we're argument next in case fifteen fifty forty williams versus pennsylvania mr laird mr chief justice and may it please the court due process does not allow the district attorney to make the decision to seek the death penalty against the defendant and then in the same case become the judge of the conduct of the prosecutor who carried out that decision and obtain that result in this case that when he was district attorney chief justice chris steele made a discretionary individualized decision based upon a review of the facts that in his view death was the appropriate sentence to seek does that make a difference the nature of his decision let's say in a policy so i think every case in which a defendant is convicted of first degree murder that we ought to seek the death penalty and leave it to the jury maybe the jury will agree or not but i'm going to seek the death penalty in every case where there's a conviction of first degree murder would you have the same recusal problem i think there would be yes because that policy itself would be a decision that he makes pennsylvania law gives the district attorney i know that it's but it's a categorical decision in other words he doesn't look at the particulars of that case he has a policy that he's adopted and whether you think it's a good policy or not that doesn't depend upon the particular facts simply on the facts of what the conviction is that would still raise due process concerns because that policy would have led to a major decision within the adversary process what if the case was simply in the office and he had supervisory responsibility over everything that occurs in the office but it's a big office if a question arose somebody could bring it tell him but there isn't any indication of personal involvement with that be enough supervisory authority might be an off depending upon the issue when the issue goes directly towards the conduct of the prosecutions in his office it implicates the integrity of the office and the reputation of the leadership  you know the problem that that is presented by this case is not is where this constitutional lawyer is going to be drawn you want us to get in to get pretty deeply into the issue of a constitutional or quetzal policy for judges so it's really not enough to just say what happened here was bad let's assume that that is the case assume for the sake of argument i'm not saying one way or the other but how far does this go that's what i'm that's what i'm interested in so supervisory authority would be enough you said but it depends on the issue why would it depend on the issue because the issue is directly related to that supervisory authority what is the rule that you are formulating so that we can answer justice alito the questions and some are questions recusal is required when and fill in the blank when the cannot any case where as the district attorney he signed on to the death penalty that would be your honor an appropriate decision and appropriate due process will for this court to reach but it's not a rule you need to reach matter that it's the death penalty what if it was not a capital case but he he signed the indictment and i think the death penalty only matters for eighth and then purposes if it was not a capital case if he had direct personal participation in the case and faced an issue that was related to that level of participation that that involvement that he had that would still be a do but what if she signed the indictment on i'm sorry out he signed the indictment let's say the the former and the then prosecutor signed the indictment and there are thousands of indictments and a county like philadelphia so that that would be enough and the signing of the indictment would not be enough but if his assistan came to him and said we don't know if we have enough evidence to charge this person with this crime what do you think and he said i've reviewed the facts and there's enough to charge go ahead that would be the direct personal involvement as oppose you are saying that the road not sure would not be enough because that could be proof forma is not what you're saying yes what if you had a situation where he was directly involved in the matter and had nothing to do with the issue that came up later you know he is the assistant comes in and says we've got a real question here you know he wants a third extension of the trial date and should we oppose it or not and he thinks about it and says yeah let's suppose it and then twenty nine years later there's an issue about you know a brady violation is he would cues from sitting on that brady violation case if if the decision he's made was only about some procedural matter that had no substantive relationship to the crime then why doesn't the brady byelection problem drop out of the case and that's not an argument for an extra argument for recusal because i think in this case the brady violation goes directly to his  role in making the decision this is a brady violation about sentencing and it relates to the decision he made to seek the death penalty and in addition it goes to his essential role as the chief prosecutor violation at the time but but a substantial brady violation certainly call sent to question the integrity of the office as a whole and not just the individual but also ben that doesn't follow the rule that you gave me a you should recuse yourself when and then with if there's a question that involves a substantial integrity or substantial question involving the integrity of the office and so on that's an added in the fact that added factor in your analysis no i think that in my analysis it's it's an issue that relates directly to the decision that's being made by the process so i guess on their personal involvement because i'm a little bit unclear as to what you're arguing one rule could be did the judge have some significant involvement in a critical trial decision as a lawyer is that you're wrong or are you adding something to that that would be i think that a rule consistent with this court's ruling in murchison that you can't have a fair trial in a free society does not allow the prosecutor who prefers the charges to become the judge of that but i don't think that's a role you necessarily have to reach in this case caperton tells us to look at all of the circumstances