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. Ta ylor, 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

– Attorney s for Defendant.2 The State h as filed a motion asking me to recuse myself 1 which

Defendant Wright opposes
. The State’s motio n primarily rests on two
arguments. First, it points to my 2 statements (made in the context of judicial proceedings) that I had little or no confidence in the verdict in

this case. Its argument overlooks entirely two fundamental principles enunciated by the Delaware Supreme Court concerning judicial recusal.

Further the State overlooks that the Delaware Supreme Court has agreed with my conclusions which, according to the State, require my recusal.

Second , the State contends that I should recuse myself b ecause 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 a nd 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
m y 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 c an 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 t he 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 th is case. Y ears later, after I granted Wright relief, the State has had second thoughts . E ven though no new
facts have arisen since its waiver, it has reversed course and now a sks

me to now recuse myself

. Its request is barred by its waiver. But, e ven 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 even ts, 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 . Howev er, 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. Arizona 5 and because exculpatory evidence had been withheld from him in

violation of Brady v. Ma r yland. 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 ma ke 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 g ermane 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 reinsta ted 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 Wright

2014 .) 8

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

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

. Analysis

I. The s tandard to be applied.

Ground zero of any recusal analysis 9 is Rule 2.11 10 of the Delaware Judges’ Code of Judicial Conduct . Th is section specifies , in

non

- ex clusive terms , circumstances requiring a judge to recuse

himself. 11 The State agrees that none of th ose specific circumstances

8 Wright v. State, 91 A.3d 972 , 995 (Del. 2014).
9 Reeder v. Del. Dep’t of Ins ., 2006 WL 51 0067 , 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 mistake nly cited and quoted at length former Rule 3(c) (1), which was modified and re

- codified several years ago. At oral ar gument 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 spous e 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 th e 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 mat ter 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 practic e 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 a n 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 s hould not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated i n the record of the proceeding.7 apply here. 12 Instead it argues that a general catch all 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 ”

— requi res 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 whic h 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 t he 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 anal ysis. 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 asid e, 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 t hat 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 th e trial judge engaged in the subjective test and will review the merits of the objective

test.” 18

I n 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 t he 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 ca n 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 litig ation have I been biased against the Stat e. Indeed (a lthough 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 circumstance s of the case, would conclude that a fair and impartial hearing was unlikely.

In Fritzinger v. State t he 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 dete rmine 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 effe ct, a ruling that the first or ‘subjective’ prong of the Los recusal [sic] precludes his participation in the m atter.” 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 de scribed the objective observer as “ reasonable person [who] knows and und erstands 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 partial ity i s . . . 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 declin ing 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, Just ice 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 addre sses by the courts. Tr. at 3 . To the contrary , s cores 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 obser ver” 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

. , 8 61 F.2d 1307, 131 3 (2 d Cir. 1988) (emphasis added). 24 Pepsico, Inc . v. McMillen , 764 F.2d 458, 460 (7 th Cir. 1985). 25 Microsoft Corp. v. United States , 530 U.S. 1301 , 1302 (2000) (mem., Rehnquist, C. J.)

. 26 Cheney v. United States. D ist. Court for D.C. , 541 U.S. 913 , 923 (2004)(m em., 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. T o the

ex tent 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 profess ional relationship and friendship with
Captain William Browne of the Wilmington Police D epartment. 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

so me 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 D rexel Burhnam Lambert Inc. , 861 F.2d at 1314. 28 At oral argument t he State labeled this argument as “being of much greater significance” than its argument about my friendship and former professional relationshi p with a witness. Tr. at 31.12 Before considering principle contentions expressed in the State’s

motion , however, I w i ll address an implied argument which perme ates 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 c onfession 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 c onvey 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. T he S tate 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 t hat 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 m otion. 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 tha t 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 m ight 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 .” Th is in turn might

lead the observer to infer tha t 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, i n a portion of his 2009 amended petition

-- titled “The Admission of Mr. Wright’s A lleged 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 M r. Wright that he had a consti tu t ional right to the appointment of counsel if he could not afford one, Detective Mayf ield 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 fundament ally altered the nature of Mr. Wright’s constitutional right to counsel . . . . 31

