ThePennsylvania Coalition Against Rape; Murder Victims' Families for Human Rights; Berks Womenin Crisis; HAVIN; Survivors, Inc.; National Alliance to End Sexual Violence; National Associationof Social Workers, Pennsylvania Chapter; Pennsylvania Coalition Against Domestic Violence;National Center on Domestic and Sexual Violence; National Clearinghouse for the Defense ofBattered Women; Charles J. Chaput, O.F.M. Cap., Archbishop of Philadelphia; Catholic Bishopsof Pennsylvania; Sisters of Divine Providence in Pittsburgh; Council on American-Islamic Relations;The Enough Project; Arkansas Coalition Against Sexual Assault; California Coalition AgainstSexual Assault; Colorado Coalition Against Sexual Assault; Sexual Assault Network of Delaware;Iowa Coalition Against Sexual Assault; Maryland Coalition Against Sexual Assault; MichiganCoalition 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 SexualAssault; Vermont Network Against Domestic and Sexual Violence; West Virginia Foundation forRape 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; HA VIN;!!http://www.change.org!petitions/governor-tom-corbett-pa-board-of-pardons-district-attorney-seth-williams-grant-clemency-to-terrance-williams-survivor-of-child-sexual-abuse40

Sexual Assault Resource and Counseling Center; Wise Options; The European Union; The Councilof Europe.The Pennsylvania Board o/Pardons: On September 17, 2012, a three member majority ofthe Pennsylvania Board of Pardons voted to grant clemency to Mr. Williams. Notably, the membersof the Board who voted in favor of clemency were the three who are most familiar with victims ofsexual abuse and victims generally - Attorney General Linda Kelly, the Victim's Representative, andthe Board's mental health expert. However, under current Pennsylvania law a unanimous Boardrecommendation for clemency is necessary to reach the Governor's desk.On September 18, 2012, a request for reconsideration of Mr. Williams' application forclemency was filed with the Board of Pardons on the basis of material misrepresentations by theDistrict Attorney's Office at the clemency hearing. On September 27, 2012, the Board reconvenedand 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 theprosecution's response, the Board of Pardons unanimously voted to hold Mr. Williams' applicationfor clemency under advisement.Thus, the two members of the Board who previously had voted against clemency agreed thatMr. Williams had presented new evidence that was significant enough to warrant reconsiderationand further deliberation. Under these circumstances, surely the public interest counsels that the stayof execution not be lifted.RECUSAL OF CHIEF JUSTICE CASTILLERespondent respectfully submits that Chief Justice Castille should recuse himself and, ifChief Justice Castille declines to do so, Respondent respectfully requests that the full Court review41

the recusal issue. There are valid grounds making recusal appropriate under the Eighth andFourteenth Amendments to the United States Constitution, and under Pennsylvania law, as statedin the appended and separately filed motion for recusal. These grounds include that Chief JusticeCastille personally authorized his Office to seek the death penalty in this case. The factual predicateand legal analysis supporting recusal are stated in the appended motion for recusal.42

CONCLUSIONThe Commonwealth's motion to vacate the stay of execution entered by the Honorable M.Teresa Sarmina should be denied.Respectfully submitted,LEIGH M. SKIPPERChief Federal DefenderBY:~~IBilly H. NolasPABarNo.83177Shawn NolanPA Bar No. 56535Assistant DefendersFederal Community Defender Officefor the Eastern District of PennsylvaniaSuite 545 West - The Curtis CenterPhiladelphia, P A 19106(215) 928-0520Counsel for Terrance Williams43

CERTIFICATE OF SERVICEI hereby certifY that on this date I caused a copy of the foregoing to be served upon thefollowing person at the location and in the manner indicated below, which services satisfies therequirements ofPa.R.App.P. 121:VIA HAND DELIVERYHugh Burns, Esq.Office ofthe District Attorney3 Penn Square SouthPhiladelphia, P A 19107Dated: October 1,2012Philadelphia, P ABilly Nolas