of the case and that's what i'm suggesting we do here we look at all of the circumstances the brady violation fits in because that is how the trial prosecutor carried out the decision that chief justice christi all had made and so her conduct in carrying out that decision has a direct not in the case but even the question that you know raising and he will have prior opportunities to do that you didn't wait in when they were prior post conviction application and why aren't you in that we didn't raise the recusal issue is that what you're asking me your honor in the prior post conviction litigation we didn't have the information that we had in this time and that's the two critical pieces of evidence of information here one is the memorandum that authorized the death sentence that showed the kinds of factors district attorney to steal looked at in making that decision and so that it was he who made that decision we didn't have that before the second factor would be the fact that it was the brady issue and that there had been evidence that had been suspicious suppressed and findings by a lower court judge that the prosecutor had done so willfully so it was those two factors that were new to the case that caused us to file the view quetzal motion there is a concern about sandbagging though i mean if you do have a case where somebody has that information i think the best thing to do would be to you know put it in the you know the back door take your chances on getting an acquittal and if you don't then you say aha the judge should have recused him or herself an arse remedy is we get to go back and do it all again i recognize the court's concern of sandbagging that similar to the concern the court expressed in strickland ineffectiveness cases that while yours would would try to create different i mean you may think it's pretty unlikely that the attorneys are going to deliberately commit errors or that they have a leader problem but it's another thing if you're talking about a fact about the judge in this prior involvement i'm not sure i can agree with you your honor that it's on likely i've had that argument raised many times during the course of my practice but even if not against you not against me but but even if it is unlikely i think sandbagging for whatever concern can be addressed by the lower courts and certainly isn't a reason to narrow or not apply a due process analysis well i guess it's not a case of sandbagging but it's somehow related in that the information you're talking about would have been information that seriously undermined the defense your client was presenting in other words the information goes to the nature of a prior relationship and his whole argument defense was i didn't know you know who this person was i had no contact with him at all so you know in what sense is that the the material the that you're complaining about now was the last thing he would want to have come come out of his trial and in at least two different senses i think one is this if this material were produced before trial before mr williams testified before he chose what defense he would present perhaps counsel who only met mr williams the day before trial would have had the opportunity to talk to him about this saturday and and counsel him and confer with him of what would be appropriate my second part of the answer would be if that were just so i understand you saying the evidence might have been sufficient to persuade him not to lie might have been sufficient for counsel to be able to develop the understanding with the defendant about what facts were important and what wasn't and what might be a better defense than the defense this nineteen year old this nineteen year old young man with a little counseling i hope to present but but i would say even more is is the materiality in this case goes to sentenc and there are many examples of capital cases where an evidence where a defense of not guilty was offered at trial i don't mind correct mr jaipur his accomplice did not come forward until later so he didn't know that the accomplice would say that there was a different story to tell at all correct that's correct he did not know that prior and he did not know that the sexual abuse could form a very potent defense to a death penalty because there is independent proof of a first set suit purposes yes and and  are secure in fact the trial judge that there wasn't any independent evidence of sexual abuse by this man and for the people correct correct there needed in fact the record show there was correct the independent evidence or complaining about involve the defendant himself correct know the independent as well let me step that that the testimony from mark draper related to the defendant himself the documents that were found within the prosecutor's file related to conduct between the deceased and other young what do you do with the fact that chief justice castillo was not soley responsible for the decision in this case this was a decision by the pennsylvania supreme court and you say it was structural error suppose that the court had been divided and chief justice castillo voted to affirm the decision of the lower court with that decision still be invalid on the ground that he shouldn't have been participating it might be that there would still be a taint to the decision making process but perhaps in that one narrow instance where he voted in the defendant's favor anyway but even there we don't know it doesn't that mean it's not structural error i don't i don't think so because even there we don't know what his role within the decision making process perhaps it was a case where he already saw a majority he had already persuaded a majority of the judges justices to vote in his favor and so the vote against it then he thought his vote was was a vote that he could make without injecting this issue so he saw them is even might have persuaded a majority to vote to reverse and then he turned around and he wrote an opinion saying that there should be in affirming this the problem is we don't know what happened within the decision making structure and we can't know what happened within the decision making structure and that's why the rules should be that that that a defendant should be entitled anyone should be entitled to a panel of appellate judges