Saturday, August 11, 2018

What Conflict, Judge Says

By Ralph Cipriano

After a lengthy examination of his own conscience, State Superior Court Judge Victor P. Stabile has concluded that he doesn't have a conflict of interest with former Penn State President Graham Spanier.

And so yesterday, the judge in a one-sentence order denied a petition by Spanier's lawyers for recusal.

In June, Judge Stabile was the author of a 2-1 Superior Court decision that upheld Spanier's conviction last year on one count of child endangerment in connection with the Jerry Sandusky sex abuse scandal.

Spanier's lawyers had filed the motion for recusal, saying that years before he was a judge, Stabile had testified in a civil case filed against Spanier and Penn State over the fate of the Dickinson School of Law. At the time, Stabile was a graduate of DSL and a member of its alumni association who was  opposed to Spanier and Penn State's plan in 2003 to relocate the law school from Carlisle to State College.

In his order issued yesterday, Stabile stated that Spanier's application for the judge's recusal and request for a re-argument on Spanier's appeal before a new panel of state Superior Court judges or the entire court was "DENIED."

In an accompanying 23-page memorandum, the judge explained his decision, saying the case where he testified against Spanier and Penn State was "a completely unrelated matter" from a dozen years earlier.

Upon receipt of Spanier's recusal motion, the judge wrote, "I engaged in a conscientious determination of my ability to assess this appeal in an impartial manner, free of bias or interest in its outcome. I can state with clear conscience that I felt no compulsion of bias, partiality, or interest in the outcome of this case to prevent me from deciding this matter solely on its merits, regardless of the fact" that the case involved Spanier.

More than 20 years ago, the judge wrote, Penn State announced that "it would affiliate and then merge with DSL located in Carlisle." During a reception, the judge said, he "briefly met" Spanier, "simply to introduce myself as a member of the DSL community." It was the only interaction he ever had with Spanier, the judge wrote.

In 2003, when PSU proposed moving DSL to State College, Carlisle "had been the home of DSL for more than 170 years," the judge wrote. As a member of the General Alumni Association of Dickinson, the judge said, he was rightly concerned, but noted he was one of many who opposed the proposed relocation of the law school.

"In summary, I was one person with the GAA who joined a cacophony of people, representatives, and organizations that expressed an interest in the future of DSL and opposition to its closure and relocation to State College," the judge wrote.

In his memorandum, the judge conceded that "an appearance of impropriety may itself be enough to warrant judicial recusal." But, he wrote, the party seeking recusal "bears the burden of producing evidence to establish bias, prejudice or unfairness which raises a substantial doubt" as to a judge's ability to "preside impartially."

And if a recusal motion is filed after a decision has been rendered, "the burden of proof is more exacting," the judge wrote. He quoted the state Supreme Court as saying that "one of the strengths of our system of justice is that once decisions are made by our tribunals, they are left undisturbed."

Continuing to quote the state Supreme Court, the judge wrote that the courts generally "are loathe to reopen the controversy for another airing, save for the greatest of need."

In their motion for recusal filed, Spanier's lawyers argue that Judge Stabile had allegedly attacked Spanier in an old email as an "emperor" in "new clothes."

The judge denied that. That old emperor quote, he wrote, didn't refer to Penn State administrators or Spanier.

"I generically referenced 'PSU' and nowhere criticized any individual by name," the judge wrote.

In their motion for recusal, Spanier's lawyers quoted the standard for judicial disclosure of an apparent conflict of interest:

"Where a court has specific knowledge of a private matter or situation in which his or her impartiality may reasonably be questioned, it is his duty to disclose that information to the parties."

Judge Stabile, Spanier's lawyers argued, clearly failed to meet that standard.

The judge, however, wrote that in his online biography, he never hid the fact that he was a graduate of DSL, or a member of its alumni association. Those facts were easily obtainable by Spanier's lawyers, the judge wrote, if Spanier wanted to raise the issue before the judge wrote his opinion denying Spanier's appeal.

In his memorandum, the judge wrote that Spanier's petition wasn't timely, and that Spanier's lawyers hadn't proved any bias. After examining his own conscience for evidence of bias, or any conflict of interest, the judge wrote, he didn't see any problems.

And so he denied the motion.

