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denying motion for recusal and seventh motion for postconviction relief
Summary of this case from Desmond v. StateOpinion
I.D. No. 91009844DI.
Submitted: October 6, 2010.
Decided: January 5, 2011.
Upon Defendant's Motion for Recusal. DENIED.
Upon Defendant's Seventh Motion for Postconviction Relief. SUMMARILY DISMISSED.
Steven P. Wood, Esquire and Paul R. Wallace, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorneys for the State.
Christopher R. Desmond, Smyrna, Delaware, pro se.
MEMORANDUM OPINION
INTRODUCTION
Christopher R. Desmond ("Defendant") has filed his seventh motion for postconviction relief, together with a "Motion for Recusal" of the undersigned judge. It is manifest on the face of Defendant's moving papers that all of his claims for postconviction relief are procedurally barred. Similarly, Defendant has made no showing of bias or prejudice that would warrant this judge's disqualification or recusal.
Given the foregoing, in no sense is this Court's decision to deny Defendant's motion for recusal anywhere near a close call. Nonetheless, this Court has elected to address Defendant's motion for recusal at some length in order to summarize the law in Delaware regarding judicial recusal and disqualification, with particular emphasis on the factors underlying a judge's decision to recuse or disqualify.
II. FACTUAL AND PROCEDURAL HISTORY
On November 9, 1992, Defendant was convicted in Superior Court, following a jury trial, of ten counts of Robbery in the First Degree, ten counts of Possession of a Deadly Weapon During the Commission of a Felony, two counts of Conspiracy in the Second Degree, three counts of Possession of a Deadly Weapon by a Person Prohibited, three counts of Theft, and one count of Escape in the Third Degree. These convictions stem from a series of five armed robberies of supermarkets and grocery stores in New Castle County occurring between December 1990 and October 1991. Defendant's convictions were affirmed on direct appeal to the Supreme Court of Delaware.
See State v. Desmond, 654 A.2d 821 (Del. Super. Ct. 1995); Superior Court Criminal Docket.
Desmond, 654 A.2d 821.
Id.
Over the years, Defendant has filed a plethora of motions in Delaware state courts for postconviction relief and recusal of the undersigned judge, and motions in federal court for habeas corpus relief. Defendant's first motion for postconviction relief was based on nine grounds: 1) he was denied his constitutional right to proceed pro se at trial; 2) he was denied effective assistance of counsel; 3) the State had a duty to preserve certain exculpatory evidence; 4) allowing certain robbery charges to go to the jury based upon a single theft violated the double jeopardy clause; 5) the trial judge's ex parte communication with a juror was error; 6) the State failed to establish that a deadly weapon was used in any of the robberies; 7) evidence was unlawfully seized and not suppressed; 8) adequate "notice" was not given as to whether he was being charged with felony theft; and 9) the police engaged in suggestive photographic identification.
Defendant's claim for habeas corpus relief was dismissed as without merit. Desmond v. Snyder, 1999 WL 33220036 (D. Del. 1999). His claim for a certificate of appealability, to appeal the District Court's denial of Habeas Corpus relief, was similarly denied. Desmond v. Snyder, 2000 WL 17265531 (D. Del. 2000).
Desmond, 1995 WL 717628 at *1.
This Court denied Defendant's first motion for postconviction relief. This Court found that Defendant's contention that he was denied the right to proceed pro se was merely a "conclusory and unsubstantiated" claim that will not be addressed in Superior Court Criminal Rule 61 motions and, moreover, Defendant did not show cause as to why this issue was not raised in direct appeal nor did Defendant demonstrate prejudice. With respect to Defendant's claims of ineffective assistance of counsel, this Court found that Defendant did not satisfy either prong of the two-fold test set forth in Strickland v. Washington; thus, this claim was without merit.
Id.
Id.
Id. (citing Strickland v. Washington, 446 U.S. 668 (1984)).
Defendant's claim that the state failed to preserve exculpatory evidence was not raised on direct appeal and as result was procedurally barred by Rule 61(i)(3). Similarly, Defendant's double jeopardy claims were not timely raised, nor did he make the requisite showing of cause and prejudice.
Id. at *3.
Id.
With respect to Defendant's claims regarding the trial judge's ex parte communication with a juror, the state's alleged failure to establish Defendant's use of a deadly weapon during the commission of the crimes, and the introduction of unlawfully seized evidence, these issues were argued and resolved by the Supreme Court of Delaware on Defendant's direct appeal. Finally, Defendant's claims that he was not given adequate notice that he was being charged with felony theft were not raised on direct appeal nor was cause shown, and Defendant's argument that suggestive identification procedures were utilized was a conclusory and unsubstantiated claim. Accordingly, Defendant's first motion for postconviction relief was denied by this Court.
Id.
Id.
This Court's decision denying Defendant's second motion for postconviction relief was affirmed by the Supreme Court of Delaware. The Supreme Court held that Defendant's claims that he was denied the right of self representation and that his motion was improperly denied on procedural grounds were without merit because "the issues presented on appeal are controlled by settled Delaware law, and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion." The Court noted that Defendant's claims were procedurally barred because 1) they were not raised in the proceeding leading to the judgment and Defendant had not shown cause for relief; and 2) his claims were previously adjudicated in the first motion for postconviction relief, and Defendant had not shown that reconsideration was warranted in the interests of justice.
Desmond v. State, 768 A.2d 468 (Del. 2001).
Id.
Id.
Defendant's third motion for postconviction relief was similarly denied. Therein, Defendant again alleged that he was denied his constitutional right to self representation, he received ineffective assistance of counsel, and there was "improper and suggestive" photographic identification by the police. Although these claims had been previously reviewed and denied by this Court and the Supreme Court of Delaware, Defendant included a "fundamental fairness" argument to attempt to trigger Rule 61(i)(5) and to avoid the procedural bars that would otherwise attach to the earlier rulings. Defendant also included an allegation that the undersigned judge could not decide the motion because of "bias," apparently based on this judge's earlier rulings. Because all of Defendant's claims were previously argued and decided and Defendant could not demonstrate an exception to the procedural bars of Rule 61, this Court denied Defendant's third motion for postconviction relief. Further, to the extent Defendant alleged bias on the part of the undersigned judge, this Court noted that the Supreme Court of Delaware denied Defendant's petition for a Writ of Habeas Corpus, and the petition contained an allegation of "bias at trial [by the undersigned judge, which] deprived. . .[Defendant] of due process." Thus, "[b]y thereafter ruling that Defendant's appeal was without merit, the Supreme Court (at least implicitly) found that this judge was not biased such that he cannot now consider the current motion for postconviction relief."
State v. Desmond, 2002 WL 31814550 (Del. Super. Ct. 2002) aff'd, 818 A.2d 970 (Del. 2003) (holding that Defendant's motion was time-barred and all of his claims were procedurally barred.).
Id.
Id.
Id.
Id. (citation omitted).
Id.