where there are no judges with bias if we agree with you doesn't that lead inevitably to the rule that a majority of the judges on a multi judge panel have the authority to require the recusal of a coll think that's an interesting question and i think it would depend upon the rules of each court i don't think due process requires that there be any kind of review by some greater well wouldn't they have to do it wouldn't that have to be the consequences suppose that some suppose you make a recusal motion you want chief justice castillo recused and the other justices on the pennsylvania supreme court say we think that he should be recused and we're afraid that if we go ahead with this decision with his participation the decision is going to be subject to attack down the road and we can't allow that to happen so we're going to require him to be recused in order to prevent him from tainting our decision making process or creating at least the appearance that the decision making process is tainted so that would have to be a consequence of your rule would it not and not necessarily  could just take their chances or the consequence of the rule could be that they informally to the just and she says no i disagree with you if the role in the state court if the rule of the court is that the ultimate decision lies with the justice then that's the role and they and they take the chances because that's the role that the courts adopted and that's a perfectly appropriate and find world there's a tiff with you it's awfully difficult in this case is not your case or m it's not your case it's the hundreds or not hundreds but look at all the briefs filed there disqualification rules all over the law and suddenly to turn this into a constitutional matter as we did in  cambridge in which we did with our eyes open we don't know what we're getting and i mean there are congressmen who can become judges who voted on sat tubes that come before them as justice blocked at their executive branch officials who decide all kinds of things and later on something with their name signed on it comes up when does the constitution required or not so that's why i think you're getting these questions my question is is there a way of avoiding this and he had retired reconsideration can be pretty perfunctory or it might be serious and thorough is there anything is there a way for us to send this back and say you said you reconsidered it we're not certain what that be consideration consists of reconsidering i mean is there a way to do that and what do you think of that that's what they're s there's a lot of questions to fit in there so let me try to start the it in my view that pennsylvania supreme court did not reconsider this case because they denied the motion for reconsideration had they granted the motion for reconsideration and then said we'll take another look at this with out chief justice steele that's the remedy that can we tell them to do that that yes yes that's the remedy that we're asking so so we could say given all the facts of which are quite a few and the filing of a motion for reconsideration and the fact that they may not have done that go reconsider it period end  of opinion let me do that i would simply phrase it slightly differently and that's what i was hoping for and say what we're not asking for is to reconsider the decision that's already  to require them to do it over it would have to be because there's a constitutional violation there's something unsatisfying about the remedy that your request didn't write because if the idea is that one judge can affect a whole panel which seems right to me but presumably that if that doesn't go away the moment that we send it back in they have to deal with it again so aren't don't like continue to be tainted in some way if you face that same issue in in the caperton case in the low void case in and granted the relief of sending it back for a new appeal that may be there and it may be that that the remaining justices who heard the case  pennsylvania supreme court is constituted differently should it go back there were three new justices elected this last november and took office in january so the remaining justices may have to consider whether or not they can put aside the prior proceedings and start from fresh air whether they're tainted and we do that all the time whenever a case is reversed and sent back to a lower court judge where that judge has to make a decision to look at this case and white of the guidance they've gotten from the higher court than i trust that the judges will be able to look at themselves and do that but there's one big difference between i think like justice prior with the testing and i think what you're asking like known an obvious mistake a fact or mistake of law but it's a narrow remedy rarely granted of compelling circumstances and that's not what we're asking for we're asking for a fresh start counsel white i understand you're  first two of your three points but i don't understand how the third works this is you're concerned that the chief justice cited his record with respect to capital cases in campaigning for office i justice for steele was reported to have said on multiple occasions i sent forty five people to death row by saying that he's taking the personal responsibility for those decisions and for those actions that i think reflect become an additional circumstances that reflect upon the two other circumstances we've been discussing cisco it's his decision making and and it's an evidentiary point for you it's not an independent ground recusal absolutely it's an added weight to the pile but by itself that would not be a due process while it what what way if any do you think we should give to the current moratorium in pennsylvania on the death penalty  the moratorium is really not for it'll be relevant to the question that's before the court and and then not wait should not be given to it the moratorium is simply the governor's action of delaying executions in the us the last time a prisoner was executed in pennsylvania other than those instances in which the prisoner decided that he did not want to pursue a poet remedies the three executions in pennsylvania since the passage of the new statute in one nine hundred seventy eight were all were all cases of prisoners who gave up