State of Delaware v. Wright.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )
)
Plaintiff, )
)
v. ) ID No. 91004136DI
)
JERMAINE WRIGHT, )
)
Defendant. )

OPINION ON
MOTION FOR RECUSAL

JOHN A. PARKINS, JR., JUDGE

Steven P. Wood (argued), Gregory E. Smith (argued), Esquire, Maria T.
Knoll, Esquire, Esquire and John S. Taylor, Esquire, Department of
Justice, Wilmington, Delaware – Attorneys for The State.

Eugene Maurer and Allison S. Mielke (argued), Wilmington, Delaware,
and Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington,
Delaware – Attorneys for Defendant.
 The State has filed a motion asking me to recuse myself 1 which

Defendant Wright opposes. The State’s motion primarily rests on two

arguments. First, it points to my 2 statements (made in the context of

judicial proceedings) that I had little or no confidence in the verdict in

this case. Its argument overlooks entirely two fundamental principles

enunciated by the Delaware Supreme Court concerning judicial recusal.

Further the State overlooks that the Delaware Supreme Court has agreed

with my conclusions which, according to the State, require my recusal.

Second, the State contends that I should recuse myself because several

years ago I had a professional relationship and friendship with a

Wilmington police detective (not involved in the investigation of the

instant crime) who will likely testify at Defendant’s second trial. I made a

full and prompt disclosure of that relationship and both sides expressly
1 It is unclear from the State’s written motion whether it is addressed to me or some
other unidentified judge. In its opening paragraph, for example, the State “prays that
this Honorable Court issue an Order recusing the Hon. John E. [sic.] Parkins, Jr. from
all further proceedings in this matter.” The same phrase is repeated in the conclusion
to the State’s motion. At oral argument the State confirmed, however, that it intended
that the motion be addressed to me. This is consistent with the Delaware Supreme
Court’s rulings that a motion for recusal should be addressed in the first instance by
the judge who is the subject of the motion. E.g., In re McLeod, 99 A.3d 227 (Del. 2014)
(TABLE); In re Webb, 23 A.3d 866 (Del. 2011) (TABLE).
2 Throughout my judicial career I have always written my opinions in the third person

in the hope that, at least superficially, the use of third person might reinforce the idea
that the judge is writing for an institution and not expressing personal views. In this
matter I have chosen to depart from that practice because I am the focus of this opinion
and it seems strained to refer to my comments in this case as if they were made by
someone else. I am not so vain as to think anyone has ever noticed, or even cared, that
my opinions are written in third-person. I mention my use of first person here only out
of caution lest it be misconstrued as an indication that I take the request for recusal
personally. I note in passing that the use of third person in recusal opinions can
sometimes yield an odd sort of reverse-anthropomorphism. Take, for example, a judge
from the mid-west whose use of the third person constrained her to write: “the
possibility that the Court's husband and son may have formed an opinion with respect
to the reputation of a given defendant or any other matter implicated by this litigation
does not give this Court pause . . . to doubt her own impartiality.” Williams v. Balcor
Pension Investors, 1990 WL 205805, *7 (N.D.Ill. Nov. 28, 1990).

2
consented to my presiding over this case. Years later, after I granted

Wright relief, the State has had second thoughts. Even though no new

facts have arisen since its waiver, it has reversed course and now asks

me to now recuse myself. Its request is barred by its waiver. But, even

putting the State’s waiver aside, its argument is without merit for

reasons the State has apparently overlooked. In this regard I note that

the State has been unable to cite a single case in which a judge has

recused himself under circumstances similar to those presented here.

Background

In 2012 I wrote that “[i]t would be an understatement to say that

this case has a long and convoluted history.” 3 The case has become even

more procedurally complex in the comparatively short time since then,

and it is necessary to have an understanding of some of this recent

history in order to understand the State’s contentions. I will therefore

briefly summarize the pertinent procedural events, beginning with my

2012 opinion.

• In January 2012 I issued an opinion in which I granted

Wright relief under Superior Court Rule 61. (That opinion

will be referred to as Wright-2012.) 4 In that opinion I denied

most of Wright’s claims for relief. However, I granted Wright

a new trial because but I found that his confession was

3 State v. Wright, 2012 WL 1400932, at *10 (Del. Super. Jan. 3, 2012).
4 Wright, 2012 WL 1400932, at *47.

3
 obtained in violation of Miranda v. Arizona 5 and because

exculpatory evidence had been withheld from him in

violation of Brady v. Maryland. 6

• After issuing Wright-2012, I concluded that Wright was

entitled to a new proof positive hearing. I conducted that

hearing and I found that the State had not shown the

required “proof positive and presumption great.”

Consequently I set bail for Wright at $200,000 cash. Wright

was unable to make bail.

• The State appealed my Wright-2012 decision as well as my

decision that Wright was entitled to a new proof positive

hearing and bail. During that appeal the Supreme Court

twice remanded the matter to me for additional findings,

none of which are germane to the issue now before me.

• The Supreme Court reversed Wright-2012 as well as my

finding that Wright was entitled to a new proof positive

hearing and bail. (This Supreme Court opinion will be

referred to as Wright-2013.) 7 The Supreme Court reinstated

Wright’s conviction and remanded to me for resentencing.

5 384 U.S. 436 (1966).
6 373 U.S. 83 (1963).
7 State v. Wright, 67 A.3d 319, 319 (Del. 2013).

4
 • Upon remand, I re-sentenced Wright to death, whereupon

Wright appealed. In his appeal Wright challenged the rulings

I made denying his other claims.

• The Supreme Court again reversed and this time vacated

Wright’s conviction and death sentence. It found that Wright

was entitled to a new trial because, when additional withheld

evidence was considered, Wright made out a Brady claim.

(This Supreme Court opinion will be referred to as Wright-

2014.) 8

• The case has been remanded to me for the new trial, and the

State has filed this motion asking me to recuse myself. This

is my opinion.

Analysis

I. The standard to be applied.

Ground zero of any recusal analysis 9 is Rule 2.11 10 of the

Delaware Judges’ Code of Judicial Conduct. This section specifies, in

non-exclusive terms, circumstances requiring a judge to recuse

himself. 11 The State agrees that none of those specific circumstances

8 Wright v. State, 91 A.3d 972, 995 (Del. 2014).
9 Reeder v. Del. Dep’t of Ins., 2006 WL 510067, at *16 (Del. Ch. Feb. 24, 2006)(”The
touchstone for evaluating whether a judge should disqualify himself or herself is the
Delaware Judges' Code of Judicial Conduct.”)
10 In its motion the State mistakenly cited and quoted at length former Rule 3(c)(1),
which was modified and re-codified several years ago. At oral argument the State
conceded that Rule 2.11—not the out-dated Rule quoted in its motion--applies here.
11 Despite the length of the Rule, its importance justifies setting it out in full:

5
(A) A judge should disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned, including but not limited to
instances where:

(1) The judge has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) The judge or the judge's spouse or domestic partner, or a person within
the third degree of relationship, calculated according to the civil law system,
to either of them, or the spouse or domestic partner of such a person:

(a) is a party to the proceeding, or an officer, director, or trustee of a
party;

(b) is acting as a lawyer in the proceeding;

(c) is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding;

(d) is to the judge's knowledge likely to be a material witness in the
proceedings.

(3) The judge knows that, individually or as a fiduciary, the judge or the
judge's spouse or domestic partner or minor child residing in the judge's
household has an economic interest in the subject matter in controversy or
in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;

(4) The judge
(a) served as a lawyer in the matter in controversy, or a lawyer with
whom the judge previously practiced law served during such
association as a lawyer concerning the matter, or the judge or such
lawyer has been a material witness concerning it, or the judge was
associated in the practice of law within the preceding year with a law
firm or lawyer acting as counsel in the proceeding;

(b) served in governmental employment and in such capacity
participated as counsel, advisor, or material witness concerning the
proceeding or has expressed an opinion concerning the merits of the
particular case in controversy

(B) A judge should keep informed about the judge's personal and fiduciary
economic interests, and make a reasonable effort to keep informed about the
personal economic interests of the judge's spouse or domestic partner and minor
children residing in the judge's household.

(C) A judge disqualified by the terms of Rule 2.11, except a disqualification by
the terms of Rule 2.11(A)(1) or Rule 2.11(A)(4), may, instead of withdrawing from
the proceeding, disclose on the record the basis of the judge's disqualification. If
the parties and their lawyers, after such disclosure and an opportunity to confer
outside of the presence of the judge, all agree in writing or on the record that the
judge should not be disqualified, and the judge is then willing to participate, the
judge may participate in the proceeding. The agreement shall be incorporated in
the record of the proceeding.

6
apply here. 12 Instead it argues that a general catchall provision in Rule

2.11--a “judge should disqualify himself or herself in a proceeding in

which the judge's impartiality might reasonably be questioned, including

but not limited to instances where . . . [the] judge has a personal bias or

prejudice concerning a party”—requires my recusal.

Application of this catchall standard requires a two part-analysis:

First, I must make a subjective determination whether I am biased; and

second, if not, I must make an objective determination whether there is

an appearance of bias which might reasonably raise questions about my

impartiality. The proverbial seminal case here is the Delaware Supreme

Court’s opinion in Los v. Los. 13 In that case, a Family Court judge denied

a husband’s request for recusal, which the husband appealed to the

Supreme Court. 14 On appeal the Supreme Court set out the procedure

for trial judge’s to follow when faced with a motion for recusal:

When faced with a claim of personal bias or
prejudice under [Rule 2.11] the judge is required
to engage in a two-part analysis. First, he must,
as a matter of subjective belief, be satisfied that
he can proceed to hear the cause free of bias or
prejudice concerning that party. Second, even if
the judge believes that he has no bias, situations
may arise where, actual bias aside, there is the
appearance of bias sufficient to cause doubt as
to the judge's impartiality. 15

12 Tr. at 30-31.
13 595 A.2d 381 (Del.1991).
14 The appeal was taken after entry of a final judgment by the Family Court. Id. at 383

n.2.
15 Id. at 385.