ATTACHMENT A

History:Com. v. Terrance WilliamsHugh.Sums to: patricia.johnsonCc: Billy-NolasThis message has been forwarded.09/28/201203:45 PM2 attachmentsWilliams, Terrance - SUP - PFR capital stay ord V2.pdfWiliiams T Order and Opinion 9 28 12.pdfMS. Johnson -- As explained when I called -- here is a pdf of the documentwe are filing in hard copy right about now, as well as of the PCRA court'sattached 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 PENNSYLVANIACOMMONWEALTH OF PENNSYLVANIA,Petitioner, No. 163 EM 2012v.TERRANCE WILLIAMS,Respondent.RESPONDENT'S MOTION TO RECUSE CHIEF JUSTICE CASTILLERespondent Terrance Williams, through counsel, respectfully moves for recusal of ChiefJustice Ronald D. Castille from the instant proceedings. In support of this motion, Mr. Williamsstates as follows: 11. ChiefJustice Castille was the District Attomeyfor Philadelphia from January 1, 1986until March 12, 1991.2. Chief Justice Castille personally authorized his Office to seek the death penalty inthis 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. CastillePCRA Evidentiary Hearing Exhibit P-1, Memorandum to Mark Gottlieb, Chief, Homicide Unit, page2 (dated 1121/86) (appended as exhibit A); see also NT 9/20/12 (am.) at 11 (trial prosecutor AndreaFoulkes identifies ChiefJustice Castille's signature on this document as authorizing the approval toproceed on the death penalty).tAll emphasis herein is supplied unless otherwise indicated.

3. Chief Justice Castille was the District Attorney throughout the trial, capitalsentencing, post-trial, and direct appeal proceedings in this case.4. On direct appeal in Mr. Williams' case, the Philadelphia District Attorney's Officefiled 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 listedcounsel for the Commonwealth on the cover and signature page of the Brief (appended as exhibitB).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 behalfof Marc Draper, a key Commonwealth witness at Mr. Williams' trial. See PCRA EvidentiaryHearing Exhibit P-15 (appended as exhibit C). The letter asks the Board to "consider [Mr. Draper's 1cooperation ... when determining his eligibility for parole or commutation," and notes that thisrecommendation from the prosecutor was a "benefit or promise conveyed to" Mr. Draper inexchange for his testimony against Mr. Williams. Id. at 2. The trial prosecutor testified at the recentPCRA hearing that this promise to the Commonwealth's witness was not disclosed to the defenseat trial. In her PCRA ruling, Court of Common Pleas Judge Sarrnina cited this undisclosedinducement, 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 problemdisregarding 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 officialletterhead 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 the2

Pennsylvania Supreme Court. His election campaign stressed his record as Philadelphia's DistrictAttorney and, in particular, emphasized then-District Attorney Castille's pursuit of capitalpunishment and that, as District Attorney, he "put 45 people on death row," one of whom is TerranceWilliams, Respondent on the pending Commonwealth motion to vacate the stay of execution.Examples include:* "Castille had campaigned as the law-and-order candidate, amng televisioncommercials portraying [his opponent] as being soft on crime." Lisa Brennan,"Republicans Win Court Seats,"LEGALlNTELLIGENCER(NoV. 4, 1993) (available onWestlaw, 11/4/1993 TLI 1);• "Castille, a former Philadelphia district attorney, had campaigned as theself-proclaimed law-and-order candidate, airing television commercials portrayinghis Democratic opponent as soft on crime." Associated Press, "Castille Wins TopCourt Seat," ALLENTOWN MORNJNG CALL (Nov. 3, 1993) (available on Westlaw,1993 WLNR 1864290);• "Castille ... campaigned as the tough-as-nails scourge of criminals .... Castille'scareer as Philadelphia's district attorney, where he built a reputation as alaw-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 convictionsand saying [his opponent] was soft on crime .... 'My campaign was basically that I'vespent 20 years in law enforcement as a prosecutor, and the citizens want somebodywho'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 qualifieshim, why voters should support him, he starts with his experience in Vietnam, worksup to his record as Philadelphia district attorney and caps his pitch by declaring thathe 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 fora law-and-order guy - Ron Castille. He put 45 murderers on death row and has beenendorsed by the over 36,000 professional police officers in Pennsylvania '"Katharine Seelye, "Castille Emphasizes Law-and-Order Image," PHILADELPHIA3