Defendant's fourth motion for postconviction relief claimed "fundamental error-fraud" in that there was alleged improper influence of a juror to vote for his conviction and, yet again, a claim for denial of his constitutional right to self-representation. Although the substance of Defendant's claims was again procedurally barred, Defendant "recast his argument in light of the fundamental constitutional violation exception and the 'miscarriage of justice' exception contained in Rule 61(i)(5) and also a violation of the Delaware Lawyer's Rules of Professional Conduct, 3.8(b)(c)(d)." This Court held that
State v. Desmond, 2004 WL 838854 (Del. Super. Ct. 2004), aff'd, 854 A.2d 1158 (Del. 2004) ("The Superior Court did not err in concluding that the claims raised in [Defendant's] fourth motion for postconviction relief were procedurally barred by Superior Court Criminal Rule 61(i)(1), (2), and (4) and that [Defendant] had failed to overcome these procedural hurdles."). Prior to Defendant's fourth motion for postconviction relief, Defendant initiated a federal civil rights lawsuit against numerous judicial officers and attorneys, including the undersigned judge. Complaint, Desmond v. Brady, et al., CA No. 91009844DI (D. Del. Nov. 18, 2003).
State v. Desmond, 2004 WL 838854. This Court also noted that the fundamental constitutional violation exception alleged by Defendant in his fourth motion was distinct from his prior attempt to avoid the procedural bars of Rule 61, as he argued the "fundamental fairness" exception in his third motion for postconviction relief. Id. n. 2.
[t]he fundamental constitutional violation exception and the "miscarriage of justice" exception contained within Rule 61(i)(5) do not apply here because Defendant's claims are procedurally barred under the "former adjudication" bar of Superior Court Criminal Rule 61(i)(4) and Defendant does not qualify for the 'interest of justice' exception to that rule; that exception has been "narrowly defined to require the movant to show that the trial court lacked the authority to punish or convict him."
Id. at *2 (citations omitted).
Accordingly, this Court denied Defendant's motion because: 1) the claims had been previously ruled upon; 2) the motion was filed ten years after the conviction became final; 3) the motion contained grounds for relief not asserted in prior postconviction proceedings; and 4) Defendant could not demonstrate any exceptions to the procedural bars contained in Rule 61(i). This Court also noted Defendant's "pattern of reasserting past claims by couching the claims in slightly different language in an attempt to preserve the appearance that the claim has not been previously adjudicated and is not procedurally barred by Rule 61(i)."
Id.
Id.
Defendant's fifth motion for postconviction relief claimed that the Supreme Court of Delaware's holdings in Walton v. State and Word v. State created a "newly recognized right" to reduce five of his convictions for Robbery First Degree to Robbery Second Degree. Defendant alleged that the definition of what constitutes "displays" a deadly weapon for purposes of first-degree robbery was altered by virtue of the Walton and Word holdings. This Court held that neither Walton nor Word was applicable to Defendant's case, as several victims observed Defendant with a handgun during the course of the robberies, and the Walton and Word holdings were directed only at those situations where no weapon was physically manifested and Defendant "only alluded to, or implied that he or she was armed." Thus, there was no newly recognized right that would toll the procedural bar contained in Rule 61(i)(1), and that Defendant's claim would fail in any event because "a mere physical appearance [of a weapon] will suffice [to satisfy the requirements for first-degree robbery.]" Accordingly, Defendant's fifth motion for postconviction relief was denied.
821 A.2d 871 (Del. 2003).
801 A.2d 927 (Del. 2002).
State v. Desmond, 2005 WL 578816 (Del. Super. Ct. 2005) (citations omitted), aff'd, 873 A.2d 1079 (Del. 2005) ("[The Supreme Court of Delaware] has considered the [State's] motion to affirm pursuant to Supreme Corut Rule 25(a) and finds it manifest on the face of [Defendant's] opening brief that the appeal is without merit for the reasons stated by the Superior Court in its well-reasoned decision dated February 28, 2005."). Approximately two weeks after this Court denied Defendant's fifth motion for postconviction relief, Defendant filed a "motion for correction of an illegal sentence." State v. Desmond, 2005 WL 1653983 (Del. Super. Ct. 2005). This motion was denied on May 13, 2005. Id.
State v. Desmond, 2005 WL 578816 (citations omitted).
Id. Notably, Walton v. State has since been overturned by statute. See State v. Muhammad, 2004 WL 1965984, *4 (Del. Super. Ct. 2004) ("The [2003 Amendment to the robbery statute, 11 Del. C. § 832(a] changed subsection (2) and was in direct response and overturned the Supreme Court's decision in Walton v. State. . . .")
State v. Desmond, 2005 WL 578816 (citations omitted).
Defendant's sixth motion for postconviction relief argued that this Court had inconsistently applied the procedural bars of Rule 61(i) in previous cases, and the State "intentionally withheld evidence," specifically, the identities of informants who provided police with information about Defendant. Defendant cited the cases of State v. Keith and State v. Lawrence, both being cases before this Court wherein a pending motion for postconviction relief was resolved prior to this Court issuing a decision. In both cases, each defendant pled guilty to Robbery First Degree, but were permitted to withdraw their guilty pleas and be sentenced to a lesser crime due to a substantive change in the elements of Robbery First Degree; Defendant alleged this was a violation of the rule of law that requires a court to consistently apply the procedural bars of Rule 61.
State v. Desmond, 2006 WL 2221005 (Del. Super. Ct. 2006), aff'd, 937 A.2d 139 (Del. 2007) ("The [Supreme Court of Delaware] agrees with the Superior Court that reconsideration of [Defendant's] claims is not warranted in the interest of justice, on the basis of a constitutional violation, or on the basis of a newly recognized retroactively applicable right."). Further, the Supreme Court of the United States subsequently denied Defendant's Petition for Writ of Certiorari. Desmond v. Del., 552 U.S. 1263 (2008).
Id. (citation omitted).
Id.
This Court found no merit in Defendant's argument. Procedurally, Defendant's motion far exceeded the time limitation for filing. Substantively, stare decisis was not implicated because no judicial opinion was issued in Keith or Lawrence with regard to the merits of their respective Rule 61 motions; the resolution of those cases was the result of negotiation between the State and defense counsel. Further, the defendants in Keith and Lawrence were affected by the amended "display" element of Robbery First Degree; as decided in Defendant's fifth motion for postconviction relief, the evolving definition of "display" had no affect on the merits of Defendant's conviction.
Id. at *3 ("[U]nder the doctrine of stare decisis, the outcomes of both Keith and Lawrence are not dispositive here as there was no judicial opinion issued by this Court on the merits of the respective motions.").
Id.
With respect to Defendant's claim that the State intentionally withheld evidence, this Court found that "[t]his is effectively a Brady claim and it appears that defendant raises it for the first time here." To prevail, Defendant was required to show "some external impediment" that prevented him from raising the claim and that he was prejudiced in that the outcome would have been different had the issue been previously raised. Although Defendant alleged that the information only came to his attention "within the past few months," he did not articulate why it had only just come to his attention; consequently, the "cause" prong was not met. Moreover, Defendant did not set forth an adequate basis for relief under the "miscarriage of justice" standard, as he did not demonstrate that the information would have changed the outcome of the trial. Accordingly, Defendant's sixth motion for postconviction relief was denied.
Id.
Id.
Id. Additionally, the court noted that existing case law "support[ed] the notion that Defendant would not have been entitled to the information had it actually been asked for during trial." Id. (citation omitted).
Id. at *3.
Id.
Defendant subsequently filed a "Motion for Disqualification" of the undersigned judge. Defendant alleged that the undersigned judge's "prejudgment" and "questioned neutrality" amounted to violations of his Due Process and Equal Protection rights. By letter opinion dated June 24, 2010, this Court denied Defendant's motion, finding it to be without merit.
