COMMONWEALTH OF PENNSYLVANIA v. LEROY FEARS
No. 781 CAP
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
May 18, 2021
[J-61-2020] [OISA: Mundy, J.] SUBMITTED: July 7, 2020
OPINION IN SUPPORT OF REVERSAL
JUSTICE WECHT
The instant appeal arises
The Opinion in Support of Affirmance (“OISA“) proffers аlternative grounds for affirming the lower court‘s dismissal order. First, the OISA
I would not reject either claim presently. Instead, because the PCRA court did
I. Procedural History
On June 18, 1994, Leroy Fears molested twelve-year-old Shawn Hagan on the banks of the Monongahela River in Allegheny County. When Hagan threatened to tell his parents what had happened, Fears strangled Hagan to death. He then had anal intercourse with Hagan‘s body, tied a tire rim around Hagan‘s neck, and swam with the body out into the river until it sank below the surface. When Hagan‘s remains were discovered days later, Fears confessed to the murder, took detectives to the crime scene, and provided a videotaped confession. Commonwealth v. Fears, 836 A.2d 52, 56-57 (Pa. 2003) (”Fears I“).
After pleading guilty to first-degree murder and related charges, Fears was sentenced to death on February 7, 1995. He did not appeal. In January 1996, Fears, acting pro se, filed a petition for post-conviction relief, alleging that cоunsel had failed to file an appeal on his behalf. The Commonwealth agreed to the reinstatement of Fears’ post-sentence motion and appellate rights, which the trial court granted in May 1999. Thereafter, the court denied relief in July 2001. This Court affirmed the judgment of sentence in a unanimous opinion on November 20, 2003.1 Id. at 58, 74. The Supreme Court of the United States denied Fears’ petition for a writ of certiorari on June 27, 2005. Fears v. Pennsylvania, 545 U.S. 1141 (2005).
Fears filed his first counseled PCRA petition in June 2006, in which he raised numerous challenges to the effectiveness of his trial and appellate counsel. Relevant here, Fears alleged that trial counsel was ineffective for failing to present mitigating evidence of, among other things, the sexual abuse Fears allegedly suffered during adolescence at the hands of his foster brothers and a male cousin, as well as a family history of mental illness, alcohol abuse, and sexual violence on his mother‘s side. He also included a derivative claim alleging that appellate counsel was ineffective for failing adequately to litigate the issue of trial counsel‘s stewardship on direct appeal.2 As part of his evidentiary proffer in support of his claims, Fears presented the results of a comprehensive psychiatric evaluation performed on him and the resultant diagnosis of “major depressive disorder with psychotic features.” Fears II, 86 A.3d at 813 (citing Decl. of Dr. Richard G. Dudley, 5/25/2006, at 1-2). During that evaluation, Dr. Dudley documented that Fears “was ashamed from the sexual abuse” that he experienced while in foster care and “also felt shame from feeling he was gay, which was exacerbated because
On February 19, 2014, this Court affirmed the PCRA court‘s denial of relief in an opinion authored by Justice Eakin. As to the mitigation issue, we observed that Fears’ allegation “of trial counsel‘s ineffectiveness for failing to explore mitigating circumstances was developed by appellate counsel” on direct appeal and was rejected as meritless by this Court in 2003. Id. at 816. For those reasons, we dismissed Fears’ derivative challenge to appellate counsel‘s purported “failure to properly litigate trial counsel‘s ineffectiveness.” Id. at 817.
Following our 2014 decision, an email scandal came to light as a result of
an investigation by former Attorney General Kathleen Kane into her predecessor‘s handling of an unrelated matter. This investigation uncovered emails sent from and received by members of her office on Commonwealth owned computers that contained racist, sexist, misogynistic, homophobic, and religiously and ethnically insensitive content. Their piecemeal release revealed individuals from all three
of his challenge to trial counsel‘s stewardship to be “appropriate” at that time because “trial counsel had testified at an evidentiary hearing, and the trial court had addressed [Fears‘] allegations in its opinion.” Fears II, 86 A.3d at 802. Therefore, we “reviewed those [ineffectiveness] claims that were fully litigated below, and dismissed without prejudice those not ripe for review.” Id. (citing Fears I, 836 A.2d at 59 & n.7, 69, 71).
branches of the Commonwealth‘s government as having sent and/or received these emails.
