The Pennsylvania Supreme Court on Tuesday split 3-3 on whether Philadelphia Common Pleas Court Judge Genece Brinkley should remain on Philadelphia rapper Meek Mill's gun-and-drug case, leaving Brinkley to preside over his post-conviction appeal. She is scheduled to hear an evidentiary hearing in the case Monday.
In their order, the justices wrote that with "the court being equally divided," Mill's attorneys' emergency petition to remove Brinkley was denied.
In a telephone interview after the ruling, Mill, 31, said his decade-old case is highly unusual because prosecutors and his attorneys agree that he should get a new trial.
In 2,000 cases involving Philadelphia police scandals in recent years, when both the defense and prosecution agreed to a new trial or to seek the dismissal of charges, judges have expeditiously granted the requests.
"I just want to be treated the same," Mill said. "I still don't feel free."
But Brinkley has required that despite the agreement by the two sides, the evidentiary hearing must take place Monday.
In Tuesday's order, Chief Justice Thomas G. Saylor, Justice Sallie Updyke Mundy, and Justice David N. Wecht denied the change of judge sought by Mill, who was born in Philadelphia as Robert Rihmeek Williams. Wecht, in the order, noted that Mill could renew his request for a different judge after Monday's hearing.
Justice Kevin M. Dougherty did not participate in the matter.
Justice Max Baer wrote a dissenting statement, saying he would grant the request of Mill's attorneys to have Common Pleas Court President Judge Sheila Woods-Skipper preside over Mill's case. "I believe Judge Genece Brinkley should have disqualified herself … as her continued involvement has created an appearance of impropriety that tends to undermine public confidence in the judiciary," Baer wrote.
Justices Debra Todd and Christine Donohue joined the dissenting statement.
Joe Tacopina, a New York lawyer representing Mill, said in an email Tuesday that "we remain hopeful that the overwhelming amount of evidence in this case – and the Philadelphia District Attorney's backing of Meek's PCRA [Post Conviction Relief Act] filing – will prompt Judge Brinkley to grant Meek a new trial, failing which we will promptly pursue all appellate remedies available to Meek in order to right this terrible injustice."
Brian McMonagle, a Philadelphia lawyer representing Mill, did not immediately respond to a request for comment.
The latest battles between Brinkley and Mill's lawyers and backers began Nov. 6, when the judge found that Mill again had violated his probation stemming from a 2007 drug-and-gun arrest after he tested positive for opiate use and incurred two new arrests last year. He had been charged with assaulting an employee at a St. Louis airport and with reckless endangerment for riding a dirt bike on New York City streets. Brinkley ordered Mill taken into custody to serve a two-to-four-year state prison sentence.
During his time behind bars, Mill became a cause célèbre, with supporters seeking his release and pushing for a new judge to preside over his case. But Brinkley, in a March 29 opinion, wrote that she would not recuse herself from his case, contending that defense allegations about her lacked merit, and saying that she had "committed no error."
The state Supreme Court on April 24 granted Mill "extraordinary relief" — securing his release from prison that day — because the Philadelphia District Attorney's Office had agreed that he should obtain a new trial and did not oppose Mill's release on bail. Mill departed a state prison in Chester around 6:30 p.m., quickly getting into a helicopter and heading to a 76ers playoff game with team co-owner Michael Rubin.
Although Mill's attorneys continued to seek Brinkley's ouster, at a hearing May 30, Common Pleas Court Judge Leon W. Tucker denied the request, saying he lacked the jurisdiction to remove from the case a fellow judge who sits on the same bench. Tucker, the supervising judge of the court's criminal division, said that Brinkley could be disqualified only by the state Supreme Court.
At Monday's scheduled hearing, the rapper's attorneys are expected to argue that Mill should get a new trial. They contend that he was framed by former Philadelphia Police Officer Reginald Graham, who had arrested him and who testified against him at his 2008 nonjury trial before Brinkley.
Graham — who retired from the force last year and has not been charged with a crime — was identified in February by the Inquirer and Daily News as one of two dozen officers on a secret list compiled by the District Attorney's Office of cops whom the office would not call to testify. He was accused of stealing drug bust money, lying to the FBI about it, and failing an FBI polygraph test.
Brinkley, in her March 29 opinion, wrote that at the Nov. 6 hearing Mill "admitted that he was a gun-carrying drug dealer." She also noted that Mill had said at the November hearing: " 'Even when two officers came in here and said that I pointed a firearm at them, your judgment was, you found me guilty of pointing a firearm at these two officers, which you should.' "
Mill's lawyers have said the statement was taken out of context. They said the two officers were lying about the firearm and presented statements from two other officers saying Mill was not pointing a gun at the officers.
In April, Woods-Skipper threw out the convictions of three other defendants who had been arrested by Graham, saying the former narcotics officer had "credibility issues." She also set a June 29 hearing date for 103 pending petitions for new trials for other suspects whom Graham arrested between 2002 to 2014.
Tacopina's statement Tuesday also contended that Mill's case — like the others involving Graham — "should be heard by the same judge, in this case Judge Woods-Skipper, so that he is treated the same as all similarly situated defendants."