Def.'s May 12, 2010 Mot. for Disqualification.
Id. at 3.
State v. Desmond, Del. Super., C.A. No. 91009844DI, Cooch, R.J. (June 25, 2010) (Letter Op.). Defendant appealed this decision, and the Supreme Court of Delaware dismissed the appeal because "[t]he denial of a motion for recusal of a judge is not a final, appealable order." Desmond v. State, 5 A.3d 629 (Del. 2010).
III. DEFENDANT'S CONTENTIONS
Defendant has now filed his seventh motion for postconviction relief, together with a "Motion for Recusal." In the instant motion for postconviction relief, Defendant asserts two grounds for Rule 61 postconviction relief: 1) "movant is entitled to the Cooke decision [because] Defendant was denied counsel altogether;" and 2) the "trial court lacked jurisdiction to convict movant of (8 counts of Robbery First Degree). . .[b]ecause movant only committed one theft the movant could only be convicted of one First Degree Robbery in the Shoprite and Thriftway Robberys [sic]."
Def.'s Oct. 6, 2010 Mot. for Postconviction Relief; Def.'s Oct. 6, 2010 Mot. for Recusal.
Def.'s Oct. 6, 2010 Mot. for Postconviction Relief at 3. For an explanation of how Defendant's case is allegedly similar to the facts in Cooke, see infra pp. 17-18.
Defendant's separate motion for recusal seeks "an order from the trial judge to recuse himself from the enclosed proceedings, given the probability of unfairness [the trial judge] has shown in the past decision involving defendant Desmond." Based on this, Defendant argues that he is entitled to recusal under the Due Process Clause of the United States Constitution; Defendant further contends that "[the trial judge] is highly unlikely to acknowledge that he is bias [sic], and discovery is almost always unavailable to substantiate the existence of judicial bias."
Def.'s Oct. 6, 2010 Mot. for Recusal.
Id.
Defendant stated his allegations as follows (errors in original):
In prior filing [the trial judge] has failed to follow the Delaware Supreme Court's decision in Watson v. State, 934 A.2d 901, 905-06 (Del. 2007) which requires a trial judge to start "Fresh" in assessing evidence from a previous decision-trial. Id. at 905. On or before Nov. 19, 1992 Desmond filed a Superior Court Criminal Rule 29 motion claiming he was entitled to Dismissal of the indictments because the State failed to prove the elements of Robbery First Degree as defined by 11 Del. C. 832. . .[the trial judge] ignored the motion.
Desmond raised the issue at trial, and [the trial judge] denied his pro-se motion citing Ross v. State, No. 514, 1988 560 A.2d 491, Moore, J. (Feb. 23, 1989). Claiming "Theft" is not an essential element of Robbery First Degree. Thereafter allowing Desmond's First Degree Robbery convictions to stand contrary to the evidence of multiple victims being bystanders, as their testimony clearly indicated "Nothing was taken from me" "I stood there." Given [the trial judge's] record, he recorded these objections by Desmond in prior proceedings and still sided with the State contrary to the evidence and Law which required he reverse his trial and post-trial decisions.
* * *
Any reasonable observer would conclude [the trial judge] is bias against Desmond, Desmond has filed (1) Judicial complaint against [the trial judge] and at least Two prior Recusal motion's, and filed at least one § 1983 action claiming [the trial judge] is "a tool for the attorney General's office." So its just human nature for a judge to be biased against Desmond given their history. Moreover, [the trial judge's] prior pro-state bias decisions in State v. Desmond. In Withrow v. Larkin, 421 U.S. 35, at 47 (1975) ("experience teaches that the probability of actual bias on the part of the judg — is too high to constitutionally tolerable" in cases in which the judge "has been the target of personal abuse or criticism from the party before him.") Desmond, has criticized [the trial judge] before his court and every other court in public documents about his bias and unfounded court decisions in Desmond. Which under the due process clause bars [the trial judge] from hearing any further proceedings in Desmond v. State. Taylor v. Hayes, 418 U.S. 488, 501 (1974).
Defendant's motion for postconviction relief, while not entirely clear, apparently seeks to avoid the procedural bars of Rule 61(i) on three grounds: 1) the numerous former adjudications should not bar this motion based on the "interest of justice" exception; 2) the procedural default ground of Rule 61(i)(3) does not apply to Defendant's ineffective assistance of counsel arguments, because the trial record contains Defendant's objections to the effectiveness of his trial counsel; and 3) the procedural bars of Rule 61(i)(1)-(3) are inapplicable because of an alleged constitutional violation, thereby creating a miscarriage of justice and vitiating the time limitation, repetitive motion, and procedural default bars, respectively. Defendant alleges "fundamental constitutional rights violations" based on ineffective assistance of counsel and this Court's alleged failure to inquire into or address Defendant's complaints about his trial counsel at the time of trial. Defendant specifically alleges that "[the trial judge] and state counsel decided trial counsel was good enough for [Defendant], over [Defendant's] objections." According to Defendant, this violated his right to control his defense.
As set forth in Defendant's Memorandum of Law, Defendant's claim of a constitutional rights violation is apparently premised on "a bi-lateral breakdown in communications between [Defendant] and trial counsel," thereby allegedly bringing Defendant's claims within the scope of a Defendant's right to make certain fundamental decisions about trial strategy, as defined in Cooke v. State. See discussion infra pp. 43-44.
Def.'s Oct. 6 Mot. for Postconviction Relief at 3-5.
Id. at 7.
Id.
Defendant further contends that the State's alleged opposition to his efforts to bring his disputes with trial counsel to the Court's attention was in violation of Delaware Lawyers' Rules of Professional Conduct, Rule 3.8. However, Defendant's moving papers contain merely this conclusory allegation of an ethical violation, without supporting facts or analysis. Consequently, this argument will not be considered; Defendant has previously been advised that "conclusory and unsubstantiated claims will not be addressed" in Rule 61 motions.
Id. at 8.
See State v. Desmond, 1995 WL 717628 (Del. Super. Ct. 1995) (citations omitted). This Court notes that Defendant has previously alleged violations of the Delaware Lawyers' Rules of Professional Conduct by the prosecutor, and such claim was barred by Rule 61(i)(2). State v. Desmond, 2004 WL 838854, *2 (Del. Super. Ct. 2004). Therefore, Defendant's instant argument is consistent with his "pattern of reasserting past claims by couching the claims in slightly different language. . . ." Id.
In support of his claims, Defendant cites the recent Supreme Court of Delaware opinion of Cooke v. State. In Cooke, a prosecution for capital murder, the Court held, inter alia, that trial counsel's pursuit of a "guilty but mentally ill" verdict, notwithstanding the client's repeated and vocal protestations that he wanted to maintain his factual innocence, effectively negated the defendant's fundamental right to plead not guilty, to testify in his own defense, and to have an impartial jury trial. The Court held that decisions such as "whether to plead not guilty and have a trial by jury where [the defendant] has an opportunity to confront and cross-examine adverse witnesses, and whether to testify" are strategic decisions that trial counsel might be better able to make, but "because the consequences of [these choices] are the defendant's alone, they are too important to be made by anyone else."
977 A.2d 803 (Del. 2009).
Id. at 842-46.
Id.