7
Since that opinion, the courts of this state have consistently applied

what has become known as the Los test. I will first discuss the

subjective test required by Los, and then I will present the objective

analysis Los requires.

A. The subjective test.

The first part of the Los test—whether I am satisfied I can hear the

case free from bias—is subjective. 16 “First the judge must be satisfied as

a subjective matter that the judge can proceed to hear the case without

bias.” 17 Because of its subjective nature, I need not cite any evidence in

support of my conclusion, and “[o]n appeal of the judge’s recusal

decision, the reviewing court must be satisfied that the trial judge

engaged in the subjective test and will review the merits of the objective

test.” 18

In general, a trial judge satisfies the first prong of the Los test if he

makes that determination on the record, 19 and I do so now. I am

convinced that I am, have been and will continue to be impartial in these

proceedings. I have therefore concluded that the subjective test in Los

does not require me to recuse myself. The terse nature of this conclusion

should not be taken as an indication that I have given this aspect of the

Los test short shrift. As any judge would do under these circumstances,

16 Gattis v. State, 955 A.2d 1276, 1285 (Del. 2008) (“The first step requires the judge to

be subjectively satisfied that she can proceed to hear the cause free of bias or prejudice
concerning that party.”).
17 Dickens v. State, 49 A.3d 1192 (Del. 2012)(TABLE).
18 Los, 595 A.2d at 385.
19 Fritzinger v. State, 10 A.3d 603, 611 (Del. 2010) (“The judge must make both

determinations on the record.”).

8
I have devoted considerable introspection to the issue. My reflection

confirms my belief that at no time during this litigation have I been

biased against the State. Indeed (although I need not cite any supporting

evidence) I note the salient fact that I decided most of Wright’s claims

against him, which is hardly consistent with the State’s notion that I am

biased against it. 20

B. The objective test.

1. The standard for the objective test.

The objective test requires me to determine whether an informed

objective observer, after considering all the facts and circumstances of

the case, would conclude that a fair and impartial hearing was unlikely.

In Fritzinger v. State the Delaware Supreme Court stated the rule this

way:

[W]e must assess whether an objective observer
would view all the circumstances and conclude
that a fair or impartial hearing was unlikely.
That requires us to assess the circumstances
objectively to determine whether there is an
appearance of bias sufficient to cause doubt
about judicial impartiality. 21

20 The State contends that a statement I made when I disclosed my friendship with
Captain Browne “is, in effect, a ruling that the first or ‘subjective’ prong of the Los
recusal [sic] precludes his participation in the matter.” State’s Mot. for Recusal, ¶ 17.
This is not correct. In that disclosure I stated I could not be objective if I were called
upon to make judgments about his credibility. Up until this point Captain Browne’s
credibility has never been put in issue in this case, and given his role in this matter, it
is highly unlikely to become an issue in the future. Consequently, my statement that I
could not fairly judge Captain Browne’s credibility is not the equivalent of a subjective
determination that I am biased.
21 10 A.3d at 613 (footnotes omitted).

9
 The hypothetical “objective observer” is one who is fully informed

about the facts and circumstances of the case. 22 The Second Circuit

Court of Appeals described the objective observer as “reasonable person

[who] knows and understands all the relevant facts.” 23 This view follows

the approach taken by Judge Richard Posner of the Seventh Circuit, who

described the test as:

The test for an appearance of partiality is . . .
whether an objective, disinterested observer fully
informed of the facts underlying the grounds on
which recusal was sought would entertain a
significant doubt that justice would be done in
the case. 24

Similarly, in a memorandum opinion declining to recuse himself Chief

Justice Rehnquist wrote “[t]his inquiry is an objective one, made from the

perspective of a reasonable observer who is informed of all the

surrounding facts and circumstances.” 25 Four years after the Chief

Justice’s opinion, Justice Scalia labeled this principle “well

established.” 26

22 The State’s motion did not address the standard to be applied when constructing
the hypothetical observer. When asked about this standard at oral argument, the State
responded the issue had not been addresses by the courts. Tr. at 3. To the contrary,
scores of courts, including courts of this state, have applied the “informed observer”
standard. Just a few of those cases are referenced in the text. Indeed, the court’s
research did not reveal a single case in which a court disavowed the “informed observer”
standard. In any event, even though it had not researched the matter, the State
conceded that the standard should be an “informed” observer.
23 In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988) (emphasis
added).
24 Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985).
25 Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000) (mem., Rehnquist,
C.J.).
26 Cheney v. United States. Dist. Court for D.C., 541 U.S. 913, 923 (2004)(mem., Scalia,
J.).

10
 The State urges that, when applying the informed observer

standard, I should not dissect the appearance issues like a judge, but I

should instead consider them as would a man on the street. To the

extent that the State is asking me to turn a blind eye to the contents of

the record and the legal principles giving rise to my earlier rulings, I

cannot do so.

Like all legal issues, judges determine appearance of
impropriety-not by considering what a straw poll of the only
partly informed man-in-the-street would show-but by
examining the record facts and the law, and then deciding
whether a reasonable person knowing and understanding all
the relevant facts would recuse the judge. 27

2. The State’s substantive contentions.

The State advances two arguments why an objective observer

would conclude that I am biased. It primarily relies upon my statements

in my opinion and from the bench that I lack confidence in the verdict.28

Secondly, it relies upon my professional relationship and friendship with

Captain William Browne of the Wilmington Police Department. Also

sprinkled throughout its motion are perfunctory legal contentions which

are not expressly tied to either of the State’s major themes. I will address

some of these in connection with the State’s primary arguments insofar

as I can tell they are related to either of those themes.

27 In re Drexel Burhnam Lambert Inc., 861 F.2d at 1314.
28 At oral argument the State labeled this argument as “being of much greater
significance” than its argument about my friendship and former professional
relationship with a witness. Tr. at 31.

11
 Before considering principle contentions expressed in the State’s

motion, however, I will address an implied argument which permeates its

motion: I was so anxious to grant Wright relief that I ostensibly invented

a theory for him and granted him relief on the basis of an argument he

did not make.

a. I did not invent an argument for Wright.

As noted previously, I found that Wright’s confession was taken in

violation of Miranda. In particular, I found that the interrogating officer’s

advisement that Wright would be entitled to appointed counsel only “if

you are diligent and the State feels you need one,” not only failed to

adequately convey the Miranda warnings to Wright, but also was actually

misleading. The Delaware Supreme Court never reached the merits of

this in Wright-2013 because it concluded that this contention was

procedurally barred by Superior Court Criminal Rule 61. The State

refers to this holding at several junctures in its motion, 29 perhaps to

suggest that my ruling warrants recusal. In particular, it quotes a

portion of the following passage by the Supreme Court in Wright-2013

which taken in its entirety might suggest that I invented this argument

on Wright’s behalf:

The Superior Court decided to address the
adequacy of Wright's Miranda warnings sua
sponte. It listened to the same videotaped
confession that was the subject of a motion to
suppress before trial; a claim of error on direct
appeal; the second Rule 61 motion; and the

29 State’s Mot. for Recusal, ¶¶ 5, 8, 19, 20, 22.

12
 appeal of that motion. Each challenge was
rejected after addressing Wright's understanding
of his Miranda rights. In deciding Wright's fourth
postconviction motion, the Superior Court did
not have any new evidence upon which to
conclude that Wright's Miranda warnings were
defective. A defendant is not entitled to have a
court re-examine an issue that has been
previously resolved simply because the claim is
refined or restated. Wright did not ask for that
relief, but if he had, there would be no basis on
which to find that he overcame the procedural
bar of Rule 61(i)(4). Reconsideration is not
warranted in the interest of justice. 30

An observer might understand from the above passage that (1)

“Wright did not ask for that relief” and (2) I “decided to address the

adequacy of Wright’s Miranda warnings sua sponte.” This in turn might

lead the observer to infer that I was so bent on granting Wright relief that

I made up the theory for him and then sprang it as a surprise in my

2012 opinion.

The record, however, shows something entirely different. The

Supreme Court was apparently incorrectly advised in Wright-2013 about

what the record has to say. Contrary to what the Court wrote, Wright

did in fact expressly ask for relief based upon the Miranda warnings he

was given. For example, in a portion of his 2009 amended petition--titled

“The Admission of Mr. Wright’s Alleged Confession Violated Miranda”--

Wright wrote:

30 State’s Mot. for Recusal, ¶ 8 (citing Wright-2013, 67 A.2d at 323-4) (emphasis
added). In its motion the State does not quote the second highlighted portion in its
motion.

13
 [T]he Miranda rights provided to Mr. Wright were
facially defective. Rather than tell Mr. Wright
that he had a constitutional right to the
appointment of counsel if he could not afford
one, Detective Mayfield conditioned the
appointment of counsel on whether “[t]he State
feels that you’re diligent . . . and further
conditioned his right to counsel on whether or
not the State believes he “needs one.” Detective
Mayfield’s version of Miranda rights
fundamentally altered the nature of Mr. Wright’s
constitutional right to counsel . . . . 31

When the Supreme Court wrote that I “decided to address the adequacy

of Wright’s Miranda warnings sua sponte” it was apparently laboring

under a misapprehension about what is contained in this voluminous

record. It had apparently not been told that the parties submitted

multiple briefs and presented at least two oral arguments on this very

issue. At the hearing on the instant recusal motion the State

acknowledged that the Miranda issue had been fully briefed while the

matter was pending before me:

THE COURT: [T]here was briefing on the
Miranda issue that I ruled upon, wasn’t
there?

THE STATE: Yes, Your Honor, many
rounds of briefing.

THE COURT: On that particular issue.