Commonwealth v. Robinson, 204 A.3d 326, 327 (Pa. 2018) (Opinion in Support of Reversal (“OISR“)); see also Commonwealth v. Blakeney, 193 A.3d 350, 354-56 (Pa. 2018) (OISR).
As was thoroughly recounted in Robinson and Blakeney, the Attorney General‘s email investigation implicated two former members of this Court: Justice Seamus McCaffery and Justice Eakin. Details of Justice Eakin‘s involvement began to be released publicly in the fall of 2015. On October 1, 2015, then-Attorney General Kane announced that she had turned over to the Judicial Conduct Board “more than 1,500” emails in the possession of the Attorney General‘s Office that Justice Eakin had received or sent, some of which involved “racial, misogynistic pornography” and “jokes” about domestic violence.3 The next day, the Philadelphia Daily News, a newspaper owned by the parent company of The Philadelphia Inquirer, revealed that it had obtained some of Justice Eakin‘s emails. In describing their contents, the article noted generally that, “One mocks gay people. Some make fun of Mexicans or African-Americans. Some are pornographic. Some make fun of women. Some might just be considered juvenile.”4
One week later, on October 8, 2015, the Daily News printed an extensive examination of the emails that it had obtained and rеviewed. Among the graphic descriptions of more than twenty individual emails, the article indicated that Justice Eakin had sent at least one email containing a “joke” about a woman who was beaten by her husband, and that he had received a number of emails containing “slurs about homosexuals” and “poking fun at Muslims” and African-Americans.5 The article also
On October 22, 2015, Attorney General Kane publicly released forty-eight emails that Justice Eakin sent or received between January 1, 2008, and December 31, 2012, four of which originated from his private email account.7 At that time, she described the tranche, which largely consisted of “images of topless and nude women as well as sexual jokes,” as “only a subset of pornographic, misogynistic and racist emails received and sent by Justice Eakin on his private email address.”8
After reviewing the emails turned over by the Attorney General‘s Office, the Judicial Conduct Board filed a complaint against Justice Eakin on December 8, 2015, alleging violations of the Code of Judicial Conduct and Article V of the Pennsylvania Constitution arising from his email practices. The complaint included a survey of the emails sent by Justice Eakin to employees of the Attorney General‘s Office, along with those received by him from members of that office, between 2008 and 2014. In total, the complaint documented that Justice Eakin sent 157 emails and received 786. Compl. at 23, ¶¶ 56-64. Of the 157 emails sent by Justice Eakin, according to the complaint, “a number of these emails contained subject matter that involved nudity, gender stereotypes, and ethnic stereotypes.” Id. at 25, ¶ 78. Included among the eighteen emails sent by Justice Eakin that were described in the complaint were the previously reported “joke” about a wife who was beaten by her husband, id. at 27-28, ¶ 78(h), and two “off color jokes” regarding the biracial identities of professional golfer Tiger Woods and President Barack Obama. Id. at 29-30, ¶ 78(m)-(n).