The Court further held that the trial judge must address breakdowns in the attorney-client relationship that implicate these fundamental choices, otherwise "the right to make these decisions is nullified if counsel can override them against the defendant's wishes." Accordingly, Defendant alleges the following similarities between this case and the Cooke case (errors in original):
Id. at 847.
In Cooke, the defendant wanted to present his own defense, as opposed to his trial counsel's defense.
1) In Desmond he wanted to represent himself and present his defense rather than the defense of his unwanted counsel which was presented over Desmond's objections. (A1-A-11). As found by the court in Desmond v. Snyder, C.A. no. 96-327-GMS, slip opp. at 6-7 (D. Del. July 22, 1997) (exb. A).
a) In Cooke, counsel and the trial court made all the fundamental constitutional rights decisions for Cooke without consulting Cooke, and then during his direct appeal attempted to tie him to counsel's trial decisions. Cooke, 977 A.2d at 831-856.
b) In Desmond, the trial judge decided counsel was good enough for Desmond over Desmond's objections (A-1-2). This allowed trial counsel to make all constitutional rights trial decisions over Desmond's objections as noted by [the trial judge] during trial. (A-3-11) This allowed counsel to present his defense over Desmond's objections. (exhibit A at 5-7). (A-1-11). Moreover, this allowed the same trial counsel, over the objections of Desmond, to file his direct appeal raising counsel's issues rather then Desmond's issues as found by the court (exhibit A-at 5-7). The court and state have since successfully tied Desmond to his unwanted trial counsel, claiming Desmond has procedurally defaulted his constitutional claims because of his unwanted counsel's trial and appellate errors.
Memorandum of Law in Support of Movant's Postconviction Motion at 4.
IV. MOTION FOR RECUSAL
A. Defendant's Contentions Fail to Satisfy the Standard for Recusal or Disqualification Under Delaware Law.
As a threshold matter, Defendant's motion for recusal must be addressed. Defendant moves for recusal of the undersigned judge on the basis of bias; he alleges that this judge is biased given the various judicial complaints, appeals, and federal civil rights claim brought by Defendant against this judge and this Court's decisions. Specifically, Defendant claims this judge is biased because (all errors in original):
Although Defendant's motion is captioned as one for "recusal," "[s]trictly speaking, 'recusal' traditionally refers to a judge's withdrawal from a case sua sponte, while 'disqualification' refers to the motion of a litigant asking the judge to step down." Recommendations for Improving Judicial Disqualification Practices and Procedures Among the States, STANDING COMMITTEE ON JUDICIAL INDEPENDENCE (ABA), Oct. 8, 2010, at 3 n. 1 (citations omitted) available at http://new.abanet.org/committees/judind/ PublicDocuments/JDPReportOct82010.pdf. See also Jeffrey W. Stempel, Impeach Brent Benjamin Now?! Giving Adequate Attention to Failings of Judicial Impartiality, 47 SAN DIEGO L. REV. 1, 4 n. 8 (2010) ("This Article treats the words 'disqualification' and 'recusal' as synonyms. Some courts and commentators have historically distinguished the terms, suggesting that disqualification is a judge's mandatory obligation to avoid participation in a case while recusal is a more voluntary, discretionary act informed by the judge's own preferences as well as prevailing law.")
Def.'s Oct. 6, 2010 Mot. for Recusal. Defendant's federal civil rights lawsuit was filed against numerous judicial officers and attorneys, including the undersigned judge. Complaint, Desmond v. Brady, et al., CA No. 91009844DI (D. Del. Nov. 18, 2003). The Complaint alleged a conspiracy to interfere with Defendant's constitutional rights. See, e.g., id. at 11 (claiming that trial counsel "said nothing and entered the conspiracy indirectly with [the trial judge] and [the prosecuting Deputy Attorney General], which violated his oath as a member of the Delaware bar, and deprived plaintiff of his Fourteenth Amendment Right to Due Process of law, during his direct appeal of Right.") (all errors in original).
Desmond has filed 3 prior Recusal motions (1) judicial complaint and (one) civil rights actions under 1983 claiming [the trial judge] violated his constitutional rights. A judge should recuse himself when there has been a public dispute between a judge and defendant there has been no question a dispute between Desmond and [the trial judge], that leaves impartialness in question for the public.
Id.
Defendant's motion for recusal is without merit. Of course, it is a truism that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." This includes instances where "[t]he judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . . ." However, these conditions are not, and have never been, present in this case.
Delaware Judges' Code of Judicial Conduct R. 2.11(A) (2008)
Id. § (A)(1).
The general test for disqualification due to bias was articulated by the Supreme Court of Delaware in the seminal 1991 case of Los v. Los. Therein, the Court held that, when faced with a claim of bias, a judge must complete a two part analysis. First, a judge must, "as a matter of subjective belief, be satisfied that [that judge] can proceed to hear the cause free of bias or prejudice concerning that party." Second, even if the judge believes that there is no bias, "situations may arise where, actual bias aside, there is the appearance of bias to cause doubt as to the judge's impartiality." The standard for the second prong of the test is whether a "reasonable observer" would conclude that the trial judge was influenced by bias.
595 A.2d 381 (Del. 1991).
Id. at 384-85.
Id.
Id. at 385.
See Stevenson v. State, 782 A.2d 249, 258 (Del. 2001); see also Fritzinger v. State, Del. Supr., ___ A.3d ___, No. 593, 2009, Steele, C. J. (Dec. 13, 2010), Mem. Op. at 20 ("Under Los, we must assess whether an objective observer would view all the circumstances and conclude that a fair or impartial hearing was unlikely.").
Defendant's motion for recusal has failed to satisfy either prong of the Los v. Los test. This judge subjectively has no bias towards Defendant. Likewise, no reasonable observer could conclude that this judge is biased against Defendant. To the contrary, the procedural history of this case discloses nothing more than this judge's impartial decisions on the various motions presented during the 18 year history of this case. Defendant's filings reveal his dissatisfaction with this Court's rulings, but this is nothing more than Defendant's subjective (and unsubstantiated) allegations of bias. Indeed, the fact that Defendant's contentions have been uniformly rejected by the Supreme Court of Delaware and the federal courts confirms that no reasonable observer could conclude that this judge's rulings exhibit bias against Defendant.
Accordingly, there is no legitimate basis for disqualification or recusal. The granting of a party's motion to recuse or disqualify in any civil or criminal case, in the absence of a bona fide reason for recusal or disqualification, would be "irresponsible" and a dereliction of the judicial duty, as discussed infra.
Reeder v. Del. Dept. of Ins., 2006 WL 510067, *23 (Del. Ch. 2006) (citations omitted); see also infra text accompanying notes 106-07.
B. Judges Must Balance Their Duty to Recuse or Disqualify With the Duty to "Hear and Decide Matters Assigned, Unless Disqualified."
Delaware Judges' Code of Judicial Conduct R. 2.7(A) (2008).
1. History of the "Duty to Sit" Doctrine.
Prior to the 1974 amendments to 28 U.S.C. § 455(a), the federal judiciary explicitly adhered to a principle known as the "duty to sit" doctrine. This "duty to sit" has been described as a mechanism "to deny disqualification motions in all but the most blatant of circumstances." The duty was "generally construed in such a way as to oblige the assigned judge to hear a case unless and until an unambiguous demonstration of extrajudicial bias was made." As stated by one commentator, the "duty to sit" doctrine "required judges to decide borderline recusal questions in favor of participating in the case."