THE STATE: It was no exaggeration
saying many rounds of briefing on
specifically on the Miranda issue. I don’t
believe that’s any exaggeration. 32

31 Consol. Successor Pet. For Postconviction Relief, D.I. 387, at 6.
32 Tr. at 42.

14
 I realize that by writing this I risk appearing to be obdurately

clinging to the view that Wright’s Miranda argument is not procedurally

barred by Rule 61(i)(4). That is not my intent. Nor is my purpose here to

quibble with the Supreme Court’s conclusions. Rather, it is solely to

show that, contrary to what an observer might infer from the passage in

Wright-2013, I was not so determined to grant Wright relief that I

invented a reason for him. 33

b. My comments that I lacked confidence in the
verdict do not require my recusal.

Having dispensed with the preliminary matter, I will turn to the

State’s two primary arguments. The first argument focuses on

comments I made during the proceedings concerning the verdict in the

guilt phase of Wright’s trial. In Wright-2012 and in comments from the

bench I expressed a lack of confidence in it. The State contends in its

principal argument 34 here that my assessments of the evidence show

that “an objective observer would surely conclude that [my] fair and

impartial consideration [of future issues] is unlikely.” 35 The State

33 After Wright’s conviction was vacated and the matter remanded I wrote a letter to
counsel about scheduling. D.I. 494. The State asserts I “once again sua sponte raised
the issue of the admissibility of the Defendant’s confession, at least implicitly, by
suggesting that a scheduling conference include a discussion of a schedule to resolve
the issue.” State’s Mot. for Recusal, ¶ 20. No inference of bias arises from that letter.
The Supreme Court held that Wright’s Miranda claim was barred by Rule 61(i)(4), which
applies to motions for postconviction relief. See Wright-2013, 67 A.3d at 323-34. But
this is no longer a proceeding for postconviction relief and is not governed by Rule 61. It
does not stretch the imagination to conclude there is at least a plausible argument that
the reason why the Supreme Court held the Miranda claim was barred no longer applies
here. As Defendant confirms, I was simply anticipating the obvious when I told counsel
I wanted to promptly schedule the inevitable challenge to Wright’s confession.
34 At oral argument the State told me that this is their principal argument. Tr. at 31.
35 State’s Mot. for Recusal, ¶ 22.

15
overlooks, however, well-settled Delaware law, and also overlooks the fact

that the Delaware Supreme Court expressly agreed with my conclusions.

i. The statements which allegedly show bias stem
from my rulings on substantive issues which
were upheld by the Supreme Court.

The analysis must start, of course, with a consideration of my

statements which the State claims manifest bias on my part. As already

mentioned, those statements stem from my rulings that I lacked

confidence in the verdict. They were made in response to substantive

constitutional standards established by the United States Supreme Court

and followed by the Delaware Supreme Court, and the Delaware

Supreme Court expressly agreed with my lack of confidence in Wright-

2014. 36

a. The statements which allegedly show bias.

Although the State refers in its motion to my “repetitive and public

comments,” 37 it concedes that it relies exclusively 38 on the following three

statements I made from the bench:

• “When you read the opinion you’ll see that I have grave
concerns over the sufficiency of the evidence that was

36 91 A.3d at 994.
37 Motion, ¶18. The State’s choice of the words “repetitive and public comments” is
unfortunate and warrants comment. As the State is presumably aware, The Delaware
Code of Judicial Conduct Rule 2.10(A) requires a judge to “abstain from public
comment on the merits of a pending or impending proceeding.” Thus the State’s
reference to my “repeated public comments” might easily be construed as suggesting
that I violated Rule 2.10. But as that rule expressly provides that it does not “extend to
statements made in the course of the judge’s official duties.” The State concedes that I
never made any “public comments” except in the course of these proceedings.
Therefore, although perhaps unintended, the suggestion that I violated Rule 2.10 is
misguided.
38 Tr. at 28.

16
 [used] to convict Mr. Wright. In fact I have virtually no
confidence in the evidence.” 39

• “As the Court pointed out in [Wright-2012] there is
little if any, evidence to connect the defendant to the
crime.” 40

• “Therefore I find that there is little, if any, evidence
linking the defendant to this horrific crime, and
therefore I am going to deny the State’s application to
hold the defendant without bail.” 41

The State argues that, “despite the Defendant’s videotaped confession to

the murder,” these statements show that I believe that “the Defendant is,

in effect, innocent.” 42 An informed observer, however, would not reach

that conclusion because that observer would be aware from Wright-2012

that I took into account that confession:

• “Aside from that confession and the dubious testimony of
Mr. Samuels about Mr. Wright's purported jailhouse
confession, there is absolutely no evidence linking Wright to
this horrific crime.” 43

• “[T]he only evidence against Wright is his confession, the
statement of jail house informant Samuels, and the
admission of Lorinzo Dixon during his plea colloquy that he
participated in the crime” 44

My assessment of the evidence was not fanciful. At one of the Rule 61

hearings in this case the State conceded that this assessment was

accurate:

39 State’s Mot. for Recusal, ¶¶ 5,19.
40 Id.¶¶ 6, 19.
41 Id. ¶¶ 6, 22.
42 Id. ¶ 19
43 Wright-2012, 2012 WL 1400932, at *39 (emphasis added).
44 Id. at *24 (emphasis added).

17
 THE COURT: Is there anything else that
links Mr. Wright to this killing other than his
confession and Samuel’s statement? Is there
any physical evidence that links him to there?

***

THE STATE: No, there’s not some piece of
clothing that I can point to Your Honor from the
record.

THE COURT: Is there any evidence at all
other than the aforementioned confession and
Samuels testimony?

THE STATE: If I may just have a moment,
Your Honor.

THE COURT: Do you want to confer?

THE STATE: Yes, please.

THE COURT: Sure, go ahead.

(State counsel conferring.)

THE STATE: I just wanted to make sure I
was not forgetting something, Your Honor and,
no, I’m not. 45

As mentioned, the State also contends that in effect I expressed an

opinion that Wright is innocent. An informed observer would know

better: in Wright-2012 I wrote that “[t]he court emphasizes that it is not

saying that Wright did not murder Phillip Seifert.” 46 Further, the State

overlooks that even if I had formed a view whether Wright actually

murdered Philip Seifert, that view would not be pertinent to the recusal

45 June 12, 2009 Oral Argument Tr. at 122-23.
46 Wright-2012, 2012 WL 1400932, at *26.

18
calculus because it would have been based exclusively upon the record. 47

In an oft-quoted passage, renowned Judge Jerome Frank once wrote:

Impartiality is not gullibility. Disinterestedness
does not mean child-like innocence. If the judge
did not form judgments of the actors in those
court-house dramas called trials, he could never
render decisions. 48

b. My rulings were made in response to
substantive law requirements.

My holding that I had little or no confidence in the verdict was not

gratuitous. Rather, I was required to address that issue by the

substantive law underlying Wright’s Brady claims. “The holding in Brady

v. Maryland requires disclosure only of evidence that is both favorable to

the accused and material either to guilt or to punishment.” 49 Materiality

for Brady purposes turns on whether the State’s suppression of evidence

undermines confidence in the verdict.

One does not show a Brady violation by
demonstrating that some of the inculpatory
evidence should have been excluded, but by
showing that the favorable evidence could
reasonably be taken to put the whole case in
such a different light as to undermine
confidence in the verdict. 50

47 See text accompanying footnotes 54 through 68, infra.
48 In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943).
49 United States v. Bagley, 473 U.S. 667, 674 (1985) (internal quotations omitted).
50 Kyles v. Whitley 514 U.S. 419, 435 (1995) (emphasis added).

19
Not surprisingly, the undermines-the-confidence-in-the-verdict standard

is routinely applied in the Delaware courts. In Atkinson v. State 51 the

Delaware Supreme Court explained the law this way:

The United States Supreme Court expanded the
definition of materiality in Kyles v. Whitley. In
Kyles, the Court held that materiality does not
require a showing that the suppressed evidence
ultimately would have resulted in an acquittal.
Rather, the Kyles Court required that the
defendant, in light of the undisclosed evidence,
receive a fair trial, understood as a trial
resulting in a verdict worthy of confidence. Thus,
in order to show a reasonable probability of
a different result, a defendant need only
show that the suppressed evidence
undermines the confidence in the outcome of
the trial. 52

My expression of concern about the verdict in Wright’s trial, therefore, is

not an expression of a personal bias, but merely an assessment of the

evidence I was required to make by Brady and its progeny.

c. The Delaware Supreme Court reached the
same conclusion about the lack of
confidence in the verdict which I reached.

In Wright-2014, the Delaware Supreme Court expressed the same

concern I expressed about the verdict in this case. The Court wrote

“[t]he postconviction evidence led the Superior Court to conclude that it

had no confidence in the outcome of the trial. Neither do we.” 53 Despite

the obvious significance of the Supreme Court’s conclusion, the State

made no mention of it in its motion.

51 778 A.2d 1058 (Del. 2001).
52 Id. at 1065 (alteration in original and internal quotations omitted).
53 Wright-2014, 91 A.3d at 994.

20
 In short, an informed observer would understand that I was not on

an intellectual lark when I expressed doubt about the trustworthiness of

the verdict and would also understand that the highest court of this state

shared my concern. This alone is dispositive of the State’s contention.

Nonetheless, I will discuss two legal principles which are also dispositive.

c. Statements in judicial rulings almost never
constitute grounds for recusal.

The State’s motion overlooks entirely the well established principle

that judicial pronouncements made during the course of litigation almost

never constitute a ground for recusal. As the Delaware Supreme Court

has observed:

[T]his Court previously has held that the bias . .
. is not created merely because the trial judge
has made adverse rulings during the course of a
prior proceeding. In fact, a trial judge's rulings
alone almost never constitute a valid per se
basis for disqualification on the ground of bias. 54

This principle has often been repeated been repeated in one form or

another in the Delaware courts. 55 It is also widely accepted elsewhere,

and is seen as a prophylaxis against judge shopping:

The traditional judicial view is that if a judge can
be disqualified for bias following a comment or

54 In re of Wittrock, 649 A.2d 1053, 1053 (Del. 1994) (internal citations omitted).
55 Flowers v. State, 53 A.3d 301 (Del. 2012) (TABLE) (“The fact that a judge has made
rulings adverse to a party is not, in and of itself, evidence of bias.”); Brooks v. BAC
Home Loans Servicing, LP, 53 A.3d 301 (Del. 2012) (TABLE) (“The trial court's adverse
rulings simply form no valid basis for the judge's disqualification in this case.”); Dickens
v. State, 2 A.3d 73 (Del. 2010)(TABLE) (“[A] judge's adverse rulings, standing alone, do
not constitute a valid basis for the judge's disqualification on the ground of bias.”);
Fairthorne Maint. Corp. v. Ramunno, 2006 WL 4782464, at *1 (Del.Ch. Aug. 31, 2006)
(“The fact that you do not like what a judge says about the litigation at issue during a
conference does not justify a request for recusal”).

