J. Michael Eakin

A defendant in a capital case will not get the chance to pursue his Post-Conviction Relief Act claims that offensive emails sent and received by former Pennsylvania Supreme Court Justice J. Michael Eakin, who rejected his original PCRA appeal, demonstrated bias and that the Cumberland County District Attorney’s Office should be disqualified from the case.

On Dec. 14, a four-justice Supreme Court evenly split in Commonwealth v. Robinson, leaving in place a PCRA court’s dismissal, on timeliness grounds, of defendant Antyane Robinson’s petition, which alleged that newly discovered facts entitled him to reinstatement of his appellate rights from his first PCRA petition. Chief Justice Thomas Saylor and Justices Max Baer and Debra Todd, all contemporaries of Eakin on the high court, recused from the matter.

While Justices Christine Donohue and David Wecht voted in favor of allowing Robinson to move forward with his petition and disqualifying the Cumberland County District Attorney’s Office from the case, Justices Kevin Dougherty and Sallie Updyke Mundy agreed with the lower court that the petition was time-barred.

Eakin had authored the Supreme Court’s majority opinion dismissing Robinson’s original PCRA appeal. But after Eakin’s involvement in the so-called Porngate scandal became public, Robinson filed a new PCRA petition arguing that Eakin’s sending and receiving of racially insensitive and otherwise offensive emails demonstrated bias, as did his close friendship with Merle L. Ebert Jr., who prosecuted Robinson’s case in the late 1990s. Eakin and Ebert, who was the elected Cumberland County district attorney at the time he handled Robinson’s case, were both recipients of at least one email blast tied to Porngate and Ebert voiced his support for Eakin during the fallout from the scandal, which ultimately resulted in Eakin retiring from the bench.

However, the PCRA court said Robinson’s petition was time-barred because it needed to be filed within 60 days of the first occasion on which he had a basis to make the claim. According to the PCRA court, Eakin was tied to the email scandal in October 2014 or possibly even earlier and Robinson’s petition was not filed until November 2015.

But in the opinion in support of reversal, Donohue, joined by Wecht, said the extent of Eakin’s involvement could not have been known to Robinson until Oct. 8, 2015.

“Based on the information publicly available in 2014, we conclude that Robinson did not have a basis to allege that Eakin was biased in order to bring his due process claim at that time,” Donohue said. “As is evident from the investigations undertaken by this court and the [state Judicial Conduct Board], both of which requested all email communications (sent and received) between Eakin and members of the [Pennsylvania Office of Attorney General], no amount of diligence could have uncovered the facts upon which Robinson’s claim is predicated, i.e., that Eakin sent and received offensive emails. That all changed, however, in 2015, when news outlets revealed additional offensive emails that Eakin had not only received from various sources, but also had sent, in contradiction to his 2014 claim that he had never opened or welcomed these emails.”

Finding that Robinson should be allowed to pursue his PCRA claim in light of this newly discovered evidence, Donohue and Wecht also said the Cumberland County District Attorney’s Office should be disqualified from the case and should have to hand it over to the state Attorney General’s Office.

“The record establishes, and Ebert admits, that Eakin is a close, personal friend,” Donohue said. “Ebert and other members of his office have been vocal in their support of Eakin.”

Donohue added, “Moreover, Ebert and other members of the DA’s office have received some of the emails that form the basis of Robinson’s claim of Eakin’s bias. It would seem incongruous for the DA to acknowledge that the emails are offensive and bigoted when he and members of his staff also received them, apparently without objection.”

“Based on the record before us, Ebert and other members of his staff have several ‘subjective reasons,’ outside of their ‘public purpose,’ to advocate against granting Robinson PCRA relief,” Donohue said.

But Dougherty, in his opinion in support of affirmance, said he supported dismissal of Robinson’s petition because there was “an insufficient nexus between the published reports [of Eakin's emails] and the alleged constitutional violation.”

“In my view, the emails are simply not facts upon which the belated claim of a due process violation can be predicated,” Dougherty said.

In a separate opinion in support of affirmance, Mundy, like Dougherty, agreed with the argument in the prosecution’s brief that “Robinson’s assertions of judicial bias do not relate to his case as ‘the referenced email traffic relates to a time period beginning over a decade after appellant’s trial and several years after his 2005 initial PCRA case concluded; appellant’s case is not referenced in the emails; and the content does not reflect any invidious discrimination or bias in any court case.’”

Counsel for Robinson, Enid Wolfe Harris of Kingston, said of the high court’s even split, “We got close.”

A message left with the Cumberland County District Attorney’s Office for prosecutors Charles Volkert Jr. and Matthew Smith, who are currently handling the case, was not immediately returned.

(Copies of the 59-page opinion in Commonwealth v. Robinson, PICS No. 18-1579, are available at http://at.law.com/PICS.)