See Laird v. Tatum, 409 U.S. 824, 837 (1972) ("Those federal courts of appeals which have considered the matter have unanimously concluded that a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.")
RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES 604 (2007) (citations omitted).
Id.
Debra Lyn Bassett, Recusal and the Supreme Court, 56 HASTINGS L.J. 657, 672 (2005).
Motivated apparently in part by certain high profile issues implicating judicial recusal or disqualification, the American Bar Association promulgated revised standards for judicial disqualification in 1972. As a result of these revised standards, the ABA Model Code of Judicial Conduct was amended to include an objective "appearance of justice" standard that required recusal whenever a judge's impartiality "might reasonably be questioned."
For example, Justice Rehnquist's failure to recuse or disqualify himself from the Laird v. Tatum case, and Justice Abe Fortas's relationship with President Lyndon Johnson, notwithstanding their respective official roles. See Amanda Frost, Keeping Up Appearances: A Process Oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531, 545 (2005).
Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety: What the Public Sees is What the Judge Gets, 94 MINN. L. REV. 1914, 1928-29 (2010) ("[T]he 1972 Code's major contribution to the developing world of judicial ethics was to graft the appearance of impropriety standard onto the rules governing judicial disqualification. . . .Henceforth, disqualification would be required any time a judge's participation in a matter created an 'appearance' of partiality.").
Amanda Frost, Keeping Up Appearances: A Process Oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531, 546-47 (2005) (citing Model Code of Judicial Conduct Canon 3C). It has been stated that the Code of Judicial Conduct "exemplifies the modern view of judicial disqualification" and "mark[ed] the curtailment, if not the demise, of a notion previously expressed by some courts that judges had a 'duty to sit' that severely limited the boundaries of recusal." JAMES J. ALFINI ET AL., JUDICIAL CONDUCT AND ETHICS 4-4 (2007).
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. The amendments to § 455(a) broadened the grounds for judicial disqualification and aspired to disabuse the federal judiciary of its adherence to a "duty to sit." These revisions replaced any federal "duty to sit" in favor of a "presumption of disqualification" that requires a judge to resolve any doubts about whether his or her disqualification is warranted in favor of disqualification. However, some federal court decisions continued to recognize a "duty to sit" after the 1974 amendments to § 455(a):
Amanda Frost, Keeping Up Appearances: A Process Oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531, 546-47 (2005). See also Jeffrey W. Stempel, Chief William's Ghost: The Problematic Persistence of the Duty to Sit, 57 BUFF. L. REV. 813, 829 (2010) (noting that Model Code of Judicial Conduct Canon 3C sets forth "the situations requiring disqualification, criteria that effectively abolished the duty to sit as a counterweight to recusal, and that influenced congressional thinking to abolish the duty in the 1974 amendments to 28 U.S.C. § 455.") (citations omitted).
Richard E. Flamm, History and Problems with the Federal Judicial Disqualification Framework, 58 DRAKE L. REV. 751, 758-59 (2010) ("Amended § 455 was expressly intended to substitute a 'reasonable person' standard for the 'duty to sit' criterion that had previously been used in determining whether a judge should recuse in a particular factual situation."); see also Amanda Frost, Keeping Up Appearances: A Process Oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531, 547 (2005) ("In the House Report, Congress stated explicitly that it intended the objective standard to eliminate the 'so-called "duty to sit"'") (citing H.R. Rep. No. 93-1453, at 5 (1974)).
RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES 605 (2007) (citations omitted).
A trial judge must hear cases unless some reasonable factual basis to doubt the impartiality or fairness of the tribunal is shown by some kind of probative evidence. . . .In this sense, i.e., that judges hear cases unless there is some reason not to, the "duty to sit" remains [notwithstanding the enactment of 28 USC § 455].
Blizzard v. Frechette, 601 F.2d 1217, 1221 (1st Cir. 1979).
As one commentator has noted, notwithstanding the supposed displacement of the "duty to sit" by the 1974 amendments, "a spate of recent federal court decisions have affirmed preamendment case law holding that a federal judge is as obligated to sit when the facts do not give fair support to a charge of prejudgment, as the judge is to recuse when the facts warrant such action;" this may be because "a few federal courts appear not to have realized the impact of [455(a]. . . ."
Richard E. Flamm, History and Problems with the Federal Judicial Disqualification Framework, 58 DRAKE L. REV. 751, 760 (2010) (citing U.S. v. Allen, 587 F.3d 246, 251 (5th Cir. 2009) (affirming trial judge's statement that "'[m]y obligation is to preside unless there's a legal reason why I should not."'); U.S. v. Holland, 519 F.3d 909, 912 (9th Cir. 2008) ("We are as bound to recuse ourselves when the law and facts require as we are to hear cases when there is no reasonable factual basis for recusal.") (citations omitted); Sensley v. Albritton, 385 F.3d 591, 598-99 (5th Cir. 2004) ("'[A] federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified."') (citation omitted)).
Jeffrey W. Stempel, Chief William's Ghost: The Problematic Persistence of the Duty to Sit, 57 BUFF. L. REV. 813, 871 (2010).
Another authority has recently articulated a distinction between "pernicious" and "benign" versions of the "duty to sit." Under this view, the "pernicious" version would "require resistance to otherwise valid disqualification motions" and "establish a presumption against disqualification in close cases." At the same time, a "benign" form of the duty to sit persists in that a judge has a baseline duty to hear and decide cases in the absence of a reason to recuse. As explained the United States Court of Appeals for the First Circuit has explained that, notwithstanding § 455(a)'s eradication of the presumption against recusal in close cases, a "duty to sit" persists to the extent that a judge is required to sit in the absence of any reason to recuse.
Id. at 829.
Id. at 827 (citation omitted).
Id. at 871.
U.S. v. Snyder, 235 F.3d 42, 46 n. 1 (1st Cir. 2000) ("Section 455(a) modified, but did not eliminate, the duty to sit doctrine. The duty to sit doctrine originally not only required a judge to sit in the absence of any reason to recuse, but also required a judge to resolve close cases in favor of sitting rather than recusing. Section 455(a) eliminated the latter element of the doctrine, but not the former.") (citations omitted). See also M. Margaret McKeown, Don't Shoot the Canons: Maintaining the Appearance of Propriety Standard, 7 J. APP. PRAC. PROCESS 45, 56 (2005) ("Today, barring exceptional circumstances, the duty to sit is not much discussed, and has generally been replaced by a duty not to sit where the appearance of impropriety would result.").
Thus, there remains an inherent "duty to sit" that is integral to the role of a judge. Under this approach, "[a] judge has as strong a duty to sit when there is no legitimate reason to recuse as he or she does to recuse when the law and facts require." In short, a judge's duty to recuse or disqualify is complementary to, but not greater than, his or her baseline duty not to recuse in the absence of any objective basis. This principle continues to apply in Delaware.
The rationale of Los v. Los, taken together with the subsequent Delaware judicial opinions on the issue of judicial disqualification, suggests that Delaware's approach is consistent with the so-called "benign" version of the duty to sit. See Chief William's Ghost, supra note 86 at 820-21 ("To a degree, the duty to sit, at least in its benign form, is in large part a duty not to unreasonably burden fellow judges by recusing in response to a weak argument for disqualification.").
