Mumia Abu-Jamal Legal Motion to Remove Justice Ronald D. Castille

APPELLANT JAMAL'S MOTION TO RECUSE JUSTICE RONALD D. CASTILLE FROM ANY FURTHER PROCEEDINGS IN THIS ACTION.

COMES NOW Appellant Mumia Abu-Jamal and hereby moves this Court for an Order recusing Justice Ronald D. Castille from any further proceedings in this action and, in support thereof, alleges and says as follows:

INTRODUCTION

Appellant Jamal previously presented to this Court a motion for remand to take testimony under oath from Justice Ronald D. Castille with regard to his responsibility for the infamous McMahon videotape, produced by the Philadelphia District Attorneys' Office during Castille's administration. The videotape, which instructs Assistant District Attorneys on how to utilize peremptory challenges to ethnically cleanse juries of African-Americans, was officially condemned by this Court in Commonwealth v Basemore, 560 Pa 258, 744 A2d 717, 731, n. 12 (2000), for recommending practices "which flaunt constitutional principles in a highly flagrant manner." The videotape's first frame bears the name Ronald D. Castille and his title as District Attorney, the Official Seal of the City of Philadelphia, and the logo of DATV Productions, the video production department of the Philadelphia District Attorneys' Office.

Justice Castille recused himself from participating in this Court's consideration and subsequent denial of Appellant Jamal's remand motion to take his testimony, although the Justice did not recuse himself from participating in this Court's consideration and denial in 1998 of Appellant's motion for remand to supplement his Batson claim with the McMahon videotape and to conduct discovery with regard to it, nor did the Justice recuse himself from this Court's consideration and denial in that same year of Appellant Jamal's appeal from denial of post-conviction relief. Commonwealth v Abu-Jamal, 720 A2d 79, 86 (Pa. 1998).