21
 ruling during court proceedings there is no limit
to disqualification motions and there would be a
return to “judge shopping.” 56

The United States Supreme Court has also reached the conclusion that

“judicial rulings alone almost never constitute a valid basis for a bias or

partiality motion.” 57 It is undisputed that all of my allegedly offending

statements arose either as a judicial ruling or a reference to one of my

judicial rulings. Consequently, they cannot be grounds for my recusal.

d. Statements not based on an extrajudicial source
do not require recusal.

A second well-established principle which is dispositive here, and

which the State also overlooked, is the extrajudicial source rule. In Los,

the Delaware Supreme Court wrote that “[t]o be disqualified the alleged

bias or prejudice of the judge ‘must stem from an extrajudicial source

and result in an opinion on the merits on some basis other than what

the judge learned from his participation in the case.’”58 The existence of

an extrajudicial source has generally been thought by Delaware courts to

be a sine qua non to a request for recusal. 59 The operation of the

extrajudicial source rule was described by this court in 2011:

56 Leslie W. Abramson, Judicial Disqualification under Cannon 3 of the Code of Judicial
Conduct, at 25 (2d ed. 1986).
57 Liteky v. United .States, 510 U.S. 540, 555 (1994).
58 Los, 595 A.2d at 384 (emphasis added).
59 E.g., Henry v. State, 931 A.2d 437 (Del. 2007) (TABLE) (“Generally, a claim of bias

on the part of a judge must stem from an extrajudicial source. Because there is no
evidence, indeed no claim, of any extrajudicial source of judicial bias, we conclude that
Henry's fourth claim, too, is without merit.”); Chinski v. State, 900 A.2d 100 (Del. 2006)
(TABLE) (No requirement of recusal because “[w]e find no basis for disqualification of
the judge in this case. There is no evidence of bias or prejudice stemming from ‘an
extrajudicial source’ resulting ‘in an opinion on the merits other than what the judge
learned from his participation in the case.’”); Beck v. Beck, 766 A.2d 482, 485 (Del.

22
 With respect to the objective inquiry, to be
disqualified on this ground the alleged bias
“must stem from an extrajudicial source and
result in an opinion on the merits on some basis
other than what the judge learned from his
participation in the case.” The exclusive source
of this judge's knowledge of Defendant is the
criminal trial and the attendant pretrial and
post-trial proceedings; this judge's knowledge of
Defendant has arisen solely in the judicial
context. Consequently, this Court's opinions on
all of Defendant's motions, including the instant
motions, are based solely on the record of this
case and the applicable law; at no time have any
extrajudicial sources influenced any decision on
the merits of Defendant's arguments. 60

While the existence of the extrajudicial source rule remains

unquestioned in Delaware, its exact scope may be in a state of flux.

When our Supreme Court first postulated the rule in Los it cited to the

United States Supreme Court’s decision in United States v. Grinell 61 for

the proposition that a party seeking recusal because of a judge’s opinions

must show an extrajudicial source for those opinions. 62 But after the

Delaware Supreme Court’s opinion in Los, the United States Supreme

Court revisited its holding in Grinell. In Liteky v. United States, the Court

2001) (the alleged bias or prejudice must be based on information that the trial judge
acquired from an “extrajudicial source.”); Jackson v. State, 684 A.2d 745, 743 (Del.
1996) (“To serve as a disqualifying factor, the alleged bias or prejudice of the judge must
stem from an extrajudicial source and result in an opinion on the merits on some basis
other than what the judge learned from his participation in the case.”); Custis v. Collins,
615 A.2d 278 (Del. 1993) (TABLE) (“[T]he burden is upon the proponent of an allegation
of bias to demonstrate that the judge's bias originated from an extra-judicial source and
resulted in an opinion on some basis other than what the judge learned from his or her
participation in the case.”).
60 State v. Desmond, 2011 WL 91984, at *13 (Del. Super. Jan. 5, 2011) (footnotes

omitted).
61 384 U.S. 563 (1966).
62 595 A.2d at 384.

23
recast the extrajudicial source rule as the extrajudicial source factor. 63

According to the Liteky Court, in rare cases it would be possible for a

party to make out a claim for recusal even in the absence of an

extrajudicial source. 64 The Court held that judicial rulings (even if they

are incorrect) are not grounds for recusal absent “knowledge acquired

outside [judicial] proceedings,” or a “deep-seated and unequivocal

antagonism that would render fair judgment impossible.” 65

Liteky did not involve an interpretation of the Federal Constitution

and therefore is not binding on state courts. 66 Although the Delaware

courts appear not to have followed Liteky, the issue whether the so-called

extrajudicial source rule is a rule or a factor is not free from doubt. With

a single exception, the Delaware cases (including those from the

Supreme Court) after Liteky suggest that Delaware still adheres to the

extrajudicial source rule. The one exception, however, raises some

question. In Gattis v. State the Delaware Supreme Court took note of the

shift in Liteky:

In Liteky, the majority opinion held that
“opinions formed by the judge on the basis of
facts introduced or events occurring in the
course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias
or partiality motion unless they “display a deep-
seated favoritism or antagonism that would make

63 510 U.S. at 556.
64 Id. at 555-56.
65 Id. at 556.
66 Liteky involved interpretation of 28 U.S.C. § 455, which is very similar to the

Delaware Judges’ Code of Judicial Conduct Rule 2.11. “In 1974, Congress followed the
ABA's lead and amended § 455(a) to harmonize the federal statutory approach with the
Model Code of Judicial Conduct.” Desmond, 2011 WL 91984, at *9.

24
 fair judgment impossible.” The concurring
Justices in Liteky argued that this standard
effectively asks the reviewing court to determine
“whether fair judgment is impossible” and could
be construed to require “some direct inquiry to
the judge's actual, rather than apparent, state of
mind....” Justice Kennedy advocated a more
straightforward standard, to focus on “the
appearance of partiality, not its place of origin.”
“Disqualification is required if an objective
observer would entertain reasonable questions
about the judge's impartiality. If a judge's
attitude or state of mind leads a detached
observer to conclude that a fair and impartial
hearing is unlikely, the judge must be
disqualified.” 67

This language could be understood as an endorsement of Liteky’s

extrajudicial factor analysis. But other language in Gattis suggests the

opposite is true. The Gattis court reiterated that “[u]nder the objective

portion of the test, for the judge to be disqualified, the alleged bias or

prejudice of the judge must stem from an extrajudicial source and result

in an opinion on the merits on some basis other than what the judge

learned from his participation in the case.” 68 Since Gattis, the Delaware

Supreme Court 69 and the lower courts 70 have on multiple occasions

67 955 A.2d at 1284 (emphasis in original and added) (footnotes omitted).
68 Id. at 1281 (emphasis added)(internal quotations omitted).
69 Pinkston v. State, 91 A.3d 562 (Del. 2014) (TABLE) (citing Los for the proposition
that “a claim of judicial bias must stem from an extrajudicial source.”); Fisher v. Fisher,
979 A.2d 1110 (Del. 2009) (TABLE) (“Generally . . . allegations of a judge's bias must
stem from an extrajudicial source and cannot be based solely on adverse rulings in the
present case”); Jackson v. State, 21 A.3d 27, 35 (Del. 2011)(“This Court rejected that
claim under a plain error standard of review, because the judge's familiarity with the
victim resulted entirely from a judicial, rather than extrajudicial source and recusal was
therefore not required”).
70 BAC Home Loans Servicing v. Brooks, 2012 WL 1413608, at *3 (Del. Super. Feb. 2,

2012) (“Disqualification is only required where the alleged bias or prejudice of the judge
stems from “an extrajudicial source and result[s] in an opinion on the merits on some
basis other than what the judge learned from his participation in the case.”) (alteration

25
opined, without exception, that the absence of an extrajudicial source

precludes the finding that recusal is required.

Whether Delaware still adheres to the extrajudicial source rule

(as opposed to factor) is largely an academic question here because,

under either standard, the State has failed to make a showing that my

recusal is necessary. The State concedes, as it must, that my opinions

were not based on any extrajudicial source. 71 If indeed Delaware

adheres to the extrajudicial rule theory, the State’s concession is the end

of the story. On the other hand, if our Supreme Court would now

subscribe to the extrajudicial factor theory, for all intents and purposes,

the State’s concession is still the end of the story. The State has not

shown a “deep-seated favoritism or antagonism [on my part] that would

make fair judgment impossible.” First, as discussed above, the notion

that I have manifested a “deep-seated favoritism or antagonism”

overlooks that I was required by the applicable law to assess the strength

of the State’s case, and therefore my assessment was not gratuitous.

Second, it ignores the fact that the Supreme Court expressly agreed with

my lack of confidence in the verdict. Third, it forgets that I ruled in its

favor on most of Wright’s claims. Taken either singly or together, these

in original); Johnson v. State, 2011 WL 2083907, at *4 (Del. Super. May 4, 2011)(“For a
judge's personal bias against a defendant to be disqualifying, it must stem from an
extrajudicial source and result in an opinion on the merits on some basis other than
what the judge learned from his participation in the case.”); State v. Carletti, 2011 WL
6157469, at *1 (Del. Super. Dec. 9, 2011) (“[F]or the Commissioner to be disqualified,
the alleged bias or prejudice “must stem from an extrajudicial source and result in an
opinion on the merits of some basis other than what the ... [Commissioner] learned
from his participation in the case.”) (alteration in original).
71 Tr. at 28-29.