their rights i think the last contested execution was sometime in the early one nine hundred sixty s so what's at issue here is only the the death penalty not the conviction of self correct that's right and nobody has nobody other than these so called volunteers has been convicted since one nine hundred seventy eight has been executed since one thousand something that's right but mr williams remains on death row he remains in solitary confinement and subject to strict limitations on death row if i may mr chief justice over serve my chief justice and may it please the court petitioner argues that it is justice castiel supposed to record and personal and substantial involvement with this case that creates a constitutional due process recusal obligation but as he has said here today such an indirect involvement in the case is actually not necessary to his argument at all he has said that if the da merely of promulgated a policy in favor of the death penalty in imposing the death penalty in every case without any involvement in the individual case that that would still be a violation of the due process clause and i think that very fundamental of our jurisprudence that says you can't  can't be prosecutor and judge and so i'm i'm what does it mean to be a prosecutor if you're not taking responsibility personally as he claimed during the election for the decision to execute someone whether by policy or by individual review and there was clearly individual review here and at what point do we give meaning to the constitutional command that you can't be prosecutor and judge i know there's so many different kinds of p q souls this is the ideal case for someone to make a due process claim because the judge here actually his name to his review of the facts and his decision to seek the death penalty but i mean as i'm looking at most of the ethical codes most of the ethical codes would have said you get off if you made this decision your honor i think that's exactly the point that the that it's the ethical codes or statutes that  really control for this sort of situation in that as a constitutional question this is not the ideal case at all why does because in this court's caperton decision you made it very clear that it was the totality of the circumstances test that looked at the intolerable probability of actual bias in the case no bright lines no automatic no presumptions you have to look at the actual the probability of actual bias in the case and if justice probability you are actual pious now i don't want to talk about i don't for the moment of history that there are some cases he disagreed with but don't you think there's a reasonable impropriety is just present i think your honor that after thirty years maybe everybody wouldn't see it that way especially if they looked at the rest of his record as you have referred to and i think that the major point your honor is that any sort of prior conduct by a judge in his prior life that gives rise to a intolerable probability of actual biases the tast it's not limited in some way to prosecutors or even to people who previously had some brief involvement as counsel in a case so as the court has said one looks at the psychological tendencies of human beings that's what the court addressed in cape and we know that there are many cases as justice briar's referred to were judges or justices have been far more involved in an issue that came before the court once they became a judge of justice later on than justice castille was in this case  there are many instances where judges are justices worked on an issue spearheaded an issue fought for legislation for example for years and years and years even may have had it named after them and then sat in judgment on the constitutionality or scope of that legislation now i think that the public would see at least as much potential for bias in a situation like that at least as much possibility that the slut that given human psychology and justice in that judges are human beings they have prior lives and that we don't want to have a situation where the only people who can become judges and sit on cases are people with no prior experience it will be a number of  be and the court in caperton with very clear to make clear in an extended discussion that the due process test is merely a constitutional floor and that the ceiling is set by those codes and statutes that's where you can draw those sort of bright li workable your honor but it's very different to constitutional eyes in that in essence to raise the constitutional floor to the ceiling and that's essentially what the defendants asking for the petitioner is asking for here but in a way that is not really i think the degree of the prior involvement and the among other factors the timing the recency of the prior involvement have to meet the caperton standard of intolerable likelihood of actual bias in the case and if the in a case like this where the district attorney presides over a large office has many many cases during his tenure there were over two thousand murders in the city philadelphia a great number of them were death e that's four hundred cases he's not likely to remember the details of any particular but here of course the essence of the brady as alleged as many as alleged is that the evidence was concealed for years they did know about  and he didn't know about either your honor as has been observed there's absolutely no allegation that justice castille had anything to do with the violation so to him he didn't know about it because the borden's and his office under his supervision concealed  that's that was the allegation your honor and the assumption that the petitioner wants the court to adopt as a matter of law is that then looking at the case thirty years later he would be trying to protect himself by hiding that rather than perhaps angry at the people who would done something wrong there's no basis in the mistrust even nice dress and so if i understood your answer to the chief justice you said significant involvement in a critical trial decision would be a critical factor in deciding when a person across the constitutional line you then simply said that there's kind of a statute of limitations on it and because this is thirty years ago that makes a difference and i understand you correctly i don't