U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog

3rd Cir. Overturns Murder Conviction, in Part Due to Charlton Heston

Charlton Heston, the late Hollywood actor and conservative activist, played an unusual role in overturning Paul McKernan's 1998 conviction for the murder of his roommate. McKernan's bench trial was held before Judge Lisa Richette. The trial went a bit awry after Judge Richette discovered a blog post criticizing her as a "bleeding heart judge" and quoting Charlton Heston's characterization of her as "Let 'em Loose Lisa."

That blog post caused Judge Richette to lose her impartiality, McKernan argued, and his counsel should have demanded her recusal. The Third Circuit agreed, finding that McKernan had received ineffective assistance of counsel.

Pry This Conviction From My Cold, Dead Hands

The ruling is the latest development in what Reuters describes as a "decades-old feud" between the judge and Heston, a feud that seems to have outlived both its main parties. (Heston died in 2008. Judge Richette passed away a year earlier.)

McKernan was accused of killing his roommate, Mark Gibson, by striking him in the head with a baseball bat. During McKernan's trial, Judge Richette stumbled across a blog post written by Gibson's family. The post described Judge Richette's "ongoing controversy" with Heston, and her reputation as a liberal jurist.

Then things got weird.

Not Your Usual In-Chambers Conference

On the second day of the trial, Judge Richette called the attorneys and the victim's mother and brother into her chambers.

During the meeting, Judge Richette described the blog's criticism as "vicious and unfair." She said she "did not want to hear this case" if the family was "unhappy with" her. He read from a printout of the website. She accused the family of writing "dreadful, slanderous things" about her.

Then she told the family that she "just want[ed] to make sure that you folks are happy with me" and said they were "very fortunate" for having a witness.

Finally, she concluded: "I don't want to open the Daily News tomorrow and read the usual B.S."

A Loss of Impartiality and No Action From the Attorney

"It is difficult to convey in excerpts the inappropriate nature of this lengthy conference," the Third Circuit wrote. "It is even more difficult to understand why defense counsel" did not object or move for recusal.

As the Third Circuit notes, McKernan's attorney "stood mute" during the whole conference. At one point he left, allowing the judge to speak directly to the victim's family while he conferred with his client. During that time, Judge Richette went over the objectionable sections of the website with the Gibson's brother.

The Third Circuit agreed with McKernan that his attorney was ineffective in failing to object or demand recusal. McKernan had shown, as required by Strickland v. Washington, that his lawyer performed "below an objective standard of reasonableness considering all the circumstances," and that such deficiency was serious enough to deny him his Sixth Amendment right to counsel.

"Judge Richette's actions would have caused any competent attorney to seek recusal immediately," the court concluded.

Pennsylvania now has 60 days to determine whether to retry McKernan.

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