26
facts dispel any notion that I have harbored deep-seated bias or

antagonism against the State.

In sum, this case is no different from the one before the Delaware

Supreme Court in Henry v. State in which it held:

Henry’s fourth claim is that the Superior Court
judge who presided over the [Violation of
Probation] hearing should have recused himself,
presumably because his familiarity with Henry
would result in judicial bias. Generally, a claim
of bias on the part of a judge must stem from an
extrajudicial source. Because there is no
evidence, indeed no claim, of any extrajudicial
source of judicial bias, we conclude that Henry's
fourth claim, too, is without merit. 72

i. The State’s belated argument misreads Liteky.

At oral argument the State argued, for the first time, that the

context in which I made the allegedly offending statements somehow

transformed them from appropriate judicial comment into something

requiring recusal. It did not, however, explain the logic of this assertion

and asserted no authority in support of it other than an erroneous

interpretation of the United States Supreme Court’s opinion in Liteky v.

United States. 73 At oral argument the State articulated for the first time

the following argument:

And what Liteky said essentially was that . . .
judicial rulings do not include, and I’m quoting
from the Litkey opinion—this is the Supreme
Court Reporter version in 1157—“in and of
themselves, i.e., apart from surrounding
comments or accompanying opinion, closed

72 931 A.2d 437, 437 ¶ 12 (Del. 2007) (TABLE) (footnote omitted).
73 510 U.S. 540.

27
 parenthetical, they, and the they refers to
judicial rulings, cannot possibly show reliance
on extrajudicial source and only can in the
rarest of circumstances evidence the degree of
favoritism and antagonism required as
discussed below when no extrajudicial source is
involved.” 74

***

The reason that matters is that what Liteky says
is those kinds of comments, the ones
surrounding rulings, are not subject to what I’ll
characterize as a great presumption of
propriety. 75

***

But what Liteky says is that comments
surrounding rulings are different than the
rulings themselves. And that is the distinction
that we think is of moment here. 76

***

Your Honor . . . what I think Liteky is talking
about are comments that are not necessary to
the ruling. 77

The argument that judicial statements which are proper in one

context of a judicial proceeding may give rise to recusal if made in

another context of the judicial proceeding has never received any support

in the case law. As one United States Court of Appeals put it, “there was

no authority for the proposition that the time and manner of the judge's

74 Tr. at 4-5.
75 Id. at 6 (internal quotation marks added for clarity).
76 Id. at 8.
77 Id. at 70.

28
ruling creates a reasonable doubt about impartiality, absent any other

indicia of bias or partiality.” 78

The State’s reliance upon Liteky is misplaced; that case had

nothing to do with whether the context of a judicial statement

determined whether recusal was required. Instead, according to the

Liteky Court, the issue before it was “whether required recusal . . . is

subject to the limitation that has come to be known as the ‘extrajudicial

source’ doctrine.” 79 The language in Liteky to which the State alluded at

oral argument is wholly unrelated to the proposition for which the State

cites it. Rather, the Liteky Court simply pointing out that judicial

rulings, in and of themselves, seldom disclose the existence of an

extrajudicial source. The Supreme Court wrote:

First, judicial rulings alone almost never
constitute a valid basis for a bias or partiality
motion. In and of themselves (i.e., apart from
surrounding comments or accompanying
opinion), they cannot possibly show reliance
upon an extrajudicial source. 80

I reject the argument, therefore, that my otherwise appropriate

comments about my lack of confidence in the verdict somehow require

my recusal merely because, in the State’s view, they were made in the

wrong phase of the proceedings.

78 Estate of Bishop v. Equinox Int’l Corp., 256 F.3d 1050, 1057 (10th Cir. 2001) (internal
alteration and quotation omitted).
79 Liteky, 510 U.S. at 541.
80 Id. at 555 (internal citation omitted).

29
 e. My decisions concerning Wright’s bail do not
show a deep- seated bias on my part.

In a random argument the State points to the amount of bail I set

once I determined (erroneously) that Wright was entitled to bail.

According to the State, the bail I set ($200,000 cash only) was lower than

that in three other murder cases over which I presided.81 The relevance

of this is not explained in the State’s papers, so I am left to assume the

State believes this shows some “deep-seated favoritism or antagonism”

on my part. If that is the intent of the State’s reference to the bail I set

for Wright, the contention is contradicted by the record. The State does

not mention in its papers that the bail I set was the maximum

recommended for Class A felonies in the bail guidelines for Justices of

the Peace Courts. The State also forgets that I denied Wright’s request to

post property in lieu of cash, and overlooks the fact that after setting

Wright’s bail I stayed his release so that the State would have an

opportunity to appeal my ruling. An informed observer, who was aware

of these unmentioned facts, would not infer from the amount of bail I set

that I was biased either against the State or in favor of Wright.

f. My past professional relationship and friendship
with a witness who has no stake in the outcome
of the case does not require my recusal.

The State’s other argument is that my relationship with Captain

William Browne of the Wilmington Police Department requires me to

81 In one of the three cases mentioned by the State I had no role in setting the
defendant’s bail.

30
recuse myself from Wright’s trial. It makes this argument despite the

fact that it previously expressly waived its right to seek my recusal on the

basis of this. Their waiver alone bars the State’s argument. But there

are other reasons why that relationship does not require my recusal.

First, Captain Browne has no stake whatsoever in the outcome of

Wright’s second trial and thus an informed reasonable observer would

not believe his presence as a witness would affect my rulings in this case.

Second, the jury—not me—will be called upon to make any necessary

judgments about Captain Browne’s credibility.

i. Background matters relating to Captain Browne.

a. My relationship with Captain Browne.

I first met Captain Browne when, while in private practice, I

represented some Wilmington police officers who were sued in a 2004

federal civil rights action styled Estate of Harry Smith v. City of

Wilmington. This civil case arose out of a police-involved shooting. As it

does in all such matters, the Wilmington Police Department investigated

the matter; (then Lieutenant) Browne was in charge of that investigation.

As would be expected, I had frequent contact with him during my

preparation for trial in the Smith case. 82 During the pendency of the

Smith matter, Captain Browne was himself named as a defendant in a

82 The Smith case was tried before a federal jury in April 2007.

31
different civil rights action. 83 I represented him (and others) in that

matter until I was appointed to the bench in 2008.

Although I would characterize Captain Browne as a friend at that

time, most of our interaction was professional. On a few occasions I

visited Captain Browne at his home to discuss either the Smith matter or

his own case. I recall a single social interaction with him--in September

2007--when we attended a Phillies game together. The isolation of the

bench quickly took its toll on my friendship with him. In the months

after I assumed my current office I briefly spoke with Captain Browne

perhaps two or three times; those contacts soon ceased entirely. The last

time I remember speaking with him was at a chance meeting at a funeral

in October 2011, when we briefly conversed, in the presence of others.

As I recall, the topic of that short conversation was the ill fortune of the

Phillies who were then involved in a playoff series with the St. Louis

Cardinals.

b. The role of Captain Browne’s testimony in
the instant case.

Captain Browne did not participate in the HiWay Inn

investigation. 84 Rather his testimony in the present matter relates to an

83 The State’s petition incorrectly states that I represented Captain Browne in two
matters.
84 Arguably Browne played a peripheral role in the HiWay Inn investigation. The
Wilmington Police Department executed the arrest warrant issued against Wright and
the search warrant issued for the search of his home. (Both were executed at the same
time). The Wilmington police did so because the warrants were issued in connection
with two crimes committed within the city. Captain Browne was part of the Wilmington
SWAT team that executed those warrants. No evidence incriminating Wright in the
HiWay Inn murder was found during that search.

32
attempted robbery of Brandywine Valley Liquor Store (“BVLS”) which

may provide evidence which exculpates Wright. The Delaware Supreme

Court described the BVLS evidence and its exculpatory nature:

The nearby BVLS attempted robbery occurred close in time
to the Hi–Way Inn robbery. The two crimes occurred within
forty minutes of each other and took place less than two
miles apart. The descriptions of the suspects in the BVLS
robbery were similar to the descriptions of the two men seen
leaving the Hi–Way Inn. Both crimes involved the use of a
firearm. The BVLS crime was an attempted robbery using a
handgun, and the Hi–Way Inn murder involved the use of a
.22 caliber weapon.

As the Superior Court noted, a plausible argument can be
made that the unsuccessful perpetrators of the BVLS
attempted robbery were the same individuals involved in the
Hi–Way Inn robbery shortly thereafter. The court explained:

It should be recalled that Debra Milner (the
barmaid at the HiWay Inn) told police that prior
to the crime a black man wearing a red plaid
flannel shirt came into the tavern and
apparently surveyed the scene. (After viewing
photos Ms. Milner denied that either Wright or
Dixon resembled that man.) No red shirt was
ever found at Wright's or Dixon's home. But
according to a report prepared by the
Wilmington Police Department, Mr. Baxter
described one of the Brandywine Village
perpetrators as wearing a “red coat”, suggesting
of course that it was one of the Brandywine
Village perpetrators, not Wright or Dixon, who
cased the HiWay Inn.

Police ruled Wright and Dixon out as possible suspects
based on Baxter's witness identification. Such evidence, if
presented at trial, would have been exculpatory.85

85 Wright-2014, 91 A.2d at 991-92.

33
There is no indication that his testimony will be disputed. Neither side

disputed his testimony at the Rule 61 hearing, and the State has not

pointed to any new facts in its motion to suggest that his testimony will

change at trial.

ii. The State expressly waived any claim I should
recuse myself.

There are several reasons why Captain Browne’s participation as a

witness does not cause me to recuse myself. The one of immediate note

is that the State has already waived its right to seek my recusal because

of his participation

a. My disclosure of my relationship with
Captain Browne and the State’s waiver of
any conflict.