recall that i said significant involvement in a significant trial decision your honor certainly significant involvement in the trial or whatever that that may be and while the death penalty decision n understood the difference there you mean you have to be in trial in the courtroom as opposed to in the office making critical strategy decisions about how to prosecute a case no your honor but the the former actually trying the case is obviously much so bright line there your honor any more than there wasn't caperton caperton you had a judge who received three million dollars in campaign funds during the time that the case that he was going to decide was pending in about to reach his court had he receive three thousand dollars worth thirty thousand dollars and had he received it from the same man but ten or twenty or thirty years earlier it would have been a different case and the caperton decision in of itself doesn't tell us the answer to all of those other hypotheticals but it i clear that those factors matter and as they change the likelihood of an intolerable probability of of actual bias as i understand you the one factor that seems to be controlling here is the time limit and other than that there is everything points to due process demanding a refusal except for the time limit it's it is as always a balancing of factors your honor if he had tried the case if he had spent a year as the trial prosecutor in this case did actually trying the case going in on the first murder going on on the second murder thirty years isn't going to matter that much in this and that's a chimney made the most important decision that could be made in this case he he can courage in the recommendation to do that you variance between those two thousand well there's something of a difference in terms of the implication about the level of his involvement in the reason that that's important your honor is because the question is what's he going to be remembering and thinking about and feeling personally committed to when he comes to this case thirty years later as a judge that's how you assess the likelihood of actual probability of actual bias and if in fact he spent the time it takes to read a one and a half page memo thirty years ago in a city where there were two thousand cases of murder and hundreds of other death penalty cases where he was reading similar you think he didn't take that decision extremely seriously i think he took it seriously your honor but i think that he took it less seriously than if he had been  someone had to make a decision of where to cut they looked at each case on its merits they looked at the aggravating circumstances under the statute and they decided i presume they look at mitigators well they may or may not have your honor at the time there was there would have thought with with that he treated all of these cases the same way he had the same policy and procedure for all of these supposed this case were exactly the same except he had done it three years ago what would your answer be today i think that would be a much closer question your honor would would your answer be i'm not sure your honor we're talking to the fact that he's been thirty years in solitary confinement actually helps the state well your honor as we addressed in our brief it's it's not exactly thirty years in solitary confinement and it the governor who issued the moratorium is in charge of the department of corrections and if he wants to change conditions on death row he's certainly free to do so i don't know if there's been any request by this defendant or others to rearrange the in light of his more tour we are talking about a constitutional we're cuse a wall which would have very serious consequences so if it's even if it isn't absolutely necessary that that will be very clear certainly it is highly desirable that it be very clear so that everybody can determine with a degree of certainty when the time when the decision is made whether recusal is constitutionally required or not and i really don't see a clear rule that would encompass the situation other than a rule that sad that a judge may is required by the constitution recuse in any case in which the judge had personal participation as a prosecutor anything other than that seems to me to be pretty fuzzy but that would be a pretty far reaching rules so can you think of going to be subject to a lot of uncertainty and debate they are your honor but that's exactly the situation in caperton that this court addressed and ruled on there were no such bright lines that arose out of caperton even on a a matter that is of great importance which is the nature of campaign contributions what did happen after caper to your honor is that something there was a model rule four point four adopted in which a bright line was drawn any amount over three thousand dollars four thousand dollars is a violation of these rules any amount under it is not a dollar more is a violation a dollar less is not that's a clear earlier but it was done by a rule not by a constitutional mandate and it will be up to each individual jurisdiction what number they play in their what campaign amount they contribution amount they think is the appropriate amount now there's also a rule to eleven and that is somewhat akin to the federal statute four fifty five involving prior involvement by a government lawyer in a case and that really is the argument that the petitioner has been making he calls it a constitutional paper thin argument your honor but he uses the exact language o two eleven and that's that would certainly be making the constitutional floor into the constants into the statutory ceiling there would be no room in between but i would like to speak for a bit about the second question of the case your honor because i think it's actually even more troubling than the first one and i think it's a radical departure from previously from from previous practice the petitioners position is that because we can't know exactly what the other judges on the panel do we have to throw out the whole case we have to assume assent in essence the worst we have to assume as a constitutional mandate that all the other justices or judges were tainted and that's a reversal of the essential premise of judicial review which is that at least non reviewable judges