John Bourdeau, et al., Annotation, Disqualification and Recusal of Judges: Generally, 32 Am. Jur. 2d Federal Courts § 42 (2010) (citations omitted). See also id. ("It is vital to the integrity of the system of justice that a judge not recuse him[self] or herself on unsupported, irrational or highly tenuous speculation.").
See, e.g. JAMES J. ALFINI ET AL., JUDICIAL CONDUCT AND ETHICS 4-4 (2007) (describing the duty to sit in cases where a judge is not disqualified as "equally strong" as the duty not to sit in cases in which the judge is disqualified.).
Notably, various states have addressed this issue differently; "[i]n some jurisdictions [the duty to sit] rule was expressly prescribed by statute or court rule, while in others, such a duty was found to exist in the absence of any provisions to the contrary." RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES 611 (2007) (citations omitted). One observer has noted that a number of states, including Alaska, Arkansas, Georgia, Maryland, Mississippi, Missouri, Texas and Wyoming, adhere to the view that a judge may only disqualify or recuse himself or herself if there is "a compelling reason for doing so." Id. at 610-11. This is not the rule in Delaware; rather, Delaware's apparent "benign" version of the duty to sit simply recognizes that, in the absence of a reasonable question as to the judge's impartiality, Rule 2.7(A) militates strongly against recusal or disqualification and imposes an affirmative duty to "hear and decide" the case.
Put another way, Delaware judges should carefully consider the decision to recuse or disqualify and should be genuinely convinced that the analysis set forth in Los v. Los requires recusal or disqualification. The decision to recuse or disqualify must not be made lightly, because to do so is contrary to the Delaware Judges' Code of Judicial Conduct and inevitably "[leaves the] case as one of [the recused or disqualified judge's] colleague's problems to deal with, thereby invariably impinging on [his or her] ability to address the many other matters already pending on [his or her] docket."
Reeder v. Del. Dept. of Ins., 2006 WL 510067, *23 (Del. Ch. 2006).
2. Application of "Duty to Sit" Principles to Delaware Law.
a. History of Delaware's "Duty to Sit."
Under Delaware Judges' Code of Judicial Conduct Rule 2.11, "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . . ." This is virtually identical to § 455(a)'s directive that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Accordingly, the standard for judicial disqualification under 28 USC § 455(a) and its attendant federal case precedent is particularly helpful in clarifying the judicial disqualification analysis under the Delaware Judges' Code of Judicial Conduct.
Notably, the Delaware Judges' Code of Judicial Conduct provides that a judge "should" disqualify himself or herself, while § 455(a) provides that the judge "shall" disqualify himself or herself; the former is permissive, while the latter is mandatory. Consequently, if a federal judge is not required to recuse or disqualify under the mandatory provisions of § 455(a), it necessarily follows that recusal or disqualification of a Delaware judge is not required under the permissive language of Delaware's rule. Although principles of statutory interpretation generally distinguish directory provisions from mandatory provisions, it is equally true that "it is the duty of the Court to consider the particular language of the statute, the subject matter, the purpose for which the statute was enacted and its importance, the relation of that provision to the general object intended to be secured by the act and the consequences of a contrary construction." Stabler v. Whittington, 290 A.2d 659, 661 (Del. Super. Ct. 1972) (citations omitted). Thus, this distinction is of no consequence for the purposes of the instant comparison and discussion; whether under the permissive or mandatory approach, the analysis is identical.
The federal judiciary has repeatedly noted a trial judge's duty to hear and decide a case in the absence of a genuine reason for disqualification or recusal. For example, in United States v. Snyder, the Court of Appeals for the First Circuit recognized that, under 28 U.S.C. § 455, a judge's duty to recuse is triggered only "if [the judge's] impartiality can reasonably be questioned; but otherwise, [the judge] has a duty to sit." In 2004, the Court of Appeals for the Fifth Circuit similarly reiterated that "a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified."
See, e.g., U.S. v. Allen, 587 F.3d 246, 251 (5th Cir. 2009); Snyder, 235 F.3d at 46; see also Richard E. Flamm, supra note 85.
Snyder, 235 F.3d at 46; see also id. ("In any event, the unnecessary transfer of a case from one judge to another is inherently inefficient and delays the administration of justice.") (citation omitted).
Sensley v. Albritton, 385 F.3d 591, 598-99 (5th Cir. 2004) (quoting Laird v. Tatum, 409 U.S. 824, 837 (1972)).
The Delaware Court of Chancery recognized this same duty in the 1985 case of Matter of Will of Stotlar. In Stotlar, the Court recognized that "[a] trial judge has a duty to hear cases assigned to [that judge] unless some reasonable factual basis to doubt [that judge's] impartiality or fairness is shown by some kind of probative evidence." Thus, under both the Delaware and federal approaches, there is a threshold requirement that reasonable questions as to the judge's impartiality exist; otherwise, the duty to recuse or disqualify is not implicated and the "duty to sit" remains viable.
1985 WL 4782, *2 (Del. Ch. 1985).
Id. (citing Blizard v. Frechiette, 601 F.2d 1217 (1st Cir. 1979).
Further, Delaware Judges' Code of Judicial Conduct Rule 2.7(A) directs that "[a] judge shall hear and decide matters assigned, unless disqualified." Tellingly, this rule is entitled "Responsibility to Decide." Therefore, properly read, the conditions requiring disqualification represent an exception to a Delaware judge's baseline responsibility to hear and decide that judge's assigned cases. Consequently, the harmonization of Rules 2.7 and 2.11 represent Delaware's version of the "duty to sit." That is, a judge is obliged not to recuse or disqualify in the absence of a bona fide disqualifying condition, as defined in Rule 2.11, such that the judge is not genuinely convinced of the need for recusal or disqualification. This obligation is vital, because recusal or disqualification on an insufficient basis will unduly "imping[e]" on a judge's colleagues' ability to address their own dockets.
Delaware Judges' Code of Judicial Conduct R. 2.7(A) (2008).
See Chief William's Ghost, supra note 86 at 820-21. Thus, Delaware's approach is consistent with the so-called "benign" version of the "duty to sit;" this interpretation is further supported by the policy codified in Rule 2.7(B), which states that "[a] judge should not use disqualification to avoid cases that present difficult, controversial or unpopular issues." Delaware Judges' Code of Judicial Conduct R. 2.7(B) (2008).
Reeder v. Del. Dept. of Ins., 2006 WL 510067, *23 (Del. Ch. 2006)
In Stotlar, supra, the Court of Chancery, in denying the plaintiff's motion for disqualification, articulated the rationale of a judge's "duty to sit":
Quite frankly, I would be happy to disqualify myself from this case or find some other way to avoid hearing this matter. Will contests which pit family member against family member are probably the most disagreeable type of case which the court is called upon to hear. Particularly distasteful is the prospect of listening to witnesses who have already testified in a prior proceeding.
If I disqualified myself, however, I would be abrogating my responsibility. The only knowledge I have of this matter is that which I heard in the courtroom during a vigorously contested trial in which all parties were represented by competent counsel and in which all the witnesses were subject to cross-examination.
For me to disqualify myself merely because I ruled against Mr. Stotlar in a related matter would establish a very dangerous precedent which, if carried to its logical conclusion, would prevent a judge who ruled against a movant for summary judgment from hearing the trial on the merits. It would also likely lead other litigants to file meritless motions for disqualification in order to forum shop for a judge who they perceive would be more likely to rule in their favor.