When I joined the court I inherited this case from my predecessor,

who was the trial judge and presided over several pre- and post- trial

hearings. By the time this case came to me the file was already quite

voluminous. When I first assumed responsibility for it there was no

indication Captain Browne would play any role in these proceedings. It

was not until months later that I became aware of his possible role as a

witness. By then I had invested considerable time familiarizing myself

with the file. Upon learning of the possibility that Captain Browne might

be a witness in the Rule 61 proceedings, I immediately disclosed my

relationship and told counsel I did not think I could fairly rule upon his

credibility if called upon to do so. I initiated a discussion with counsel

about whether my recusal was necessary. Defendant’s counsel asked me

34
not to recuse myself, but the State initially felt I should do so. I

demurred at the time, telling counsel it appeared that Captain Browne’s

testimony would be undisputed, thus making any judgment about his

credibility unnecessary. I also told counsel I was concerned that I had

already devoted considerable time to familiarizing myself with the record

and it would be a substantial burden on the court for a replacement

judge to do that over again.

The State changed its mind a few days later and waived recusal.

During an on-the-record teleconference, counsel for the State told the

court:

I think we just have, I guess, maybe a list of
things to clean up. Just one short one on the
William Browne issue. Your Honor, the State
thinks that we might be able to resolve that
issue entirely if counsel for Mr. Wright will waive
any claim that you should not be able to decide
the case based on that testimony and also
having Jermaine Wright himself acknowledge
that. Then the issue would go away. 86

A few days after that conference Wright (and his counsel) appeared in

open court, at which time I conducted a colloquy with Wright. During

that colloquy I repeated the facts concerning my friendship and

professional relationship with Captain Browne. 87 Wright, who had

previously privately consulted with his counsel about this, personally
86 Sept. 10, 2009 Teleconference Tr. at 2, D.I. at 427.
87 In its motion for recusal the State recited that I “thus found it necessary” to advise
Wright of my relationship. State’s Mot. for Recusal, ¶ 4. This might suggest that my
disclosures were something other than voluntary. The State requested that I advise
Wright personally of my relationship with Captain Browne and I confirm Wright’s waiver
with him on the record. I would have to do this even if the State had not asked.

35
affirmed that he agreed to waive my recusal. At no time since then--until

the filing of the present motion--has the State ever expressed any

concern over my presiding in this case.

The State does not contend that its waiver is invalid, nor has it

ever asserted the waiver was limited in scope. Although the rules for

waiver of recusal are “quite exacting,” they have been satisfied here. The

Delaware Supreme Court summarized those rules:

It is well settled in Delaware that a party may
waive her rights. But, the standards for proving
waiver under Delaware law are quite exacting.
Waiver is the voluntary and intentional
relinquishment of a known right. It implies
knowledge of all material facts and an intent to
waive, together with a willingness to refrain from
enforcing those rights. We also have explained
that the facts relied upon to prove waiver must
be unequivocal. Applying those principles, we
have required a party claiming waiver to show
three elements: (1) that there is a requirement or
condition to be waived, (2) that the waiving party
must know of the requirement or condition, and
(3) that the waiving party must intend to waive
that requirement or condition. 88

All of these requirements are satisfied here. It is undisputed that the

State knew that it had a right to seek my recusal, knew of the facts

giving rise to that right and intended to waive that right.

Notably, the State does not contend there are any procedural

irregularities in its waiver of recusal. The Delaware Judges’ Code of

88 Bantum v. New Castle Cnty Vo-Tech Educ. Ass'n, 21 A.3d 44, 50 (Del. 2011) (internal
alterations, footnotes, and quotations omitted).

36
Judicial Conduct provides that the parties may waive recusal, provided

certain requirements are met:

A judge disqualified by the terms of Rule 2.11 . .
. may, instead of withdrawing from the
proceeding, disclose on the record the basis of
the judge's disqualification. If the parties and
their lawyers, after such disclosure and an
opportunity to confer outside of the presence of
the judge, all agree in writing or on the record
that the judge should not be disqualified, and
the judge is then willing to participate, the judge
may participate in the proceeding. The
agreement shall be incorporated in the record of
the proceeding. 89

The State agrees that (a) I disclosed on the record the basis of

disqualification; (b) its counsel had an opportunity several days, in fact

to confer outside of [my presence]; and (c) all agreed on the record that I

should not be disqualified. I conclude, therefore, that the State’s waiver

was valid.

b. The State is bound by its waiver.

Having made a valid waiver, the State is now bound by it. Courts

have traditionally held that a waiver of a judge’s potential recusal is

binding. Just this year the United States Court of Appeals for the

District of Columbia Circuit observed that the withdrawal of a request for

recusal constitutes a waiver of that request and is therefore binding:

89 Del. Judges’ Code of Judicial Conduct Rul 2.11. The rule has thee exceptions where
a waiver is prohibited. In general terms parties may not waive a conflict when a judge
has a personal bias, has personal knowledge of disputed facts or has previously been
involved in the matter in some capacity other than as a judge. The State does not argue
that any of those exceptions are applicable here.

37
 In the current appeal, Brice notes in passing a
comment about Brice and one of the witnesses
that the District Court made at the February 15,
2006, pre-trial hearing. Brice's counsel was
present at that hearing. At the conclusion of the
relevant pre-trial hearings, after initially
objecting to the judge's comment and seeking
recusal, Brice then expressly withdrew and
thereby waived any recusal claim based on that
comment. 90

Other courts have reached the same conclusion about the binding nature

of such waivers. 91

There is a sound policy reason why a waiver of recusal, once made,

cannot generally be withdrawn. Judicial resources are scarce, and after

a party waives a right to seek recusal the presiding judge will ordinarily

devote some those scarce resources to resolution of the matters raised in

that case. As discussed later in this opinion, a withdrawal of that waiver

would result in the irretrievable loss of the judicial resources expended

on that case. Accordingly, courts cannot, and do not, allow withdrawal

of a waiver of recusal except in the most extraordinary of circumstances.

c. The State has not shown good grounds for
withdrawing its waiver.

The State has fallen far short of showing any extraordinary

circumstances which would justify allowing it to withdraw its waiver. It

concedes that no new facts have come to light which prompt its motion.

90 United States v. Brice,748 F.3d 1288, 1290 n.1 (D.C. Cir. 2014).
91 Unif. Masters v. McKesson Corp., 465 F. A’ppx. 466 (6th Cir. 2012); Fletcher v.
Conoco Pipe Line Co., 323 F.3d 661 (8th Cir. 2003); United States v. Bayless, 201 F.3d
116 (2d Cir. 2000); United States v. Sampson, 12 F.Supp.3d 203 (D.Mass. 2014)(“[A]
waiver of grounds for recusal generally cannot be withdrawn at a later date.”).

38
Rather, it asserts that it did not appreciate the consequences of its

waiver at the time it made it.

According to the State, “[t]he importance of Captain Browne as a

trial witness is now obvious, albeit only in hindsight.” I need not,

however, make a metaphysical determination whether that testimony is

more important (a) when Wright is trying to establish he is entitled to a

new trial, or (b) when Wright’s new trial takes place. Absent a showing of

the development of new facts, the State’s failure to appreciate the

possible consequences of its waiver is of no relevance here.

The State concedes that no new facts have come to light about

Captain Browne’s role in this matter. In its motion the State sought to

explain why it now believes Captain Browne’s role is somehow more

significant than it was when it waived the conflict:

The importance of Capt. Browne as a trial
witness is now obvious, albeit only in hindsight.
[1] He is, in effect, the sole witness to most of the
important facts relevant to the identity of the
perpetrators of the BVLS robbery. [2] This Court
has held that evidence as to the identity of BVLS
robbery perpetrators is exculpatory. [3]
Obviously, if a jury were to conclude that either
the Defendant of his indicted codefendant were
[sic.] the perpetrators of the BVLS robbery, the
evidence would be inculpatory. 92

But all of these matters were either known or readily apparent at the

time it waived its right to seek my recusal. The following refers to the

92 State’s Mot. for Recusal, ¶ 16 (italicized numbers added).

39
correspondingly numbered sentences in the afore-quoted passage from

the State’s motion:

1. The State concedes it was aware at the time of its waiver that
Captain Browne “was the sole witness to most of the
important facts relevant to . . . BVLS robbery.” 93

2. Although the State did not know, of course, at the time of its
waiver that I would eventually hold “that evidence as to the
identity of the BVLS robbery perpetrators is exculpatory,”
the State concedes my holding is “certainly similar’ to the
claim then being made by Wright at the time. 94

3. With respect to the assertion that “[o]bviously, if a jury were
to conclude that either the Defendant of his indicted
codefendant were the perpetrators of the BVLS robbery, the
evidence would be inculpatory,” the State’s concession that
it is “obvious” dispels any thought that this was unknown to
the State at the time of its waiver. More to the point
perhaps, the State conceded at oral argument that it was
aware of this when it waived recusal. 95

When asked at oral argument whether there were any new facts which

had come to light about Captain Browne’s role, the State responded

“[f]actually, Your Honor, there’s not a change in the facts,” 96 and later,

“the facts have not changed.” 97 This precludes it from withdrawing its

waiver.

The reason the State now offers is that it improvidently waived the

right to seek recusal. At oral argument it contended that it did not

become aware of the consequence of its waiver until the Supreme Court

“refined” Wright’s Brady claim in Wright-2014:

93 Tr. at 57.
94 Id. at 58.
95 Id.
96 Id. at 59.
97 Id. at 60.

40
 There’s no question that we said what we said.
It’s in the record. And our response to the
Court’s questions is simply we think that
circumstances have changed significantly
because of the court’s 2014 opinion and its
refined description of the role of what I’ll call the
first robbery is in a determination of the
defendant’s guilt for the HiWay Inn robbery. 98

Nowhere in these proceedings has the State explained how it is that the

Supreme Court’s Wright-2014 opinion “refined” Wright’s theory.

