In October 2012, the Commonwealth of Pennsylvania came close to executing Terry Williams, a man who killed two men, both of whom sexually abused Terry while he was in his teens.
The case has received abundant, thoughtful coverage, including from our colleagues at the excellent Atlantic Center for Capital Representation, and by Donald Gillibrand, who wrote about the case for the Harrisburg Patriot-News.
The execution of Terry Williams was stopped by Judge Teresa Sarmina of the Court of Common Pleas. The Commonwealth has appealed, and the case is currently with the Pennsylvania Supreme Court.
In her 185-page opinion which vacated Mr. Williams’ death sentence and granted him a new sentencing hearing, Judge Sarmina included a 15-page appendix dedicated exclusively to the “gamesmanship” (p.2 ) of Assistant District Attorney Andrea Foulkes during Mr. Williams’ capital trial.
Download the opinion here: The appendix starts on page 53 of the PDF.
Judge Sarmina’s opinion details a number of violations of Mr. Williams’ rights during Ms. Foulkes’ prosecution, and it even goes so far as to discuss her possible motive for withholding evidence.
Terry Williams had two separate murder trials for the two men he killed, both of whom began predatory sexual relationships with Terry while he was in his young teens. Mr. Williams committed the murders when he was 17 and 18-years old. Ms. Foulkes prosecuted both cases. In the first case, involving a victim named Mr. Hamilton, the jury returned a verdict of third- rather than first-degree murder. That jury knew about the sexual relationship between Mr. Williams and his victim.
However, in the second trial, involving a victim named Mr. Norwood, the jury never knew anything about the sexual relationship between Terry Williams and his victim. They returned a death sentence.
The second jury, and Mr. Williams’ new counsel, never knew about the sexual relationship with the victim because the prosecutor did not disclose materials in her possession despite her constitutional obligation to do so.
Despite Ms. Foulkes’ testimony in Judge Sarmina’s court that she had “not a scintilla of evidence that Mr. Williams had actually had any sexual relationship with Mr. Norwood,” (p.5), telling the court that all witnesses asked about Mr. Norwood’s homosexual tendencies “all said no. “(p.5). Ms Foulkes also stated that she had “no information from Reverend Poindexter (a Reverend at the same church where Mr. Norwood worked and allegedly pursued sexual relationships with teen boys) at the time there was anything untoward at the church.” (p.5)
Judge Sarmina found that these claims were “absolutely contrary to the evidence which Ms. Foulkes had in hand.” (p.5) This evidence included notes in Ms. Foulkes’ handwriting which indicate that she interviewed the mother of a teenage boy about his alleged encounter with Mr. Norwood. Other notes in Ms. Foulkes’ handwriting reveal that that the Reverend Poindexter did tell a policeman about concerns from parishoners about Mr. Norwood’s behavior.
When Ms. Foulkes was called to testify in Judge Sarmina’s court, she testified that, while she was prosecuting the second Terry Williams case, “I didn’t care what the verdict was as long as the jury considered all the evidence.” (p. 3). Judge Sarmina writes,
“However, this court did not find that testimony credible. This Court found that the third degree verdict in the Hamilton case colored the Ms. Foulkes’ decisions when she prosecuted appellee for the murder of Amos Norwood. First, Ms. Foulkes identified what she believed to be the reason that the jury returned a “compromised” verdict. And then she attempted to eliminate evidence which caused the “compromised” verdict from being presented to the jury.” (p. 3)
Judge Sarmina writes, of Ms. Foulkes, “she did have a duty to provide the defense with that evidence, because it was exculpatory and ‘material.’” (p. 7) In a later passage, she writes, “this Court is disheartened to say that her actions leading up to and during the Norwood trial demonstrate that she only wanted the jury to see the evidence over which she exerted control.” (p. 13)
Continuing, “This Court concluded that intentionally rooting that evidence out of the Norwood case in order to secure a death sentence amounted to ‘gamesmanship’.” Indeed, the word “gamesmanship” appears in the appendix to Judge Sarmina’s opinion six times to describe Ms. Foulkes’ actions.
Ms. Foulkes continues to work as a prosecutor, in her job as a U.S. attorney for the Eastern District of Pennsylvania with the Department of Justice. Perhaps after reading Judge Sarmina’s opinion, which questions the veracity of her recent testimony in this case, the D.O.J. will take disciplinary action against Ms. Foulkes, although they appear to be standing by her.