INQUIRER (Oct. 21, 1993) (available on WestIaw, 1993 WLNR 1992136);*****"Castille· ... hopes a law-and-order message, coupled with name recognition insoutheastern Pennsylvania, will help him win .... 'When I start talking about courtreform, people's eyes glaze over,' he said. 'When I tell them about (my) sendingcriminals to death row or how I fought the Mafia in Philadelphia, then they'reinterested. ", Frank Reeves, "Castille Preaches Law-and-Order Message to Voters,PITTSBURGHPOsT-GAZEITE (Oct. 18,1993) (available on Westlaw, 1993 WLNR2134084);"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 wearsthe statistic as a badge. And he is running for the high court as if it were exclusivelythe 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." TimReeves, "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, aformer 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 ofmore than 36,000 police officers in the state." "Nigro, Castille Begin TVCampaign," LEGAL INTELLIGENCER (Oct. 14, 1993) (available on Westlaw,1011411993 TLI 3); Katharine Seelye, "Judicial Candidates Begin Courting the TVAudience," PHILADELPHIA INQUIRER (Oct. 12, 1993) (available on Westlaw, 1993WLNR 1991534) (same);"Some candidates ... skated perilously close to saying how they might be expectedto rule on issues that could come before them as judge. Take, for example, SupremeCourt Justice-elect Ron Castille - who, while pursuing ajob requiring him to heardeath-penalty appeals, bragged that he sent 45 people to death row when he was aprosecutor." Lynn Marks & Ellen Kaplan, "Disorder in the Courts," PITTSBURGHPOST-GAZEITE (Nov. 14, 1993) (available on Westlaw, 1993 WLNR 2150772);Candidates "Castille, Nigro and Surrickare aware that special interest groups capableof 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 recusethemselves 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 standon the death penalty. I can certainly say I sent 45 people to death row as DistrictAttorney of Philadelphia. They sari of get the hint. ", Lisa Brennan, "State VotersMust 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 PennsylvaniaSupreme Court in January 1994.8. Since Chief Justice Castille assumed the Bench, undersigned counsel's office hassought Chief Justice Castille's recusal from several Philadelphia capital PCRA appeals, arguing thatrecusal was appropriate because ofChiefJustice Castille's role as Philadelphia's District Attorneyduring 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.); Commonwealthv. Jones, 663 A.2d 142 (pa. 1995) (recusal opinion ofCastiIle, J.); Commonwealth v. Williams, 732A.2d 1167, 1174 (Pa. 1999).9. Chief Justice Castille's most recent opinions denying recusal motions based in parton his earlier role as District Attorney suggest and/or expressly state that undersigned counsel'soffice is acting in bad faith by seeking ChiefJustice Castille's recusal. See, U, Rainey. 912 A.2dat 759 (accusing counsel of "reckless disregard" and writing "scurrilously''); id. at 760 (stating thatcounsel'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 'useno falsehood.' ... In addition, the Rules of Professional Conduct prohibit lawyers from knowinglymaking a false statement of material fact or law to a tribunal ...."); id. at 761 ("1 certainly hope thatthe Chief Defender did not personally review and approve as a 'policy' matter the falsehoods thatare 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 dutiesas a lawyer and officer of this Court"); id. at 761 ("reckless nature of [counsel's] baseless5

allegation"); Beasley. 937 A.2d at 381 (accusing counsel of "false statements,""mischaracterizations" and "ethical lapses"); id. at 382 (asserting that counsel made "scandalousmisrepresentations in Rainey"); id. at 382 (asserting that counsel's actions in Rainey were "unethicalrepresentation"); 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 poorreputation"); Porter, 35 A.3d at 33 (rejecting counsel's "repetitious complaint that my formerposition as the elected District Attorney of Philadelphia County requires my recusal" for reasonsstated in "multiple prior opinions" (citing Beasley)); id. at 34 (asserting that counsel's requests forChief Justice Castille's recusal reflect counsel's "perverse worldview"); id. at 34 (suggesting thatcounsel's recusal motions violate "professional ethical obligations").ARGUMENT10. Chief Justice Castille's recusal from this matter is appropriate under Pennsylvanialaw, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, andthe Eighth Amendment to the United States Constitution.11. Moreover, should Chief Justice Castille decline to recuse himself, the Due ProcessClause and the Eighth Amendment require that the recusal issue be considered and decided by thefull Court.I. DUE PROCESS AND THE EIGHTH AMENDMENT REQUIRE CHIEF JUSTICE CASTILLE'SRECUSAL12. "The Due Process Clause entitles a person to an impartial and disinterested tribunalin both civil and crinrinal cases." Marshall v. Jerrico. Inc., 446 U.S. 238, 242 (1980); accord In reMurchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of dueprocess."). 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, soimportantto a popular government, that justice has been done." Marshall, 446 U.S. at 24 2 (citation6