Justice Castille's recent self-recusal from consideration of Appellant's remand motion to take his testimony with regard to the Justice's responsibility for the McMahon videotape itself provides a basis to grant this recusal motion as it is just as inappropriate for the Justice to have any further participation in the proceedings in this action as it would have been for him to participate in ruling on the motion to take his testimony with regard to the McMahon videotape.
I. JUSTICE CASTILLE SHOULD BE RECUSED FROM ANY FURTHER PARTICIPATION IN THESE PROCEEDINGS BECAUSE THE POST-CONVICTION/STATE HABEAS PETITION UNDERLYING THIS APPEAL CONTAINS A BATSON CLAIM.
Appellant Jamal's Petition for Post-Conviction Relief and/or Writ of Habeas Corpus which underlies the instant appeal herein contains a Batson claim as sub-issue 7 of the Ninth Claim for Relief. The unique circumstances and grave miscarriage of justice considerations which underlie Appellant's arguments with regard to this Court's (and the Court of Common Pleas') inherent power to entertain that Petition on its merits is inextricably interwoven with the merits of the underlying claims in the Petition.
Justice Castille was District Attorney during the pendency of Appellant's direct appeal, which included a Batson claim, which the District Attorneys Office opposed. Justice Castille previously participated in ruling on and denying Appellant Jamal's appeal from denial of post-conviction relief, which included a Batson claim, without disclosing to the Court or the parties his official responsibility for the McMahon videotape in his capacity as District Attorney, as evidenced by its bearing his name and title as District Attorney alongside the Official Seal of the City of Philadelphia and the logo of DATV Productions. Additionally, Justice Castille participated in this Court's denial of Appellant Jamal's remand motion to take evidence concerning the McMahon videotape, submitted while that appeal was under submission, also without disclosing his responsibility for the videotape.
II. THE PHILADELPHIA DISTRICT ATTORNEYS' STRIKE RATE FOR BLACK JURORS EXPERIENCED ITS MOST DRAMATIC INCREASE DURING THE CASTILLE ADMINISTRATION AFTER THE BATSON DECISION CAME DOWN AND THE MCMAHON VIDEOTAPE WAS PRODUCED.
The Baldus Study, which covers the period 1981 through 1997, includes a specific discussion of the McMahon videotape (3 U. Pa. J. Const. L. 3, 41-43) and provides a wealth of statistical data which suggests that the racially discriminatory tactics taught to prosecutors in that videotape were utilized throughout that period to keep African-Americans from serving on juries. Of direct relevance to this recusal motion is the graph set forth in Figure 4 of the Baldus Study (3 U. Pa. J. Const. L. at 75) which shows that, although the United States Supreme Court decision in Batson v Kentucky,476 US 79 (1986) came down in the first year that Justice Ronald D. Castille was Philadelphia District Attorney, the strike rate of Black jurors by Philadelphia prosecutors did not decrease, but dramatically increased, beginning in the period 1986-1987, to reach a significantly higher level in the period 1989-1990, than in either the preceding Rendell administration or the succeeding Abraham administration. The McMahon videotape, which teaches prosecutors numerous means of removing Blacks from juries while disguising the discriminatory purpose of so doing, was produced in the 1986-1987 period.
III. OF THE THREE BATSON DECISIONS BY THIS COURT INVOLVING THE MCMAHON VIDEOTAPE WHICH ARE KNOWN TO APPELLANT'S COUNSEL , THE ONLY ONE IN WHICH RELIEF WAS GRANTED WAS THAT IN WHICH JUSTICE CASTILLE RECUSED HIMSELF.
Appellant Jamal's counsel have found three decisions of this Court ruling on Batson claims involving the McMahon videotape: Commonwealth v Basemore, 560 Pa 258, 744 A2d 717 (2000); Commonwealth v Lark, 560 Pa 487, 746 A2d 585 (2000); and Commonwealth v Rollins, 558 Pa 532, 738 A2d 435 (1999).
A careful review of the particular circumstances of each of these cases provides strong additional support for granting this motion to recuse Justice Castille.
Basemore, the only decision in which Justice Castille did not participate, is the only decision out of these three Batson cases in which this Court granted appellate relief to a petitioner on a Batson claim and ordered the matter remanded for an evidentiary hearing. In Lark and Rollins, in which Justice Castille did participate, the petitioner's Batson claim was denied by this Court on the basis that a prima facie case was not established despite the evidence of the McMahon videotape.
In Basemore this Court directly ruled that the practices taught in the McMahon videotape with regard to jury selection by prosecutors in criminal cases were in "highly flagrant" violation of the United States Constitution: "[W]e condemn in the strongest terms the practices described in the transcript presented [of the McMahon videotape], which flaunt constitutional principles in a highly flagrant manner." 744 A2d at 731, n.
This Court itself enumerated those practices as follows: "In the document [i.e., the transcript of the McMahon videotape]: the purpose of voir dire, namely, to select a fair and impartial jury, is denigrated as 喪idiculous,' in favor of the selection of jurors who will be biased in favor of conviction; various racial and gender stereotypes are described and offered as reasons to discriminate in the selection of jurors; techniques for accomplishing such discrimination are described in detail, including the maintenance of a running tally of the race of the venire panel and the invention of pretextual reasons for exercising peremptory challenges; and a willingness to deceive trial courts to manipulate jury panels to these ends is also expressed." 744 A2d at 729.
IV. THIS COURT RULED IN BASEMORE THAT THERE IS AN UNQUESTIONABLE INFERENCE OF "INVIDIOUS DISCRIMINATION" ON THE PART OF ANY PROPONENT OF THE PRACTICES DESCRIBED IN THE MCMAHON VIDEOTAPE.
After specifically quoting numerous shocking excerpts from the transcript of the McMahon videotape (744 A2d at 730-731), this Court specifically held that "[t]here can be no question that the practices described in the transcript support an inference of invidious discrimination on the part of any proponent." 744 A2d at 731-732 [emphasis added]. It must be emphasized that this Court did not limits its finding in this regard to Mr. McMahon himself, but ruled instead that there is an unquestionable inference of invidious discrimination on the part of any proponent of these practices.
V. THE TERM "ANY PROPONENT" OF THESE PRACTICES MUST NECESSARILY INCLUDE THE DISTRICT ATTORNEY WHOSE NAME AND TITLE APPEAR IN THE FIRST FRAMES OF THE VIDEOTAPE ALONG WITH THE OFFICIAL SEAL OF THE CITY OF PHILADELPHIA ・JUSTICE RONALD D. CASTILLE.