As for the 786 emails received by Justice Eakin, the complaint details seventy-nine of them, which included “pictures of nude women; sexually-suggestive themes; gender
The Court of Judicial Discipline (“CJD“) issued an interim suspension of Justice Eakin on December 22, 2015, barring him from his judicial and administrative duties until further order.10
Within two months of the publication of the complaint, Fears filed the instant PCRA petition, in which he asserted that this Court‘s denial of relief in his previous PCRA appeal was tainted by the involvement of Justice Eakin because he had “sent and/or received emails that showed a bias against persons of color and gay persons and victims of sexual abuse, domestic abuse and incest.” PCRA Pet., 2/8/2016, at 1, ¶ 1.11 Fears requested the appointment of counsel; discovery; “an evidentiary hearing on all claims involving disputed issues of fact“; and relief in the form of vacatur of his guilty plea and death sentence, a new trial or sentencing proceeding, the reopening of his post-conviction proceedings, and “such other and further relief as is just and necessary.” Id. at 23.
Conceding the facial untimeliness of his petition—which he filed more than a decade after his judgment of sentence for first-degree murder and related crimes became final—Fears pleaded that he satisfied the newly-discovered facts exception to the PCRA‘s jurisdictional time-bar. To satisfy that exception, a petitioner must demonstrate that “the facts upon which the claim is predicated were unknown to the petitioner and could not be ascertained by the exercise of due diligence.”
In his petition, Fears pleaded generally that “the facts upon which the claim is predicated were unknown to [him] and could not have been ascertained by the exercise of due diligence until now.” PCRA Pet., 2/8/2016, at 13, ¶ 49. He also averred that he filed his petition within “60 days of the Complaint being filed against Justice Eakin by the Court of Judicial Discipline; his public apology and admission of sending and receiving the emails and his temporary suspension pending trial.” Id. Significantly, Fears said nothing substantive about his inability to discover the facts upon which his claim was predicated earlier with the exercise of due diligence.13 He noted, however, that he filed his claim “at this time in an abundance of caution, and to avoid any statute of limitations defenses, based upon information currently available through publicly-available filings and proceedings with the Court of Judicial Discipline.” Id. at 14, ¶ 51. Fears subsequently filed a number of amended petitions and miscellaneous documents purporting to supplement his initial submission, only one of which expanded upon his initial averments with regard to his due diligence.14 In his first amended petition, Fears suggested that the filing of the complaint on December 8, 2015, triggered the sixty-day clock for raising his claim because the “descriptions of the various emails . . . were introduced into the public” on that date. 1st Amend. PCRA Pet., 6/28/2018, at 17, ¶ 57. Although Fears noted that “[t]he emails themselves were introduced as Exhibit 1 at the December 21, 2015 proceeding in the Court of Judicial Discipline,” he conceded that the complaint “was the first publicly-available and reliable document” charging Justice Eakin with ethical violations and describing “in painstaking detail” the “racist, homophobic and otherwise inappropriate content” contained in the emails. Id. Fears also addressed his due diligence in slightly greater detail. He explained that, before “the substance of the emails” was made public with the filing of the complaint, he “could not have accessed the emails becausе they were on the Office of the Attorney General‘s computer servers and initially gathered as part of a confidential investigation.”
The Commonwealth did not challenge the timeliness of Fears’ petition. Perhaps in light of that concession, the PCRA court, without analysis, summarily concluded that the petition was “timely filed within the 60-day period following the discovery of the new facts.” PCRA Ct. Op., 10/2/2019, at unpaginated 5. Nevertheless, the court dismissed Fears’ petition, concluding that he did not satisfy the PCRA‘s substantive provision for relief based upon after-discovered evidence. Id. at unpaginated 5-8.
II. Analysis
Presently, Fears challenges the PCRA court‘s failure to permit discovery, to hold an evidentiary hearing, and to grant relief on the substantive claim based upon the presence of judicial bias in the disposition of his earlier appeal.
