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.
2

The State has filed a motion asking me to recuse myself1 which

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

arguments. First, it points to my2 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).
3

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.
4

obtained in violation of Miranda v. Arizona5 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).
5

• 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 Wright2014.)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 analysis9 is Rule 2.1110 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:
6

 

(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.
7

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.
8

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.”).
9

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).
10

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.).
11

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.
12

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.
13

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.
14

[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.
15

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 argument34 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.
16

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 Wright2014.36 

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 exclusively38 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.
17

[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).
18

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.
19

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).
20

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

is routinely applied in the Delaware courts. In Atkinson v. State51 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.
21

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”). 
22

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. 
23

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. Grinell61 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.
24

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 deepseated 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.
25

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 Court69 and the lower courts70 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 
26

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.
27

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.
28

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.
29

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).
30

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.
31

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.
32

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.
33

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.
34

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 
35

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.
36

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).
37

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.
38

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.”).
39

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).
40

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.
41

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.
42

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 Denver103 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.
43

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).
44

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).
45

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
46

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
47

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).
48

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).
49

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 judgeshopping.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)).
50

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.
51

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.
52

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).
53

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). 
54

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).
55

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. 

 136 The Delaware Bar in the Twentieth Century, at 187-88 (The Delaware State Bar 

Association 1994).
56

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

____________________________________

John A. Parkins, Jr.

Dated: December 16, 2014