The conclusion is inescapable that the term "any proponent" of these practices must necessarily include the District Attorney whose name and title (as well as the Official Seal of the City of Philadelphia) appear in the first frames of the McMahon videotape, viz. Ronald D. Castille. There is no evidence that Justice Castille, when he was District Attorney, ever disavowed the McMahon videotape which bears his own name and title, either within the District Attorneys Office to those Assistant District Attorneys for whose conduct he was responsible as their ultimate supervisor, or publicly. To the contrary, the very existence of the videotape was not publicly revealed until Castille's successor, Lynne Abraham, used it to discredit Mr. McMahon when he ran against her as a candidate for the position of District Attorney.
In Basemore, this Court found that "tactics of the sort reflected in the transcript [of the McMahon videotape] impugn the legitimacy of the judicial process." 744 A2d at 733 [emphasis added]. Given Justice Castille's responsibility for the McMahon videotape's production by the District Attorneys' Office during his administration, and his failure to the present day to disavow the practices advocated therein ・practices which this Court held in Basemore to raise an inference of "invidious discrimination" by any proponent of such practices ・any further participation by him in the proceedings in this action would violate Article V, Section 18 of the Pennsylvania Constitution which specifically enumerates as conduct for which a judge may be disciplined "conduct which prejudices the proper administration of justice" and "conduct which brings the judicial office into disrepute."
VI. JUSTICE CASTILLE PARTICIPATED IN THIS COURT'S DECISIONS IN LARK AND ROLLINS WITHOUT DISCLOSING TO THE COURT OR THE PARTIES THE FACT THAT HIS NAME AND TITLE AS DISTRICT ATTORNEY APPEAR IN THE FIRST FRAMES OF THE MCMAHON VIDEOTAPE ALONGSIDE THE OFFICIAL SEAL OF THE CITY OF PHILADELPHIA AND THE LOGO OF "DATV PRODUCTIONS."
In Rollins this Court, with Justice Castille participating in the decision, rejected a Batson claim underlying an "ineffective assistance of counsel" claim on grounds of failure to make a prima facie showing of improper use of peremptory challenges, despite the evidence of the McMahon videotape. The Rollins Court specifically ruled as follows:
Appellant also claims that the existence of a training tape created [emphasis added] by then-Assistant District Attorney Jack McMahon (who did not prosecute Appellant) in 1987, which instructed prosecutors to manipulate the jury selection process in order to minimize the seating of African-American jurors, supports his Batson claim. Appellant is incorrect as the existence of the tape does not demonstrate that there was discrimination in his case. 738 A2d at 443, n. 10.
However, Justice Castille participated in that decision without disclosing to the Court or the parties that, rather than having been "created" by Mr. McMahon, the videotape was, in fact, created by DATV Productions, and in its first two frames bears the name and title of Ronald D. Castille as District Attorney, alongside the Official Seal of the City of Philadelphia and the logo of the District Attorneys Office video production department. Such evidence would necessarily have proved up the appellant's prima facie case.
In Lark, this Court relied, in part, upon its earlier decision in Rollins, to find similarly that no prima facie case had been established under Batson despite the evidence of the McMahon videotape:
"We reject Appellant's suggestion that Attorney McMahon's statements during a training session in 1986 or 1987 governed the conduct of a different prosecutor in 1985 merely because both attorneys worked in the same office. We have also previously determined that the tape is not sufficient to establish a policy of discrimination in jury selection by the prosecutors in the District Attorney's Office of Philadelphia County ... [citing Rollins] Thus, the McMahon tape in and of itself 租oes not demonstrate that there was discrimination in his case ... [again citing Rollins] and cannot form an independent basis for a Batson claim." 746 A2d at 589.
Again, Justice Castille participated in this decision without disclosing to the Court or the parties that his name and title as District Attorney appeared in the first frames of the McMahon videotape alongside the Official Seal of the City of Philadelphia and the logo of the District Attorneys Office video production department, DATV Productions. Such evidence would have established the prima facie case which the Court held had not been proved. Nor did Justice Castille disclose that the assumption which underlay the Court's earlier decision in Rollins, i.e., that the videotape was "created" by McMahon, was not only false, but would be refuted by the evidence of his own responsibility for the videotape as evidenced by its bearing his name and title as District Attorney.
Finally, in the case of Appellant Mumia Abu-Jamal, as noted above, Justice Castille participated in this Court's prior decisions in 1998 denying his remand motion to conduct discovery with regard to the very same McMahon videotape which bears the Justice's name and prior title as District Attorney and denying Appellant's appeal of denial of post-conviction relief, an appeal which included a Batson claim, without disclosing to this Court or the parties his responsibility for the McMahon videotape.
Under the above-elucidated circumstances, for Justice Castille to participate in further proceedings in this matter would be in violation of Article V, Section 18 of the Pennsylvania Constitution which specifically enumerates as conduct for which a judge may be disciplined "conduct which prejudices the proper administration of justice" and "conduct which brings the judicial office into disrepute." Moreover, for Justice Castille to participate any further in the proceedings in this case, given his past conduct in participating in this Court's decisions in the above-enumerated cases, and his prior rulings in the case of Appellant Jamal, would represent an egregious violation of the Code of Judicial Conduct, Canon 1 ("A judge should uphold the integrity and independence of the judiciary."), Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all his activities.") and Canon 3(1) (A judge "should perform the duties of his office impartially and diligently.").
Moreover, for Justice Castille to have any further participation in the proceedings in this appeal would violate Appellant Jamal's right under the Fifth and Fourteenth Amendments to the United States Constitution to a hearing before an impartial tribunal free of improper judicial bias. See, e.g.,Berger v United States (1921) 255 US 22; United States v Grinnell Corp. (1966) 384 US 563; and Likety v United States (1994) 510 US 540.
CONCLUSION
For all of the foregoing reasons, Appellant's motion for remand to take testimony under oath of Justice Ronald D. Castille should be granted.
Dated: July 3, 2002
Respectfully submitted,
MUMIA ABU-JAMAL Appellant
NICK BROWN
ELIOT LEE GROSSMAN
MARLENE KAMISH
Attorneys for Appellant Mumia Abu-Jamal
MIKE FARRELL
Local Counsel for Appellant