A. Timeliness
The OISA begins its review by sua sponte investigating the timeliness of Fears’ petition, concluding that the petition “fails to present a ‘fact’ that meets the jurisdictional requirements of our PCRA statute, and fails to set forth any information regarding the statute‘s due diligence requirement.” OISA at 12. I respectfully disagree with the OISA‘s timeliness analysis. Despite acknowledging that Fears is not required to “provide a nexus between the newly discovered fact and his conviction,” id. at 13, the OISA effectively imposes a heightened nexus requirement by engaging in a merits-based inquiry under the guise of a timeliness analysis. The OISA shows its hand by relying upon an apparent distinction between email senders and recipients posited by the Commonwealth in “a different portion [of its brief] than that addressing timeliness” in order to refute Fears’ satisfaction of the time-bar exception. See id. at 13-14. For support, the OISA identifies sources cited by Fears indicating that “Justice Eakin did not send any emails implicating the topics alleged by [Fears], and received only a few emails invoking the invidious subject matter.” Id. at 14. The OISA‘s focus is misplaced.
Setting aside for the mоment the question of whether a fact was unknown to the petitioner, Bennett requires a simple series of inquiries when presented with a PCRA petition invoking the newly-discovered fact exception: What is the fact? What is the claim? Is the claim predicated on the fact? Here, the answer to these questions is straightforward. The revelation of a trove of emails in the fall of 2015 indicating potential judicial bias on Justice Eakin‘s behalf against, inter alia, homosexuals, African-Americans, and victims of domestic and sexual violence, plus the claim that said bias violated Fears’ constitutional right to due process of law by tainting review of his previous appeal, equals a claim predicated upon a fact. For present purposes, then, the identities of the senders and recipients of particular emails, and whether those emails in fact betrayed biases that could have tainted prior proceedings, are irrelevant at this stage. Those are issues germane to the substantive merits-based claim, not to the timeliness inquiry. What mattеrs first is that, before October 2015, no one other than Justice Eakin and the network of individuals with whom he exchanged emails knew of the offensive subject matter being shared between Pennsylvania prosecutors and a member of the Commonwealth‘s highest court.
Contrary to the OISA‘s view, it is not the case that “the unsavory nature of Eakin‘s email account per se establishes” Fears’ underlying claim. Id. Rather, it is
That leaves one important question: Was the fact of Justice Eakin‘s “indecent inbox,” upon which Fears’ claim of judicial bias was predicated, unknown to Fears within sixty days of when he filed his petition? Fears asserted that it was, at least in the most general of terms. See PCRA Pet., 2/8/2016, at 13, ¶ 49. In previous appeals raising similar claims, members of this Court, including this author, concluded that the facts upon which claims of judicial bias against Justice Eakin were predicated were made public as early as October 8, 2015, when the Daily News published its detailed examination of Justice Eakin‘s email practices.15 That article, which subsequently was reprinted in other publications throughout the Commonwealth, expressly indicated that Justice Eakin‘s emails contained homophobic slurs, racist stereotypes about African-Americans, and commentary demeaning to victims of sexual abuse and domestic violence—the very prejudices that Fears alleges tainted review of his previous appeal. In fact, the Daily News article provided more specific details about emails denigrating the first of these groups than were later contained in the disciplinary complaint
At the time Fears filed his petition, this Court continued to recognize the so-called “public records presumption,” pursuant to which PCRA petitiоners were precluded from asserting that matters of public record were unknown to them when attempting to satisfy the newly-discovered facts exception.16 Although we narrowed the presumption‘s applicability in Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), by holding that it did not apply to ”pro se prisoner petitioners,” id. at 690-91, that decision would have afforded no benefit to Fears, who, by his own admission, has been represented by attorneys with the capital habeas unit of the Federal Public Defender‘s Office for the Western District of Pennsylvania since at least July 2014. See PCRA Pet., 2/8/2016, at 10, ¶ 40. Accordingly, Fears wisely focused upon the time that the facts giving rise to his claim entered the “public domain.” See 1st Amend. PCRA Pet., 6/28/2018, at 17, ¶ 57 (citing Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013)). As noted, that occurred on October 8, 2015, four months before Fears filed his petition, a fact that both the Commonwealth and the PCRA court misapprehended in conceding its timeliness.