and internal quotation marks omitted). And this due process requirement takes on even greatersignificance in a capital case, because of the Eighth Amendment's heightened due processrequirements. E.g., Lockett v. Ohio, 438 U.S. 586, 604 (1978); Woodson v. North Carolina, 428U.S. 280, 305 (1976).13. A fair, "impartial and disinterested tribunal," as required by the Eighth and FourteenthAmendments, requires not just "an absence of actual bias" - there must not be "even the probabilityof unfairness," and '''justice must satisfy the appearance of justice. '" In re Murchison, 349 U.S. at136 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954». As the United States Supreme Courtmost recently stated in Caperton v. Massey Coal Co., 556 U.S. 868 (2009): "Under our precedentsthere are objective standards that require recusal when 'the probability of actual bias on the part ofthe judge or decisionmakeris too high to be constitutionally tolerable. '" Id. at 872 (quoting Withrowv. 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 aprivate one, simply underscore the need for objective rules, Otherwise there may beno adequate protection against a judge who simply misreads or misapprehends thereal 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, ifdisclosed, no doubt would be grounds for appropriate relief. In lieu of exclusivereliance on that personal inquiry, or on appellate review of the judge's determinationrespecting actnal bias, the Due Process Clause has been implemented by objectivestandards 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 possibletemptation to the average man as a judge ... not to hold the balance nice, clear and true between theState 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 Castille7

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 deathpenalty for Mr. Williams; where Chief Justice Castille's name appears as counsel for theConunonwealth on the direct appeal brief seeking affirmance of Mr. Williams' convictions and deathsentence; 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 bysuppressing 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 partthe evidence litigated in the Court of Common Pleas in this case; where Chief Justice Castille'scampaign 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 hostilityto undersigned counsel's office.16. Respondent respectfully submits that, considering "all the circumstances of this case,due process requires recusal." Caperton, 556 U.S. at 872. Moreover, consideration of some of thecircumstances individually highlights why due process requires Chief Justice Castille's recusal.17. The Supreme Court's fmding of a due process violation in Murchison supportsRespondent's argnment that due process does not allow Chief Justice Castille's participation as ajudge 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 deathpenalty.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 wouldnot likely have all the zeal of a prosecutor, it can certainly not be said that he wouldhave none of that zeal. Fair trials are too important a part of our free society to let8

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) (describingMurchison's holding that the 'Judge violated due process by sitting in the criminal trial of defendantwhom he had indicted").19. Here, should Chief Justice Castille participate, the due process violation will be evenmore clear than it was in Murchison. While the Murchison judge returned the indictment whileacting as ajudge and, thus, did "not likely have all the zeal of a prosecutor," id. at 137, then-DistrictAttorney Castille was the prosecutor who personally authorized his Office to seek the death penaltyin Terrance Williams' case. Due process will thus be violated if Chief Justice Castille now assumesthe role' of judge. And the due process requirement for ChiefJustice Castille's recusal is even moreapplicable because the issues in this case, as the Court of Common Pleas has found, involve theviolation of Mr. Williams' due process rights (by suppressing exculpatory information andpresenting misleading information to the jury) by the District Attorney's Office that Chief JusticeCastille headed at that time. If ever there was a case that "offer[ s 1 a possible temptation to theaverage man as a judge ... not to hold the balance nice, clear and true between the State and theaccused," Caperton, 556 U.S. at 878, this is it.20. The above-described reports of Chief Justice Castille's judicial election campaignfurther 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 dueprocess requires judicial recusal. Former United States Supreme Court Justice John Paul Stevenshas stated: "A campaign promise to 'be tough on crime,' or to 'enforce the death penalty,' isevidence of bias that should disqualifY a candidate from sitting in criminal cases." John PaulStevens, 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 byCaperton, "tough-on-crime elective judges should recuse themselves from all criminal cases"). Butsuch 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 puttingpeople on death row, one of whom is Mr. Williams. Under these circumstances, at least, due processcounsels Chief Justice Castille's recusal.21. Chief Justice Castille's antagonistic attitude toward undersigned counsel's office, asevidenced by statements in his opinions denying prior recusal motions, also supports this motion forrecusal on due process grounds. See, ~ Caperton, 556 U.S. at 881 (due process requires recusalwhen judge "becomes 'embroiled in a running, bitter controversy"" with litigant (quoting Mayberryv. 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 whorequested her recusal ..., this Court determined that such remarks increased the appearance ofimpropriety, and, indeed, necessitated the reversal of the judge's refusal to recuse" (citingCommonwealth v. White, 910 A.2d 648 (pa. 2006»; id. at 1097 ("to attack counsel personally forrequesting recusal, when the law requires such motions to be put forth before the judge whoseactions are in question in the first instance, is obviously inappropriate"); Offutt v. United States, 348U.S. 11, 17 n.3 (1954) (recusal required where judge criticized counsel as giving a "disgraceful anddisreputable performance on the part of a lawyer who is unworthy of being a member of theprofession; and I, as a member of the legal profession, blush that we should have such a specimenin our midst"); Fairleyv. Andrews, 423 F.Supp.2d 800, 821 (N.D.ll!. 2006) (recusal required wherejudge made comments that could have been interpreted as prejudgment of the case againstdefendants, "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 self10