The idea that the significance of Captain Browne’s testimony

somehow did not become apparent to the State until Wright-2014 is

unsupportable. The State has not even attempted to point to anything

in the record which misled it about the role of his testimony in this case.

As the State conceded at oral argument, the way it understands the role

of that testimony in light of the Supreme Court’s “refine[ment]” 99 in

Wright-2014 is “certainly similar” 100 to the way it understood the

testimony’s role when it waived its right to seek recusal.

iii. Even putting aside the State’s waiver, my
relationship with Captain Browne does not
require me to recuse myself.

Captain Browne has no stake in the outcome of Wright’s second

trial and therefore, no informed reasonable observer would conclude that

his presence as a witness would affect my rulings in this case. The

authorities appear unanimous that a judge’s friendship with a witness

98 Id. at 55
99 Id.
100 Id. at 58.

41
who has no stake in the litigation does not require the judge to recuse

himself. One respected treatise noted:

While a judge’s impartiality may sometimes be
called into question on the basis of her
friendships with parties or attorneys, the fact
that a judge is friends with others who may play
a role in a proceeding before her does not
necessarily raise the same type of concerns. For
example, the fact that a judge is friend with a
witness does not ordinarily warrant an inference
that the judge would be predisposed to credit
that witness’ testimony. Consequently, when a
disqualification motion alleges no more than
friendship between a judge and a witness, the
court will usually deny the motion. 101

Even a judge’s friendship with a nominal litigant or a lawyer—the

latter of which is certainly more problematic than friendship with a

witness—does not by itself require the judge to recuse himself. “Many

courts therefore have held that a judge need not disqualify himself just

because a friend—even a close friend—appears as a lawyer,” 102 let alone

a mere witness. The Tenth Circuit’s opinion in David v. City and County

of Denver 103 illustrates the point. In that case, the judge was presiding

in a civil rights case against a police chief and a number of police

officers. 104 The judge had previously represented the chief some twenty

years before and the judge also knew several of the law enforcement

101 Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges

§ 8.2 (2d ed. 2007). Flamm’s treatise has been relied upon at least twice by the
Delaware Supreme Court. See Del. Transit Corp. v. Amalgamated Transit Union Local
842, 34 A.3d 1064, 1071 (Del. 2011); Capano v. State, 781 A.2d 556, 640 (Del. 2001).
102 United States v. Murphy, 768 F.2d 1518, 36 (7th Cir. 1985).
103 101 F.3d 1344 (10th Cir.1996).
104 Id. at 1348-50.

42
witnesses in the case before him. 105 Further, the judge had recently

spoken to some of them, including the police chief, in connection with an

investigation of the murder of the judge's son. 106 The judge declined to

recuse himself. 107 In affirming his decision, the Court of Appeals wrote:

Although the test in this circuit is one of
reasonableness, it is reasonableness tempered
with a knowledge of the relevant facts. It is
hardly possible for a judge with criminal
jurisdiction to have no knowledge of some
personnel in law enforcement. We must examine
the judge's discretionary decision not to recuse
both in light of the judge's duty to decide cases
fairly and his duty to avoid impropriety,
determined from an informed, reasonable
viewpoint. There is as much obligation for a
judge not to recuse when there is no occasion for
him to do so as there is for him to do so when
there is. Our review of these matters leads us to
conclude that the trial judge did not abuse his
discretion in denying [the motion for
disqualification]. 108

If the judge under these circumstances did not abuse his discretion in

refusing to recuse himself where the acquaintance/former client was a

party, it goes without saying that my relationship with Captain Browne--

who is merely a witness with no stake in the outcome of this case--does

not require me to recuse myself. As the Sixth Circuit put it, “it would not

be an abuse of discretion to decline to recuse when friends are merely

105 Id. at 1350.
106 Id.
107 Id.
108 Id. at 1351 (internal emphasis, citation, and questions omitted).

43
witnesses instead of the target of the lawsuit.” 109 Jurists at the opposite

end of the judicial hierarchy from me have not recused themselves

because of friendship with a participant. Justice Scalia once wrote when

declining to recuse himself:

[W]hile friendship is a ground for recusal of a
Justice where the personal fortune or the
personal freedom of the friend is at issue, it has
traditionally not been a ground for recusal where
official action is at issue. 110

The State has not cited any authority holding that a judge should

recuse himself simply because he is friend of a witness who has no stake

in the outcome of the litigation. It attempts to fill that void by

substituting unsupported anecdotal statements from the two Deputy

Attorneys General who authored the State’s motion. Its motion recites

that the “experience of the undersigned prosecutors” is that it is the

common practice of Delaware trial judges to recuse themselves when it is

likely the judge has had “more than an incidental professional or

personal relationship” with an important witness. Courts do not accept

the unsupported opinions of lawyers as legal authority, and this case is a

good illustration of why. At oral argument one of the “undersigned

prosecutors” admitted he had tried only four cases to verdict in this court

and, contrary to what he stated in the motion, he was unaware of a

single instance in which a judge recused because of a friendship with a

witness. The other “undersigned prosecutor” had considerably more

109 Lawrence v. Bloomfield Twp., 313 F. A’ppx. 743, 79 (6th Cir. 2008).
110 Cheney, 541 U.S. at 916 (emphasis in original).

44
experience, but he could not name any judge who had recused himself

because of friendship with a witness, neither could he recall anything

about when this last occurred or even how often it had occurred. 111

In its motion the State argued, again without supporting legal

authority, that I should recuse myself because I might be required to rule

on evidentiary objections during Captain Browne’s testimony.112

According to the State, “depending on how it goes” one side or the other

may be required to “impeach his ability to accurately recount the events

of his 1991 investigation.” 113 It continues that because of this I might be

called upon “to make rulings that directly involve a former client.” 114 It

is difficult to understand why Captain Browne’s testimony would be

impeached, given that neither side disputed that testimony during the

Rule 61 proceedings. An informed reasonable observer would realize

that a witness who has no stake in litigation would care not one whit

about evidentiary rulings made during his testimony and therefore would

realize that his participation would not influence my evidentiary rulings.

Finally, I note that the Delaware Supreme Court has already dispensed

with the State’s argument. In Jackson v. State, it opined:

It is part of a trial judge's normal role to rule
upon the admissibility of contested evidence. In
the event a judge declares certain evidence to be
inadmissable, the judge is expected to exclude

111 Tr. at 23-25.
112 The State seems to have abandoned this contention during oral argument, but I
have addressed it out of caution.
113 State’s Mot. for Recusal, ¶ 16.
114 Id. ¶ 17

45
 that evidence as a factor in any further decision
making process. To require a judge to disqualify
himself or herself from further participation in a
case where the judge acts as a gatekeeper for the
admissibility of evidence would impose an
unreasonable and totally impracticable
standard. A conscientious application of the
subjective test by a judge faced with a recusal
motion based on exposure to inadmissible
evidence in the same proceeding will, in most
cases, provide sufficient protection from bias. 115
.

Another reason why my recusal is not called for here is that I will

not be called upon to make any judgments about Captain Browne’s

credibility. 116 The State conjured the possibility that, even though I will

not be the trier of fact at Wright’s second trial, I might still be called

upon to pass judgment on Captain Browne’s credibility. Its theory goes

this way:

• If Wright is again convicted of first degree murder, and

• If the State can develop evidence that Wright was in fact the

perpetrator of the BVLS attempted robbery, and

• The State would offer that evidence at the penalty hearing as

an aggravating circumstance, and

• I would have to weigh the any newly discovered evidence of

Wright’s involvement in the BVLS attempted robbery

115 684 A.2d 745, 753 (Del. 1994).
116 It should be recalled here that his testimony was undisputed at the Rule 61
hearing and the State has yet to proffer a reason why it will be disputed at trial. Even
in the unlikely event his credibility becomes an issue at trial it will be the jury, not me,
which will make that judgment

46
 against Captain Browne’s conclusion that Wright was not

the perpetrator of the BVLS crime, then

• I would have to make a judgment about Captain Browne’s

credibility.

The route to the State’s conclusion is tenuous and the destination is

remote. It is tenuous because it hinges on the premise that the State

can discover evidence that Wright was a perpetrator of the BVLS

attempted robbery. The State tried and was unable to develop such

evidence 22 years ago when Wright was first tried. There is scant

likelihood it will be able to do so now. 117

The remoteness of the possibility I would have to make a judgment

about Captain Browne’s credibility argues against recusal. It is settled

that a “judge should not recuse on unsupported, irrational, speculative,

or highly tenuous grounds. A judge must hear a case unless some

reasonable factual basis to doubt the impartiality of the tribunal is

shown by some kind of probative evidence.” 118 A New York federal court

made an observation which is especially pertinent here:

[W]hen deciding a recusal motion, the trial judge must
carefully weigh the policy of promoting public confidence in
the judiciary against the possibility that those questioning
his impartiality might be seeking to avoid the adverse
consequences of his presiding over their case. Recusal is
not warranted for reasons that are remote, contingent,

117 At oral argument the State indicated it is having trouble re-locating witnesses who
testified in this case. There is little reason to believe it will be able to find previously
unknown witnesses relating to the BVLS crime.
118 James Wm. Moore et al., Moore's Federal Practice § 63.60[1][b], at 62-63 (3d ed.

1999).

47
 or speculative and a trial judge should not recuse
himself on unsupported, irrational, or highly tenuous
speculation lest the price of maintaining the
appearance of justice be the power of litigants or third
parties to exercise a veto over the assignment of judges.
The pertinence of these considerations is heightened
when a disqualification motion is made in a litigation
that is not new, but has advanced considerably before
the judge in question. 119

In the same vein the Third Circuit wrote this year that “recusal is not

required on the basis of unsupported, irrational, or highly tenuous

speculation.” 120

In sum, the State asks me to recuse myself because I once had a

professional relationship and friendship with a witness who has no stake

in the outcome of this case. It does so even though I will not be called

upon to make any judgment about Captain Browne’s credibility. This

case is for all intents and purposes the same as United States v. Dandy

wherein the United States Court of Appeals held:

In this case, Judge Cleland was not called upon
to evaluate the credibility of Mowat [a witness
acquainted with the judge] because defendant
Dandy was tried by a jury. Furthermore, Mowat
was simply one of many government witnesses
and did not have a personal stake in the
outcome which might have influenced Judge
Cleland. 121

119 Busch v. City of New York, 2005 WL 2219309, at *7 (E.D.N.Y. 2005) (emphasis
added) (alterations omitted).
120 In re Filbert, 578 F. A’ppx., 79, 81 (3d Cir. 2014) (internal quotations omitted).
121 998 F.2d 1344, 1349-50 (6th Cir. 1993).