Although the OISA disclaims reliance upon the public records presumption, OISA at 16 n.12, it implicitly resorts to that now-defunct presupposition when it invokes the “publicly available” nature of the information in order to probe purported deficiencies in Fears’ PCRA petition. See id. at 15-16. As with the unknown fact issue, the OISA identifies a рleading gap in Fears’ filings relating to his due diligence obligations that also turns upon the presumption. The PCRA requires petitioners who invoke the newly-discovered facts exception to allege and prove that “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.”
Unlike the OISA, I would not hold the public reporting of Justice Eakin‘s email practices against Fears without first ordering additional fact-finding pertaining to his knowledge and diligence (or lack thereof). Significantly, we abolished the public
It is solely within our power to ensure that the dead hand of a legal error propagated by this Court, once corrected, no longer burdens petitioners by strangling their otherwise viable claims from beyond the grave. See id. at 1284 (“[O]ur duty is not to streamline the process of denying potentially meritorious claims.“). The public records presumption was purely of extra-textual judicial provenance. We engrafted it onto the PCRA, notwithstanding the statute‘s plain language, “in a single footnote and with little accompanying analysis.” Id. at 1290 (Dougherty, J., concurring and dissenting) (citing Lark, 746 A.2d at 588 n.4). It applied exclusively in thе context of post-conviction collateral challenges. Even then, in its last gasps it affected only a narrow class of incarcerated defendants who invoked the specific time-bar exception at issue here based upon facts that came into the public domain while those defendants were represented by counsel. Given the constrained parameters within which the presumption operated, those petitioners whose cases were awaiting disposition when Small was decided ought to benefit from its abolishment.
In his petition, Fears pleaded that the fact of Justice Eakin‘s email practices was unknown to him and undiscoverable with the exercise of due diligence before the Judicial Conduct Board filed its complaint on December 8, 2015. That pleading could have been contested by the Commonwealth or probed by the PCRA court. It was not. Although the OISA is on firm ground in questioning the timeliness of a PCRA petition for the first time on appeal, see Commonwealth v. Reid, 235 A.3d 1124, 1143 (Pa. 2020), this Court should proceed cautiously before attempting to resolve fact-intensive issuеs left unaddressed by the PCRA court. Here, Fears has been afforded no opportunity to respond to the OISA‘s sua sponte inquest or to supplement the record regarding his knowledge and diligence, which were not challenged below. This Court has no inherent insight into the degree of public information available to a given prisoner, which may vary by prison, let alone one contending with the restrictions placed upon a capital defendant. Absent additional fact-finding, we have no way of determining whether, or how, Fears could have discovered the Daily News article or the reporting that followed.18 Questions about Fears’
B. Merits
Given my proposed disposition, I would not reach the merits of Fears’ underlying claim of judicial bias. However, because the OISA ventures to resolve that question against Fears, the deficiencies in its analysis warrant delineation. Despite the absence of a complete record, the OISA draws sweeping conclusions based upon the descriptions of a smattering of emails in the Judicial Conduct Board‘s possession. The OISA proclaims that “Justice Eakin‘s email account and the content contained therein does not render him a biased jurist“; that “[h]is participation in the inappropriate email activity had no bearing on his ability to fairly apply the law to the facts of [Fears‘] case“; and that “none of Justice Eakin‘s written opinions contained any bias, and certainly none that reached the levels of constitutional interference.” OISA at 22. With these bare threads, the OISA endeavors to weave a narrative that absolves Justice Eakin from any further examination of his questionable email practices. The errors of this approach readily are apparent.
As a threshold matter, the PCRA‘s after-discovered evidence rule is not the correct analytical framework to address allegations of an appellate jurist‘s bias. That provision entitles a petitioner to relief upon requisite proof that his “conviction or sentence resulted from . . . [t]he unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.”