ecause judge "resent[ ed] unsupported assertions" and "tactics" of counsel); Marshall v. GeorgiaPac. Corp., 484 F.Supp. 629,631 (B.D. Ark. 1980) (recusal where reasonable observer "couldassume 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 dueprocess requirements of the Eighth Amendment make Chief Justice Castille's recusal appropriatein this case.II.PENNSYLVANIA LAW REQUIRES CHIEF JUSTICE CASTILLE'S RECUSAL23. 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. ScrantonTimes, 987 A.2d 633, 634 (pa 2009) (per curiam) ("appearance of impropriety" requiring recusalwhere "there are factors or circumstances that may reasonably question the jurist's impartiality inthe matter"; "There is no need to [rod actual prejudice, but rather, the appearance of prejUdice issufficient to warrant the grant of new proceedings. A trial judge should not only avoid improprietybut must also avoid the appearance of impropriety."). For the reasons already stated, Chief JusticeCastille's "impartiality might reasonably be questioned" in this case; thus, recusal is required underPennsylvania law.24. Moreover, Pennsylvania's Code of Judicial Conduct specifically identifies thefollowing 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 incontroversy." 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 wasindicted must recuse himself from defendant's post-conviction proceedings. The same is true forChief Justice Castille here, since he was the District Attorney throughout the trial and direct appealproceedings, and personally authorized seeking death. See also U ruted States v. Amerine, 411 F.2d11

1130,1134 (6th Cir.1969) (applying similarlanguage from 28 U.S.C. § 455 (1964); recusal of judgewho was United States Attorney for the district in which defendant was tried at the time whencomplaints were issued against defendant "is not a matter for the exercise of[the judge's 1 discretionbut 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 anassociation 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 roleas the Commonwealth's lawyer in this case did not arise through mere "association with otherlawyers" in the District Attorney's Office. Instead, as the District Attorney himself, he was chargedby law with representing the Commonwealth's interests in Mr. Williams' case. While one mightargue 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 DistrictAttorney does not "have an association" with the lawyers under his command. The District Attorneyis not merely a "lawyer in a governmental agency" - he is the head of that agency and the actionsof that agency are his responsibility as a matter of law. See 16 Pa.C.S. § 1420 ("the district attorneymay appoint such number of assistants, learned in the law, to assist him in the discharge of hisduties"); Commonwealth ex reI. Specterv. Bauer, 261 A.2d 573, 575 (pa. 1970) ("district attorneysin this Commonweal th have the power - and the duty - to represent the Commonwealth's interestsin the enforcement of its criminal laws"); id. at 576 (district attorney is the "sole public officialcharged with the legal responsibility of conducting in court all criminal and other prosecutions, inthe 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 for12

the investigation and prosecution of any complaint which he approves"; "the district attorney'sfunction is to represent the Commonwealth in criminal prosecutions. In the capacity as theCommonwealth's attorney, the district attorney has traditionally fulfilled the obligation ofinvestigation and prosecution of crime by initially evaluating complaints to determine whether acharge 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 acase. ''').m. Tms CASE Is DIFFERENT FROM PRIOR CASES IN WmCH CIDEF JUSTICE CASTILLEDENIED RECUSAL MOTIONS26. In prior cases where Chief Justice Castille denied recusal motions grounded in partupon his former position as Philadelphia's District Attorney, Chief Justice Castille relied upon themovant's inability to provide evidence that Chief Justice Castille was "personally involved" in themovant's prosecution. See, !b&, Rainey. 912 A.2d at 757 ("To the best of my knowledge andrecollection, I was not personally involved in any pre-trial investigation of appellant [or] the chargingdecisions that were made in his case .... [Counsel] has pointed to nothing in the record thatdemonstrates otherwise."); Porter, 35 AJdat 33 (rejecting counsel's "repetitious complaint that myformer position as the elected District Attorney of Philadelphia County requires my recusal, eventhough I had no actual involvement in appellant Porter's trial or direct appeal"); Beasley. 937 A.2dat 3 81 ("[T] 0 the best of my 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, personalinvolvement in this case - then-District Attorney Castille's handwritten notation personallyauthorized 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 the13