When the Supreme Court wrote that I “decide d 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 iss ue.
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. a t 42.15 I realize that by writing this I risk appearing to be obdurately clinging to the view that Wright’s Miran da 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 Wrig ht

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

invented a reason for him. 33

b. My comments that I lack ed 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

. T he State contends in its principal argument 34 here that my assessments of the evidence show that “an objective observer would surely conclude that [my] fair and impartial consideration [of future issues] is unlikely.” 35 The State

33 After Wright’s conviction was vacated and the matter remanded I wrote a letter to counsel about scheduling. D.I. 494. The State asserts I “once again sua sponte raised the issue of the admissibility of the Defendant’s confession, at least impli citly, 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 Rul e 61(i)(4), wh ich applies to motions for post conviction 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 l east a plausible argument t hat the reason why the Supreme C ourt 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 challeng e 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 a lso overlooks the fact that the Delaware Supreme Court expressly agreed with my conclusions.

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

. The analysis must start , of course, with a consideration of my statements which the State claims manifest bias on my part. As already

mentioned , those statements stem from my rulings that I lacked

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

constitutional standards established by the United States Supreme Court and followed by the Delaware Supreme Court , and the Delaware Supreme Court expressly agreed with my lack of confidence in Wright

2014

. 36

a. The statements which allegedly show bias. Although the State re fers in its motion to my “repetitive and public

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

statements I made from the bench:

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

36 91 A.3d at 994. 37 Motion, ¶18. The Sta te’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
neve r 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 argu es that , “despite the Defendant’s videotaped confession to

the murder , ” these stateme nts 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 confessi on 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 info rmant 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

accura te:

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 po int 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, plea se. 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 conten ds that in effect I expressed an opinion that Wright is innocent . An informed observer would k no w
better : i n 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 actuall y 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. Disinteres tedness 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 favo rable 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 (2 d 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. State 51 the Delaware Supreme Court explained the law this way: The United States Supreme Court expanded the definition of materiality in Kyles v. Whitley. In Kyles, the Court held that materiality does not req uire 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 t rial , 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 r eached.

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 t rial. 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 I d. 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 tru stworthiness 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. Stateme nts 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 neve r 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 agains t 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 t hat 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 disquali fication 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 4 782464 , 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 Uni ted 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 St ate 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 ba sis 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 r ule was described by this court in 2011 :

56 Leslie W. Abramson, Judicial Disqualification under Cannon 3 of the Cod e of Judicial Conduct , at 25 (2 d 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 mus t 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 c laim, 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 b ias or prejudice stemming from ‘an extrajudicial so urce’ 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 learn ed 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; a t 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 C o urt first postulated the rule in Los it cited to the United States Supreme Court’s decision in United States v. Grinell 61 for the proposition that a party seeking recusal because of a judge’s opinions

must show an extrajudicial source for those opinions. 62 But after the Delaware Supreme Court’s opinion in Los , the United States Supreme

Court revisited its holding in Grinell

. I n Liteky v. United States , the Court

2001 ) (the alleged bias or prejudice must be based on information that the trial judge acquired fr o m 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 othe r 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 so urce 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 Litek y C ourt , 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 ju dicial rulings (even if they are incorrect) are not grounds for recusal absent “knowledge acquir ed outside [judicial] proceedings , ” or a “deep

- seated and unequivocal antagonism that would render fair judgment impossible.” 65 Liteky did not in volve an interpretation of the Federal C onstitutio n and therefore is not binding on state courts

. 66 Although t he 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 t he Delaware Supreme Court took not e of the

shift in Liteky :

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

seated favoritism or antagonism that would make

63 510 U.S. at 556. 64 Id. at 555

- 56. 65 Id. at 556.
66 Liteky involved interpretation of 28 U.S. C. § 455 , whi ch 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
s traightforward 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 c ould be understood as an endorsement of Liteky’s extrajudicial factor analysis