follow their oaths to apply the law and if we do abandon that principle we have not just harmless error because there was a multi member but i wouldn't call it is that a fair statement or not i wouldn't actually i don't think that the phrase harmless error is the best way to describe the situation your honor because with a multi member court the process is the court not given individual judge at the trial level the judge is literally the court so if the judge is constitutionally biased there's no issue there but it's a very different issue at the appellate level so i just so i understand the scope of your argument you would be arguing the same thing if there were three judges one should have recused that leads to what i would be arguing your honor is that again a totality of the circumstances test apply certainly the the vote matters ok if it's if it's three to nothing that's better than fact matters what the deliberations of the judges were like i mean if the individual who should have been recused occupied a dominant role in the discussion and so successful in persuading colleagues and all that and of course that's the sort of evidence you certainly can't have access to your honor of course an individual justice can be persuasive to other judges or justices on occasion perhaps even a lawyer can be persuasive but if so it's by the power of their reasoning and if they person if other justices are persuaded by something other than the power of the argument then they're not fulfilling their oath if they're persuaded because they like the person or if they vote against because they don't like the exposure you have a very brilliant trial judge and the power you don't really hear the whole case yes your honor and i know that case there was nothing wrong with the participation of the time but your ardor point is the judge from gong i think who wasn't supposed to sit in the ninth circuit and again i think  the decisions went ahead the same thing could come up with a recess appointment and there are many of those and but i don't know where there's a disqualification of the judge because of bias is a disqualification because of bias because in that circumstance is something biased about that judge being in that panel now in that situation your honor i can think of a lot for counsel from the i believe from the traditional conference i'm not sure exactly the the authority but it's an advisory opinion for federal judges and it says that where a judge recuses during the process the remaining judges can carry on and i think that these under under section four fifty five your honor which is this court has described it covers both actual bias and the possibility of actual bias and there's no such distinctions made in the advisory role in many of the cases cited by either petitioner or ourselves have actually seen relied on advisory opinion number seventy one i wonder petitioners position that's impossible because the recuse judge has ordered participated in the process it doesn't matter if he gets out for the vote and you know but there's a difference you see where the judge recuses himself during the process the remaining judges know that and because they know that they make an effort to decide it among the two where the judge didn't recuse himself during the process the other judges take his point of view into account just as they would if they're in the ordinary circumstance in practice i think that's a big difference your honor they they always take the other judge's opinion not not in an instance we're you know that you shouldn't because that judge should not have participated but under petitioners point of view your honor we can't know that his whole know it at the moment his father but but but but you what you do know at the moment is that the two judges who or at six or whoever were there didn't think we must ignore his situation what he thinks they didn't think that too of course they didn't in the situation that they're talking about in the a b a i take it the remaining judges do know that they are not to take into account the opinion of the judge who's out of it but they can't know whether they court know about the recusal motion at the time the recusal motion was was docketed your honor and so they undoubtedly knew about it and they also knew that choir motions had been filed and in fact in prior cases as we've pointed out the petitioner actually essentially appeal from the individual decision of justice castiel not to recuse and ask the rest of the court to put it in the other cases in which that was the case no one knew that he was actually signing off on a review of the cases they they knew that the allegation was that he was personally approving them your honor that has been known all along prior recusal motions were based on that assertion that he was personally recusing them now there's any number of ways in which he could have done that  he could have hold held a conclave he could have had a week long meeting to decide every individual case he didn't do that what he actually did was much less involvement and that sort of process would have entailed so the fact that they didn't have the memo didn't change the essential point of the of the argument and in fact petitioners said here today that even if the district attorney had a flat policy and didn't look at any individual cases that would still a recusal problem and i think that the the participation of the involvement of other justices is is really one of the core problems here because under the petitioners point of view it really can't happen because they they will be tainted by the justice who they're looking at their collegial it's a collegial process he says and because of that they can't really know what their whether they've been affected by what he did and so we really have a dead ender or circularity here honor because there's there's no where to go and if you look to to pick up on earlier questions if you look at this court's historic practice as it's termed it in recusal matters it is to refer a recusal motion to an individual justice and that's it now under petitioners approach i think that's seriously problematic a difficulty for the court you have two options either to continue that practice having held if you adopt petitioners point of view that the failure to recuse