In his memorandum, the judge declared in a footnote that he came to this decision on his own. Two other judges were on the panel that reviewed Spanier's appeal: Judge Carolyn H. Nichols, who agreed with Stabile on denying Spanier's appeal, and Judge Lillian Harris Ransom, who wrote a dissent. But Judges Nichols and Ransom "did not participate in the consideration or decision of this application," Judge Stabile wrote, referring to the judge's order denying the motion for recusal.

But here's the problem. The legal standard for recusal is not whether the judge actually harbors a bias. Or whether the judge, after much introspection, determines that he is free of bias, and therefore doesn't have to recuse himself.

The test for recusal is the perception held by the objective lay person unfamiliar with litigation. And whether the  accepted facts in the case, namely the judge's former testimony in a lawsuit against Spanier and Penn State, would raise a reasonable doubt in the mind of the lay person about the impartiality of a judge, and whether those facts constitute the appearance of a conflict of interest.

The test is all about what's in the mind of the lay person, not the judge.

Sam Silver, Spanier's lawyer, declined comment.


  1. This seems exactly what you would expect from a judge who thinks he never does anything wrong.

    It also doesn't seem surprising that he didn't consult the other two judges on the case for their opinion.

    Does Spanier have an option for further appeal on this issue?

  2. Anyone expect a different result? Spanier's attorney's failure to defend him at trial laid Graham defenseless against Frank Fina, his cabal, and all the judges he had in his pocket.

    Note how Fina's cabal constantly repeat their nauseating mantra on how they slew the monster Sandusky. They use the well established principle that repeating a lie often enough makes it the truth. It works amazingly well as documented in the literature. Even people who are given facts which debunk the hoax continue to believe the lie. Propagandists, Madison Avenue, and scam artists use this principle to great effect. The general public lack critical analysis skills and are easily manipulated. The only solution is to attack the lie immediately and fiercely. As one author noted, it takes a sea of cowards to allow these things to happen.

  3. From a Mother Jones article date March 8th ,2016 by Michael Mechanic

    The case regarding Terrence Williams when former Supreme Court Justice Castille did not rescue himself as the initial case was before him when he was the District Attorney of Philadelphia. The United States Supreme Court ruled against him, Castile did not agree with the Supreme Courts ruling.

    Castille had a fraught relationship with the Federal Community Defender Office, a group of lawyers who represent numerous death row inmates, including Williams. Castille claimed that federal lawyers had no business appearing in state courts. He complained bitterly over the years about their “prolix and abusive pleadings” and about all the resources they dedicated to defending death row inmates—”something one would expect in major litigation involving large law firms.”

    The defenders, for their part, routinely filed motions arguing that Castille had no business ruling on the appeals of prisoners whose prosecutions he had approved—particularly not in a case in which his office was found to have suppressed evidence helpful to the defense. But as chief justice, Castille had the last word. He denied all such motions, and accused the federal defenders of writing “scurrilously,” making “scandalous misrepresentations,” and having a “perverse worldview.”

    It’s not too hard to predict which way the Supreme Court will rule—although whether their decision helps Williams get a resentencing is another matter. America’s justice system makes it unbelievably hard to get a second chance once you are convicted of a serious crime.

    But all of this brings up a broader, question: Prosecutors like Castille are appointed to the bench in far greater numbers than former defenders—even President Barack Obama has perpetuated this trend. Which is why it was so worthy of note that California Gov. Jerry Brown, under federal pressure to reduce incarceration in the Golden State, has broken with his predecessors and moved in the other direction. Northern California public station KQED recently pointed out that more than a quarter of Brown’s 309 judicial appointments have been former public defenders, whereas only 14 percent were once DAs. (31 percent had some prosecutorial experience.) From that report:

    “We never had a tradition that said to be a judge you had to be a district attorney. That developed probably in the ’90s,” Brown said. “The judges are supposed to be independent. You want judges that have a commercial background, you want judges that have a prosecutorial background, city attorneys, or county counsel, or small practice, plaintiffs’ practice—you want a diversity, instead of kind of a one note fits all.”

    1. From Wikipedia "On June 9, 2016, the US Supreme Court concluded in Williams v. Pennsylvania, that 'Chief Justice Castille's failure to recuse from Williams's case presented an unconstitutional risk of bias.'"


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