Claims of judicial bias implicate Section 9543(a)(2)(i) of the PCRA, which concerns “violation[s] of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”
That said, the OISA nonetheless errs by attempting to view Fears’ claim through the lens of the unique circumstances at issue in Williams. That decision turned upon the participation of former Chief Justice Ronald D. Castille in this Court‘s review of Terrance Williams’ PCRA appeal. As the District Attorney of Philadelphia, former Chief Justice Castille hаd authorized his subordinates to pursue the death penalty at Williams’ murder trial. Thereafter, as a member of this Court, he declined to recuse himself from Williams’ appeals. Id. at 1903-05. Reasoning that “there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant‘s case,” the Supreme Court of the United States concluded that former Chief Justice Castille‘s recusal declination violated Williams’ rights under the Fourteenth Amendment‘s Due Process Clause. Id. at 1905. The Court further clarified that, for appellate jurists, “an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote.” Id. at 1909.
Williams thus offers a bright-line test for a unique category of due process claims: A judge may not sit in review of the convictions that he had a significant, personal role in securing as a prosecutor. To do so would constitute error per se and would necessitate a new appeal. Fears has never claimed that Justice Eakin had a significant, personal involvement in his case as a prosecutor. For that reason, his claim is not grounded in the rule announced in Williams. Although the Williams Court declared that the “‘absence of actual bias’ on the part of a judge” is a guarantee of due process, id. (quoting In re Murchison, 349 U.S. 133, 136 (1955)), the Court also reaffirmed the notion that the test for judicial bias in most other circumstances is an objective one. Faced with an allegation of bias such as the one Fears presents here, a reviewing court “asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, ‘the average judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.“‘” Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)). Viewed objectively, a judge whose conduct suggests an impermissible potential for bias for or against any party, whether due to pecuniary interests or other potential prejudices, must recuse from any case involving that party.
Following Williams, in Commonwealth v. Koehler, 229 A.3d 915 (Pa. 2020), we addressed whether “PCRA courts are vested with the authority to remedy appellate-level constitutional violations in the form of a new appeal to the appellate
Like Fears, Koehler filed a facially untimely, serial PCRA petition asserting a due process challenge arising from Justice Eakin‘s participation in Koehler‘s previous collateral appeal. “Koehler asked for the opportunity to prove his due process violation and, if he prevailed on the merits, to obtain reinstatement of his PCRA appellate rights nunc pro tunc.” Id. at 935. While we agreed with Koehler that the PCRA court mistakenly believed that it lacked the authority to grant the relief he requested, we declined to address his substantive claims in the absence of “the evidentiary and factual development that would be needed to substantiate a claim of appellate-level judicial bias.” Id. at 937. We explained:
This Court is not equipped to receive evidence, assess that evidence, or make credibility determinations. A claim of judicial bias may be supported, as it was in this instance, by requests for discovery, leave to amend the petition as the case develops, and requests for an evidentiary hearing to resolve disputed facts. We can expect that claims of judicial bias would require precisely the kind of factual development best suited to thе courts of common pleas. . . .
We are an appellate court. We require for our appellate review the development of a record as warranted and, where a hearing is appropriate, an assessment of the facts by the trial court hearing the evidence. . . .
The proper forum to consider the allegations and evidence of judicial bias is the PCRA court. Once factual and evidentiary development occurs in that forum as needed, and the PCRA court makes its rulings, the appellate court can review those rulings on appeal in due course.
Id. Those observations apply with equal force here.
The OISA suggests that we “would be hard pressed to find any connection between the inappropriate and offensive subject matter and Justice Eakin‘s execution of his responsibilities as a member of this Court.” OISA at 19. I disagree. Even a cursory review of the OISA‘s conclusions based upon the limited record before us confirms the need for additional fact-finding before the allegations lodged against Justice Eakin can be resolved one way or another.