the erroneous failure to recuse taints the votes of every other justice on the court but the court declines to look at the issue or you adopt a new practice in which the court in fact looks at the refusal of the individual to someone makes a decision for itself which puts it in the position of deciding who the members of the court will be on any little confused by this and this line of argument what is pennsylvania each of the judge decides whether to recuse actually in pennsylvania your honor there was the opportunity for full court look at the matter and if necessary would tell that justice that he had to recuse and in fact the court followed the practice of looking at it in the previous case and wondering and to look at it what triggers in the family and defend that justice castille recused himself from that motion in the full court went on to decide it under the i o p s motions for reconsideration go to the individual justice not to the chief justice so if petitioners theory were correct justice catskill could have blocked that consideration he did not he recused himself and passed it on to the rest of the court when under the i o p a matter is assigned to an individual justice on the pennsylvania supreme court a full court matter is assigned to an individual justice section two of the i  state explicitly the fewest simon neither inhance has the power of the assigned judge nor diminishes the power of the other justices to ensure proper disposition right that's really wonderful and how about if they got it wrong they they were  it mean that if a whole court looks at something it's got it right of course that if there's an ethical standard that says the judge has been involved in a case shouldn't be there and they got it wrong on their own rules if if there's a constitutional standard if it doesn't mean they were right either they got it wrong if they let them sit yes your honor but they still face a dilemma because they have to make a decision about whether the can they have to do it no matter what meaning if if the state is telling them look at this and recuse someone if it's appropriate to do so then the state has imposed that obligation well the question is whether the constitution imposes the obligation for the full court to look at it and in fact in his refusal about a decision in this case would require that that's a feature unique to pennsylvania and many other states including this court it goes up to the individual judge in his recusal motion your honor at page two hundred in the joint appendix i'm sorry at page two hundred two in the joint appendix you'll see the petitioner made exactly this argument he said indeed due process requires emphasis in the original requires that the full court decide due process based recusal claims and i think on petitioners theory that would be true because it's a constitutional issue and the failure to decide it potentially taints the rest of the court so that the action of the entire automatically invalid and that's i think not what due process requires because at the appellate level the process is not the individual judge it's the court and the recusal or non refusal of an individual judge does not in of itself automatically result in a deprivation of due process because he is not the process the court is the process and you look at a variety of circumstances to decide whether the other members of the court on an objective standard you can't know what they are doing subjectively of course but on the same objective standards applied in caperton to determine whether there is a probability of actual bias on the part of the other members of the court whether it's a court of three or a court as some on can be a court of fifteen under the petitioners view even the fifteen to nothing vote would be automatically constitutionally invalid and we don't think that that's but if we say that then we say that being a judge on a fifteen pennsylvania supreme court states and it's section two of the tyo piece on every court of every size it is the duty of each individual justice to make an independent terminations following his oath to do the right thing and that is why the court is not automatically invalid thank you counsel mr levy four minutes remaining thank you let's start with the passage of time in our view the passage of time the relevant factor it's that it's the same case this is even though this case is lasted a very very long time through numerous different hearings and delays this is the same pace and so what you had was chief justice  still participating in this case as both a prosecutor and a judge in the same case and that's where the problem that's where the due process problem starts what separates the out from the ethical rules is that this is an extreme and rare case that's what paper tim was talking about where the ethical rules were not sufficient to cover the problems here and we know that this is an extreme and rare case because there's no other case like right there's no other case that that respondents have cited to and none that we found where a judge in this situation has sat and decided on the case this may be an extreme case but if we do not any personal participation requires recusal under the constitution what other clear line can you give us hope well to the extent that caperton is not a clear line i think where we're still with paper tend if you want to clarify the line of paper to end it is about the the judges participation in a significant decision making in the case and where the issues before them are related to that decision making that's that's the line i would suggest that you can draw on this case one question two if you accept the respondents position what you would be saying it's ok to have one to one biased judge on an appellate panel or two or three so long as a majority voted in favor were not biased and that's not appropriate under the due process clause the idea of fairness the public confidence in the integrity of the fairness of the system requires that each judge of be free from bias and lastly i would say about referring to still using his power as the chief justice kwok that he said i going to deny the motion to recuse and i'm going to deny referral to the full court so we did what we could to have the full court hearing and we weren't able to get