48
 g. Judge shopping

The lack of merit to the State’s argument suggests the possibility

that Captain Browne’s testimony has little, if anything, to do with why

the State wishes me to recuse myself. It is more than ironic that the

State was content for me to preside over this case during a hearing in

which I was called upon to make judgments about the credibility of the

witnesses, but now the State objects to my presiding over a trial in which

I will not be called upon to assess credibility. The State concedes that no

new facts have arisen which have caused its change of heart. What has

occurred is that I granted Wright relief. An informed observer could

therefore easily conclude that the State is motivated by the fact that I

have ruled against it on crucial issues; in other words, it is judge

shopping. This weighs heavily against allowing the State to withdraw its

waiver:

[A] litigant who is aware of a potential ground for
recusal should not be permitted to ‘sandbag’
that ground, hoping for a satisfactory resolution,
but retaining a ground of attack on the judge's
rulings. The concern, in a word, is judge-
shopping. 122

II. The reasons why I may not recuse myself.

In light of the lack of merit to the State’s motion, there is a

temptation at this point in the opinion to declare myself unbiased and

then recuse myself. I cannot do this. Harkening once again to the words

122 Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 976 F.Supp. 84, 87
(D.Mass.1997) (quoting El Fenix de Puerto Rico v. The M/Y JOHANNY, 36 F.3d 136, 141
n.6 (1st Cir. 1994)).

49
of Justice Scalia, “[i]f I could have done so in good conscience, I would

have been pleased to demonstrate my integrity, and immediately silence

the criticism, by getting off the case. Since I believe there is no basis for

recusal, I cannot.”123

Time and again the courts of this state and elsewhere have

emphasized the obligation of a judge to refuse unwarranted requests for

recusal. The Court of Chancery succinctly stated the principle:

The decision to recuse or disqualify must not be
made lightly, because to do so is contrary to the
Delaware Judges' Code of Judicial Conduct and
inevitably leaves the case as one of the recused
or disqualified judge's colleague's problems to
deal with, thereby invariably impinging on his or
her ability to address the many other matters
already pending on his or her docket. 124

In Desmond v. State Resident Judge Cooch explored in detail the history

of this so-called “duty to sit” and how that duty interrelates with the

other duties of judges who are faced with a motion to recuse. 125 I will not

gild the lily by repeating his work. For present purposes it is sufficient to

note his conclusion:

There remains an inherent “duty to sit” that is
integral to the role of a judge. Under this
approach, “[a] judge has as strong a duty to sit
when there is no legitimate reason to recuse as
he or she does to recuse when the law and facts
require.” In short, a judge's duty to recuse or
disqualify is complementary to, but not greater
than, his or her baseline duty not to recuse in

123 Cheney, 541 U.S. at 929.
124 Reeder, 2006 WL 510067, at *23.
125 Desmond, 2011 WL 91984, at *8-9.

50
 the absence of any objective basis. This principle
continues to apply in Delaware. 126

Our Supreme Court has expressed the same view about the burden

caused by recusals:

While we find no abuse of discretion in the
refusal to recuse in this case, we note that there
is a compelling policy reason for a judge not to
disqualify himself at the behest of a party who
initiates litigation against a judge. In the
absence of genuine bias, a litigant should not be
permitted to “judge shop” through the
disqualification process. The orderly
administration of justice would be severely
hampered by permitting a party to obtain
disqualification of a judge through the expedient
of filing suit against him. 127

This case perhaps stands as a paradigm of the needless waste of

judicial resources resulting from an unnecessary recusal. It dates back

to 1991, and was procedurally complex long before I issued Wright-2012.

Since then the case has grown in complexity. The docket sheet itself is

almost 90 pages long. It is not the procedural complexity alone which

will deplete judicial resources if I unnecessarily recuse myself. The

record in this matter is immense, consisting of more than 500 docket

entries, which includes thousands of pages of transcripts, motions, briefs

and opinions. One might think that a new judge need not be familiar

with the previous record when presiding over Wright’s second trial, but

the reality is that it will be essential for the judge to be intimately familiar

126 Id. at *9.
127 Los, 595 A.2d at 385.

51
with it. Both the State and Wright’s counsel have indicated that there

will be a considerable motion practice before trial. In the State’s view,

many of the defenses which might otherwise be available to Wright are

procedurally barred in his second trial because of events occurring over

the course of the 23 years since Wright was indicted. Although it

remains to be seen which prior rulings may, or may not be revisited, it is

inevitable that knowledge of the prior record will be required. Recusal

would require a new judge to spend literally hundreds of hours coming

up to speed on that voluminous and complex history.

There is a second policy reason why recusal is inappropriate here.

The Department of Justice is, of course, the branch of government

charged by our state constitution with responsibility for the prosecution

of alleged crimes. It is therefore vital that the public perceive that the

courts are independent of that agency. From our nation’s very beginning

an independent judiciary has been an essential part of our national

fabric. Indeed, one of King George’s “Injuries and Usurpations” set forth

in the Declaration of Independence was “He has made judges dependent

on his Will alone.” 128 This principle is no less important today than it

was 238 years ago. The Delaware Judges’ Code of Judicial Conduct,

which as the name implies governs the conduct of Delaware Judges,

states as a basic tenant that “[a]n independent and honorable judiciary is

128 The Declaration of Independence para. 10 (U.S. 1776).

52
indispensible to justice in our society.” 129 To this end the Code of

Judicial Conduct “is to be construed so as to not impinge on the

essential independence of judges in making decisions.” 130 The Code

requires that judges “be unswayed by fear of criticism.” 131 A judge may

therefore not use “disqualification to avoid cases that present difficult,

controversial or unpopular issues.” 132

The independence of the courts would be subject to serious and

legitimate questions if judges were to recuse themselves whenever faced

with a non-meritorious recusal request. This would create the specter

that “the price of avoiding any hint of impropriety, no matter how

evanescent, would grant litigants the power to veto the assignment of

judges.” 133 Judges must avoid creating the perception that a litigant can

manipulate the judiciary simply by filing a frivolous motion for recusal.

“Granting Plaintiff's Recusal Motion under these circumstances would

not only be wrong, but it would also undermine public confidence in the

judiciary, for the judiciary would appear easily manipulated by any

litigant who is prepared to claim that a court is biased, no matter how

speculative and fanciful the allegations.” 134 The need to avoid creating

such a perception is particularly acute when the meritless request for

recusal is made by the branch of government charged with prosecuting

129 Del. Judges’ Code of Judicial Conduct Rule 1.2(B).
130 Id. Preamble.
131 Id. Rule 2.4 (A).
132 Id. Rule 2.8.
133 In re Drexel Burnham Lambert Inc., 861 F.2d at 1315.
134 McCann v. Communications Design Corp. 775 F.Supp. 1506, 1533 (D.Conn.1991).

53
crimes. The appearance that a judge could be intimidated by such a

request for recusal would be disastrous to the public’s perception of the

independence of the judiciary and the fairness of our criminal justice

system. A judge is therefore obliged not to recuse himself under such

circumstances:

A judge must “carefully weigh the policy of
promoting public confidence in the judiciary
against the possibility that those questioning her
impartiality might be seeking to avoid the
adverse consequences of her presiding over their
case. Indeed, the public interest mandates that
judges not be intimidated out of an abundance
of caution into granting disqualification motions:
A trial judge must be free to make rulings on the
merits without the apprehension that if he
makes a disproportionate number in favor of one
litigant, he may create the appearance of bias,
and a timid judge, like a biased judge, is
intrinsically a lawless judge. 135

Despite my reference to the Declaration of Independence, I do not

view this matter as some sort of intra-governmental clash of historic

dimension. Far from it. Still, it is impossible to fathom how my recusal

in the face of this motion would not seriously erode the confidence of an

informed observer in the independence of the judiciary.

I wish to conclude this opinion with a word about the two

attorneys who filed the motion for recusal. I believe it is fair to say that

this case is one of high profile and has generated at least some public

135 United States v. Hammond, 2013 WL 637007, at *4 (S.D.N.Y. Feb. 21, 2013
)(alterations and internal quotations omitted).

54
interest. Moreover, the friends and loved-ones of Philip Seifert, who was

ruthlessly murdered that cold January night, are entitled to know why I

will continue to sit on this case. I have therefore described the flaws in

the moving party’s request in more detail than I might have otherwise

have set out. Unfortunately, this might be viewed by the uninformed as

a criticism of the Department of Justice and the Deputy Attorneys

General who authored the motion or as personal pique on my part. This

opinion was never intended as such. Twenty years ago I had the

privilege of authoring a chapter on the history of the Department of

Justice which was included in The Delaware Bar in the Twentieth

Century. In that chapter I wrote

As the century draws to a close . . .increasingly
sophisticated legal considerations have become
intertwined in virtually every facet of day-to-day
activities of state government. Our state has
been fortunate to have had the services of
attorneys general and the men and women who
served under them, whose skill, dedication,
willingness to sacrifice and plain hard work have
made Delaware a better place. 136

In my six years on the bench I have developed even more respect for the

Department’s attorneys and its leaders. This holds true for the attorneys

who filed the instant motion.

136The Delaware Bar in the Twentieth Century, at 187-88 (The Delaware State Bar
Association 1994).

55
 For the foregoing reasons, the motion for recusal is DENIED.

____________________________________
John A. Parkins, Jr.

Dated: December 16, 2014

56