. But other language in Gattis suggests t he
opposite is true. T he Gattis court reiterated that “[u] nder the objective portion of the test, for the judge to be disqualified, the alleged bias or prejudice of the judge must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. ” 68 Since Gattis , the Delaware
Supreme Court 69 and the lower courts 70 have on multiple occasions

67 955 A.2d at 1284 (emphasis in origin al 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 recus al was therefore not required”). 70 BAC Home Loans Servici ng 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.” ) (alteration26 opined, without exception, that the absence of an extrajudicial source precludes t he finding that recusal is required. Whether Delaware still adheres to the extrajudicial source rule (as opposed to factor ) is large l y an academic question here because, under either standard, the State has failed to make a showing that my

recu sal 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 theor y, for all intents and purposes, the State’s concession is still the end of the story . T he State has not

shown a “ deep

- seated favoritism or antagonism [on my part] that would make fair judgment i mpossible

. ” First , as discussed above, t he 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 gratuitou s. 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 s ource 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 alle ged 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 h arbored deep

- seated bias or antagonism against the State.

In sum , t his 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
e vidence, 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 i n 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 a n 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, c annot 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 tha t 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 t hemselves. 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

cont ext 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 ; t hat case had nothing to do with whether the context of a judicial st atement

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 T he 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 point ing out that judicial rulings, in and of themselves, seldom disclose the existence of an extraj udicial 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 re liance 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 (10 th Cir. 2001) (in ter nal 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 show s some “deep

- seated favoritism o r 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 fel onies 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 hav e an

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

o f 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 fri endship 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 Wi lmington Police D epartment 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 reason s why that relationship does not require my rec usal

. First, C aptain Browne has no stake whatsoever in the outcome of

W right’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 investigat ed
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 nam ed as a defendant in a

82 The Smith case was tried before a f ederal 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 professiona l. 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 quickl y 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 mee ting at a funeral

in October 2011 , when w e 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. T he role of Captain Brown e ’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 war rant 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 Br owne 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

ma y 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 atte mpted 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 in volved 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 app arently 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 dis puted. Neither side disputed his testimony at the Rule 61 hearing , and the State has not pointed to any new facts in its motion to sug g est that his testimony will change at trial.

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

. There are se veral reasons why Captain Browne’s participation as a

witness do es 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 th e court I inherited this case f rom 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 a ny role in these proceedings. It

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

witness . B y then I had inv ested considerable time familiarizing myself

with the file . Upon learning of th e 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 up on his

credib ility if called upon to do so

. I in i tiated a discussion with counsel

about whether my recusal was necessary. Defendant’s counsel asked me35 not to recuse myself, but t he State initially felt I should do so. I

demurred at the time , telling cou nsel 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 a n on

- the

- record teleconference , counsel for the State told the

court : I think we just ha ve, 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 wit h Wright . D uring 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 advi se Wright personally of my relati onship 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 re cusal

. A t 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 und er Delaware law are quite ex acting. 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 t he 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
mus t know of the requirement or condition, and (3) that the waiving party must intend to waive that requirement or condition. 88

All of the se requirements are satisfied here. It is undisputed that the State knew that it had a right to seek my recusal, knew o f 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) (intern al alterations, footnotes, and quotations omitted)

.37 Judicial Conduct provide s that the parties may wa ive 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, af ter 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 proceedin g. The agreement shall be incorporated in the record of the proceeding. 89 The State agrees that (a) I disclo sed on the record the basis of disqualification; (b) it s counsel had an opportunity several days, in fa ct to confer outside of [my presence]; and ( c) all agreed on the record that I should not be disqualified. I conclude, therefore, that the Sta t e’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 wa iver 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 per sonal 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

- tria l 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 wai vers
. 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 resourc es to resolution of the matter s raised in

that case. A s 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 with drawal 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 (8 th Cir. 2003); United States v. Bayless, 201 F.3d 116 (2 d 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 Br owne 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 n ew 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 conce des that no new facts have come to light about Captain Browne’s rol e in this matter