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 EighthAmendment law, and under Pennsylvania law, for all of the reasons stated herein.IV.IF CHIEF JUSTICE CASTILLE DECLINES TO RECUSE HIMSELF, THIS MA ITER SHOULD BEREFERRED TO THE FULL COURT29. In denying prior recusal motions in capital PCRA cases, Chief Justice Castille statedthat, "[ u ]nder the existing practice ofthis Court, recusal has been a matter of individual discretionor conscience and only the jurist being asked to recuse himself or herself may properly respond tosuch 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 recnsalmotion be referred to the full court, Porter, 35 A.3d at 34.30. Respondent Williams respectfully submits that this practice is inappropriate in lightof 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,-Ipart 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) (recusalrequiredwhen "impartiality might reasonably be questioned").31. To be sure, it is appropriate for arecusalmotion tofirst be considered by the Justiceto whom itis directed, since only that Justice can know if there are subjective factors that require hisor her recusal. But that subjective inquiry is 'Just one step in the judicial process" of consideringa recusal motion - if a Justice makes the SUbjective deternllnation that he or she is not biased, therecusal inquiry must proceed to the objective inquiry that is appropriate under Due Process, theEighth Amendment and Pennsylvania law. Caperton, 556 U.S. at 886 ("Justice Benjamin didundertake an extensive search for actual bias. But, as we have indicated, that is just one step in thejudicial process; objective standards may also require recusal whether or not actual bias exists or can14

e proved."). As the United States Supreme Court recently reiterated:The judge's own inquiry into actual bias ... is not one that the law can easilysuperintend or review, though actual bias, if disclosed, no doubt would be groundsfor appropriate relief. In lieu of exclusive reliance on that personal inquiry, or onappellate review of the judge's determination respecting actual bias, the Due ProcessClause has been implemented by objective standards that do not require proof ofactual bias.Caperton. 556 U.S. at 883.32. As to the objective recusal inquiry, the Justice whose recusal is sought is no betterable to decide, and arguably is less able, than the rest of the Court. Indeed, due process requires thatthe full Court decide the due process-based recusal issue, just as the full Court would decide anyother Constitutional issue presented by a litigant.33. Accordingly, should Chief Justice Castille decide that he is not inclined to recusehimself, the matter should be referred to the full Court for decision under the objective standardsmandated 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 ofCaperton, on question of whether due process requires full Court review of single Justice's recusaldecision); 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 JusticeClifford Taylor [has stated] that Caperton 'has to mean that the challenged justice can't make therecusal decision alone"'); id. at 250 (calling for briefing and argument on question: "Does thisCourt's historical recusal practice - which permits each justice to decide motions for his or herrecusal ." - 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 MichiganSupreme Court's practice of single justice consideration of recusal motions was mooted by that15

Court's adoption of the following "new disqualification rule": "In the Supreme Court, if a justice'sparticipation in a case is challenged by a written motion ..., the challenged justice shall decide theissue and publish his or herreasons about whether to participate. If the challenged justice denies themotion for disqualification, a party may move for the motion to be decided by the entire Court. Theentire Court shall then decide the motion for disqualification de novo. The Court's decision shallinclude the reasons for its grant or denial ofthe motion for disqualification. The Court shall issuea written order containing a statement of reasons for its grant or denial of the motion fordisqualification. Any concurring or dissenting statements shall be in writing.").CONCLUSION AND PRAYER FOR RELIEFFor 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. SKIPPERChief Federal Defender/Shawn NolanPA Bar No. 56535Billy H. NolasPABarNo.83177Assistant DefendersFederal Community Defender Officefor the Eastern District of PennsylvaniaSuite 545 West- The Curtis CenterPhiladelphia, P A 19106(215) 928-0520Counsel for Terrance Williams16