It would also be contrary to the Delaware tradition that the same judge hears a case on remand after a reversal on appeal, even where the trial judge initially sentenced a defendant to death.
Mr. Stotlar has not alleged any facts which would support a claim of bias or prejudice against him by me. The fact that he was the loser in a prior proceeding before me is not grounds for disqualification.
A trial judge has a duty to hear cases assigned to him unless some reasonable factual basis to doubt his impartiality or fairness is shown by some kind of probative evidence. None has been shown here.
In re Stotlar, 1985 WL 4782, *1-*2 (Del. Ch. 1985) (citation omitted).
Moreover, in Reeder v. Del. Department of Insurance, the Court of Chancery has recently and correctly observed that "judges who too lightly recuse shirk their official responsibilities, imposing unreasonable demands on their colleagues to do their work and risking the untimely processing of cases." In Reeder, the Court of Chancery described the disqualification analysis as follows:
Reeder v. Del. Dept. of Ins., 2006 WL 510067, *17 (Del. Ch. 2006) (citations omitted).
As firmly as I regret that [the plaintiff, a pro se litigant] perceived certain comments at the summary judgment hearing to reflect a bias against him, I just as firmly find that no such bias existed or exists and that the summary judgment hearing provides no grounds for recusal.
Put bluntly, I harbor no bias against [the plaintiff], no extraneous consideration affects my ability to determine this matter purely on its merits, and it would simply be shirking for me to step aside. That last point bears reiteration.
It took no small number of hours to thoroughly read the record in this case and prepare for oral argument. [The plaintiff] did not seek my recusal through a proper motion but through charges issued to the news media after I was deep into considering and writing this opinion. In several ways, it would have been less burdensome for me personally to have simply walked and left this case as one of my colleague's problems to deal with, thereby invariably impinging on his ability to address the many other matters already pending on his docket.
That would have been irresponsible. Being positioned to impartially to decide the case, it was my duty to do so. That is what I have now done.
Id. at 22-23.
To reiterate, in the absence of a genuine basis for recusal or disqualification, an inappropriate recusal or disqualification would "simply be shirking" and "irresponsible." Indeed, Delaware's approach reflects an obvious tenet: that there is a duty incumbent on judges "not to unreasonably burden fellow judges by recusing in response to a weak argument for disqualification." Upon proper motion for disqualification, a judge's decision should be controlled by the analysis set forth in Los, supra, and not guided or influenced by factors such as convenience or a desire to remove the allegations of bias from the case.
Id. at 23.
Chief William's Ghost, supra note 86 at 820-21.
Taken together, the foregoing case law and Delaware Code of Judicial Conduct confirm a judge's important "duty to sit" unless and until genuinely convinced of the need for recusal or disqualification. Thus, all that remains is to distill the applicable standards for bias or prejudice that is sufficient to satisfy Rule 2.11 and apply them to this case.
Notably, the Supreme Court of Delaware has observed that "Delaware courts have been reluctant to disqualify a judge under Canon 3(c)(1) and the Los test." Watson v. State, 934 A.2d 901, 907 (Del. 2007). (citing Robinson v. State, 869 A.2d 328 (holding that, based on Los, disqualification was not required where the defendant had been charged with threatening the presiding Superior Court judge, even if the judge was aware of the charges.)).
b. The Bias Alleged by Defendant is Insufficient to Warrant Recusal or Disqualification.
At bottom, Defendant's claims of bias stem from his dissatisfaction with this Court's rulings on his various motions during and after his trial. Defendant has expressed this dissatisfaction via appeals, judicial complaints, and a § 1983 claim, and he now seeks to use the fact that this Court has previously ruled adverse to him as a basis for this judge's recusal or disqualification on the instant motion.
Defendant's discontent with this prior Court's rulings is not a valid basis for this judge's disqualification. Indeed, "[i]t should be self evident that adverse rulings in themselves do not create judicial partiality. . . .[o]therwise, 'there would be almost no limit to disqualification motions and the way would be opened to a return to judge shopping.'" The Supreme Court of Delaware has stated that "a trial judge's rulings alone almost never constitute a valid per se basis for disqualification on the basis of bias." Indeed, bias developed during the course of trial is not a sufficient ground for recusal. As stated by the Family Court of Delaware:
See, e.g., In re Wittrock, 649 A.2d 1053, 1054 (Del. 1994); Gattis v. State, 955 A.2d 1276, 1286 (Del. 2008) ("Judicial rulings alone, such as the denial of a motion to recuse or disqualify or of a request to increase the time limitation on the briefing schedule or the length of the briefs, are insufficient bases for recusal.")
In re Matter of West, 1987 WL 18824 (Del. Ch. 1987) (citing U.S. v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976).
Id. (citing Liteky v. U.S., 510 U.S. 540 (1994)). See also State v. Manley, 2004 WL 2419138, *5 (Del. Super. Ct. 2004) ("Adverse rulings, in and of themselves, will seldom, if ever, constitute a valid per se basis for disqualification on the ground of bias. . . .The bias envisioned by Canon 3(C)(1) is not created merely because the judge has made adverse rulings during the course of a proceeding.") (citations omitted).
See, e.g. State v. Charbonneau, 2006 WL 2588151, *13 (Del. Super. Ct. 2006) (denying defendant's motion to recuse when defendant did not aver any personal bias on the part of the trial judge; the Court concluded that the only possible bias alleged by movant was judicial bias, an insufficient ground for recusal or disqualification.); Reeder, 2006 WL *22 n. 12 ("[A] judge's exposure to facts learned in the context of adjudicating a case is not a basis for recusal. Thus, it is well established that recusal is not required when a judge learns potentially adverse facts about a party or his or her claims during the course of his discharge of his official duties of hearing a case or reading submissions.) (citations omitted).
[T]he bias must be a personal one, not judicial. A mere allegation of "judicial bias" is not a sufficient ground for recusal. Any bias developed during the trial is judicial bias, and is not personal bias. To be sufficient for a judge to be disqualified from a case, that bias must also "stem from an extrajudical source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.
Sand v. Martin, 1982 WL 35819 (Del. Fam. Ct. 1982); see also Weber v. State, 547 A.2d 948, 952 (Del. 1988) (noting that "[o]ther courts have held a judge is not precluded per se from further participation in the same case even if on appeal it has been remanded for a new trial or resentencing.").
Similarly, one authority has addressed the issue of disqualification in the post-trial context as follows:
[S]hould the trial judge be disqualified from acting on a motion for a new trial or hearing a motion for postconviction relief, both of which may involve challenges to his prior trial decisions?. . . .[T]he prevailing view seems to be that absent circumstances otherwise requiring judicial disqualification, a party is not prejudiced by the same judge presiding over both trial and post-trial or post-conviction proceedings.
LESLIE W. ABRAMSON, JUDICIAL DISQUALIFICATION UNDER CANON 3 OF THE CODE OF JUDICIAL CONDUCT 32-33 (American Judicature Society 1986) (citations omitted). See also id. at 31 ("[A]dverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice. . . .A litigant's fear that a judge may become or has become biased as a result of a prior adverse decision cannot be transformed into a reasonable basis upon which his partiality can be questioned.") (citations omitted).
Precedent from the Supreme Court of the United States is in accord:
The judge who presides at trial may, upon completion of the evidence, be exceeding ill disposed towards the defendant. . . .But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings. . . .Also not subject to deprecatory characterization as "bias" or "prejudice" are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.