. In its motion the State sought to explain why it now believes Captain Browne’s role is somehow more significan t than it was when it waived the conflict: The importance of Capt. Browne as a trial witness is now obvious, albeit only in hin dsight. [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] Obv iously, 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 a ll of these matters were either known or readily apparent at the

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

92 State’s Mot

. for Recusal, ¶ 16 (italicized numbers added).40 corre spondingly 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 m ost 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 c oncedes 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 unknow n to the State at the time of its waiver. More to the point perhaps, the State concede d at oral argument that it was
awa re 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 unti l 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 th e 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 C ourt’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 any thing

in t he 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 se cond

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’ testim ony. Consequently, when a disqualification motion alleges no more than friendship between a judge and a witness, the court will usually deny the motion

. 101

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

— the latter of which is certainly more problematic than friendship with a

witness

— does not by itself require the judge to recuse himself. “ Many courts therefore have held that a judge need not disqualify himself just

because a friend

— even a close friend

— appears as a lawyer , ” 102 let alone

a mere witness. The Tenth Circuit’s opinion in David v. City and County of Denver 103 illustrates the point. In that case , the judge was presiding in a civil rights case against a police chief a nd a number of police

officers. 104 The judge had previously represente d the chief some twenty years before and the judge also knew several of the law enforcement

101 Richard E. Flamm, Judici al Disqualification: Recusal and Disqualification of Judges § 8.2 (2 d 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 (7 th 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 m urder 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 reasonablenes s 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 a void impropriety, determined from an i nformed, 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 conclu de 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 w hen 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 cit ed any authorit y 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

substitut ing unsupported anecdotal statements from the two Deputy

Atto rneys 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 inciden tal 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 un aware of a single instance in which a judge recused because of a friendship with a

witness. The other “undersigned prosecutor” had considerably m ore

109 Lawrence v. Bloomfield Twp. , 313 F. A’ppx. 743, 79 (6 th Cir. 2008 )

. 110 Che ney , 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 witho ut 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 “impea ch 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, give n that neither side disputed that testimony during the Rule 61 proceedings. A n informed reasonable observer would realize that a witness who has no stake in litigation would care not one whit about evidentiary rulings made during h is 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 t rial 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 cauti on. 113 State’s Mot. for Recusal, ¶ 16

. 114 Id. ¶ 1746 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 subject ive 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

. A nother reason why my recusal is not called for here is that I will

not be c alled 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

up on to p ass judgment on Captain Browne’s credibil ity. 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 judgment47 against Captain Browne’s conclusion that Wright was not the perpetrator of the BVLS crime, then

• I would ha ve 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 th e BVLS attempted robbery. The State tried and was unable to develop such evidence 22 years ago when Wright was first tried. T here 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 t rial 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 pertinen ce 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 i s 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 ca lled 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 ha ve influenced Judge Cleland. 121

119 Busch v. City of New York , 2005 WL 2219309 , at *7 (E.D.N.Y. 2 005) (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 ha ve 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

h ave 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 grou nd, hoping for a satisfactory resolution, but retaining a ground of attack on the judge's rulings. The concern, in a word, is judge

shopping. 122

II. The reasons why I may not recuse myself

. In light of the lack of merit to the State’s motion, there is a
tempta tion 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 integri ty, 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 f or
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 re cused 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 h istory

of this so

- called “duty to sit” and how that duty interrelates with the other duties of judges who are face d 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:

T h ere 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 a bout 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 lit i gant should not be permitted to “judge shop” through the disqualification process. The orderly administration of justice would be severely hampered by pe r mitting 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 199 1 , 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 2 3 years since Wright was indicted. Although it remains to be seen which prior rulings may, or may not be revisited, it is

ine vitable 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 her e. 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 agenc y. 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 honora ble judiciary is

128 The Declaration o f 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
requir es 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 question s if judges were to recuse them selves 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 th e 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
. 7 75 F.Sup p. 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

- one s 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 d escribed 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 m otion 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 D epartment of

Justice which was included in The Delaware Bar in the Twentieth
Century

. In t hat 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