Pertinently, the OISA relies upon a finding of the Court of Judicial Discipline that “there was no evidence that Justice Eakin ‘in his written judicial opinions, ever demonstrated any overt bias due to the race, gender, ethnicity, or sexual orientation of a litigant or witness.‘” Id. at 18 (quoting Eakin, 150 A.3d at 1048). The CJD‘s conclusion that the evidence it reviewed demonstrated no overt bias on Justice Eakin‘s part is of no moment. A sophisticated jurist (or even an unsophisticated one) who harbors prejudices against a particular group or individual is unlikely to air his animus openly, whether in legal opinions or via email, no matter how private or secure. That is why it is well-settled that proof of a judge‘s actual bias is just one
Furthermore, the CJD specifically found that the Judicial Conduct Board failed to produce evidence of overt bias. The only evidence of record reproduced in the appendices attached to the CJD‘s opinion was the descriptions of emails copied verbatim from the summary of the emails contained in the Board‘s complaint. But the Board‘s survey significantly was circumscribed. For instance, the Board limited its review to those emails that were in the possession of the Attorney General‘s Office between 2008 and 2014. Accord Robinson, 204 A.3d at 345 (OISR) (“The only emails sent or received by Eakin that have been disclosed to date are those that were housed on the OAG‘s server.“). It also stipulated that it examined 943 emails sent or received by Justice Eakin despite Attorney General Kane‘s public pronouncement that more than 1,500 emails had been turned over for review.20 Even then, only eighteen of the 157 emails that originated from Justice Eakin‘s account were described in the Board‘s complаint, amounting to approximately 11.5% of the total number of emails that he sent. Likewise, the complaint summarized just seventy-nine of the 786 emails received by the justice—barely 10%. See Compl. at 31, ¶ 80(a) (noting that the emails received by Justice Eakin “contain material including, but not limited to, the following“) (emphasis added). While it is true that the “overwhelming majority” of emails turned over by the Attorney General‘s Office to the Judicial Conduct Board “were sent by others,” OISA at 18, it is difficult to accept general characterizations of the emails’ contents when so few actually were summarized or entered into evidence. Yet the CJD simply relied upon the Board‘s stipulated summary of the limited sample in rendering its judgment. Fears’ efforts to prove his unique claim of judicial bias, through targeted discovery if necessary, should not be prejudiced by the CJD‘s reliance upon the Board‘s condensed review or the stipulation agreed to by Justice Eakin in lieu of a trial—negotiations to which Fears was not a party. Moreover, Justice Eakin‘s interest in agreeing to the Board‘s curated stipulation rather than having the totality of his emails entered into the public record could not be more apparent. As noted, a number of emails, at least one of which contained homophobic stereotypes, were identified in the Daily News article but did not appear to be described in the Board‘s complaint. With almost 90% of the total number of emails excluded by choice from the CJD‘s review, it is not farfetched to think that similar content so far has escaped public accounting. And it certainly is not so implausible that it justifies precluding Fears forever from examining the entirety of the collection of emails.21
In sum, Fears’ claim of bias could be satisfied in at least two ways. The first turns on whеther the sheer volume and content of emails sent or received by Justice Eakin reflect an objective risk of bias against homosexuals, African-Americans, or victims of abuse, the groups with which Fears identifies. That approach would require a full accounting of the trove of emails in the Board‘s possession. The second would depend upon whether Justice Eakin exchanged similar communications with Allegheny County prosecutors that might indicate a bias in favor of that office in criminal matters in light of the reputational harms that could result from the public release of those messages. Additional disclosures and rigorous fact-finding by the PCRA court is necessary for a merits review of those claims. Cf. Koehler, 229 A.3d at 937. Where, as here, glaring evidence of suspect email practices already has been thrust into the public sphere, a third party‘s limited evaluation of that evidence will not suffice to satisfy the demands of discovery on collateral review. Because neither Fears nor this Court is privy to the full breadth of the emails at issue, we cannot fairly conduct a merits review of his claims on this record. For these reasons, I would remand for further proceedings consistent with this opinion.
Justice Donohue joins this Opinion in Support of Reversal.