Liteky, 510 U.S. at 550-51 (1994) (citations omitted). Although the following cases are distinguishable, having been decided in the unique context of a capital murder charge, it is nonetheless significant to note that, even in the remand and new trial of capital cases where a sentence of death has been imposed, the Supreme Court of Delaware has declined to impose a per se disqualification requirement. See, e.g., State v. Cooke, 2010 WL 3734113, *33 (Del. Super. Ct. 2010) ("[T]he Delaware Supreme Court does not appear to have said there is a per se rule that when a capital case is to be retried, it must always be done by a different judge."); State v. Charbonneau, 2006 WL 2588151 (Del. Super. Ct. 2006) (denying the defendant's motion to recuse in the retrial of defendant, despite the trial judge's imposition of a sentence of death following the initial conviction; the defendant alleged judicial bias, rather than personal bias.). See also In re Stotlar, 1985 WL 4782 (Del. Ch. 1985) ("[For a judge to disqualify merely because that judge ruled against movant in a related matter would be] contrary to the Delaware tradition that the same judge hears a case on remand after a reversal on appeal, even where the trial judge initially sentenced a defendant to death."). But cf. Flonnory v. State, 778 A.2d 1044, 1058 (Del. 2001) (after reversing and remanding the defendant's conviction and death sentence, the Supreme Court of Delaware ordered that the case be tried before a different judge, stating: "[w]e have absolutely no doubt that the original trial judge could fairly and impartially preside at Flonnory's new trial. . . .however, the public's confidence in the impartial administration of justice would be enhanced if Flonnory were not sentenced by a judge who had previously decided that a death sentence was the appropriate punishment for Flonnory's conduct.").
Thus, to the extent that Defendant contends this judge is inherently biased by virtue of presiding over Defendant's trial and a series of postconviction motions, it is the general rule in Delaware that the judge presiding at trial also handles the case on any potential retrial or post-trial matters. Indeed, the rare and specific exceptions reinforce the existence of this general rule.
See, e.g., Wilson v. State, 2010 WL 572114, *3 (Del. 2010) ("Wilson argues that the Superior Court policy-that the original trial judge presides over the new trial after remand-is 'questionable.' That argument has been rejected by this Court. It also has no merit, especially where-as here-the judge acknowledged that there was 'a good reason' for reversal."); Charbonneau, 2006 WL at 11 ("[I]t is standard custom and practice in Delaware that when a case is remanded back to the court below, absent specific instructions to the contrary, the case is returned to the same trial judge who presided over it initially."). But cf. Clemmons v. Wolfe, 377 F.3d 322, 328-29 (3d Cir. 2004) (holding that, although not specifically required by the terms of § 455(a), the Court of Appeals would exercise its supervisory to power and require that "each federal district court judge in this circuit recuse himself or herself from participating in a 28 U.S.C. § 2254 habeas corpus petition of a defendant raising any issue concerning the trial or conviction over which that judge presided in his or her former capacity as a state court judge.").
Given that the Supreme Court of Delaware has on occasion specifically directed that a case be assigned to a different trial judge when the Supreme Court perceives disqualification to be required, the only logical inference is that, absent such a directive, the general rule stands and the case is to be assigned to the same judge. See, e.g., Charbonneau, 2006 WL at 21 ("It seems likely that had the Supreme Court felt that there was an issue of bias that would warrant recusal, the case would have been remanded with specific instructions that it be heard by a new judge."). In Charbonneau, prior to issuing the decision denying the defendant's motion for recusal, the trial judge certified two questions the Supreme Court of Delaware: 1) "[n]otwithstanding the trial judge's subjective belief that he is free of bias or prejudice, is there an objective appearance of bias as a matter of law sufficient to cause doubt about his impartiality?" and 2) "[i]f there is not an objective appearance of bias sufficient to cause doubt about his impartiality, are there unusual circumstances in this case which would warrant reassignment to another judge as a matter of judicial administration?;" the Supreme Court refused certification. Charbonneau v. State, 906 A.2d 806 (Del. 2006) ("The Court has considered the questions certified and the particular circumstances of this case and has determined that important and urgent reasons do not exist to justify deviating from the ordinary appellate process available to the parties in this case."). See also Fritzinger v. State, Del. Supr., ___ A.3d ___, No. 593, 2009, Steele, C. J. (Dec. 13, 2010), Mem. Op. at 2 (specifically directing that, on remand, the case be assigned to a different judge based on the possibility that an objective observer could perceive unfairness or bias on the part of the trial judge.); Flonnory, 778 A.2d at 1058. Cf. Garden v. State, 979 A.2d 1110 (Del. 2009) (directing that the case be reassigned to a different Superior Court judge for reconsideration of the defendant's postconviction motion based on "the nature of [defendant's] arguments, the need for appointed counsel to review the earlier proceedings, and the impending expiration of the trial judge's term. . . .").
3. Application of the Foregoing Principles to Defendant's Claims.
This judge subjectively has no bias or prejudice towards Defendant. Rather, this judge has decided each of Defendant's motions in accordance with the applicable legal standards. Notwithstanding Defendant's displeasure with this Court's pretrial, trial, and post-conviction rulings, the decisions of this Court were all grounded on an impartial application of Delaware law. Accordingly, this Court finds that disqualification on this ground is not warranted.
The consistent and uniform denial of Defendant's plethora of motions for various forms of relief by the Superior Court of Delaware, Supreme Court of Delaware, and the federal courts confirms this point.
See Laura Hunter Dietz, et al., Annotation, Retrial of Case Reversed by Higher Court, 46 Am. Jur. 2d Judges § 156 (2010) ("It is the duty and function of a trial court to reach an opinion on a question of law based upon the facts of the problem presented, and an exercise of this duty may not be used as a basis for disqualification.") (citations omitted).
With respect to the objective inquiry, to be disqualified on this ground the alleged bias "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." The exclusive source of this judge's knowledge of Defendant is the criminal trial and the attendant pretrial and post-trial proceedings; this judge's knowledge of Defendant has arisen solely in the judicial context. Consequently, this Court's opinions on all of Defendant's motions, including the instant motions, are based solely on the record of this case and the applicable law; at no time have any extrajudicial sources influenced any decision on the merits of Defendant's arguments. There is nothing in the history of this case that could lead a "reasonable observer" to conclude that this judge was influenced by bias. Therefore, disqualification on this ground is also not warranted.
Los, 595 A.2d at 385 (quoting U.S. v. Grinnell Corp., 384 U.S. 563, 583 (1966)). See also Beck v. Beck, 766 A.2d 482, 484-85 (Del. 2001) ("Judges are not automatically obligated to recuse themselves based on allegations of bias because they ruled strongly against a party in the first hearing. Moreover, the alleged bias or prejudice must be based on information that the trial judge acquired from an 'extrajudicial source.'") (citation omitted).
See, e.g., Stevenson v. State, 709 A.2d 619, 635 (Del. 1998) ("The trial judge's familiarity with [the victim] was entirely attributable to [the victim's] appearance as a witness during a suppression hearing in a criminal case. Thus, any knowledge of [the victim] or contact with [the victim] by the Superior Court was exclusively from a judicial source and in a judicial context.")
Stevenson v. State, 782 A.2d 249, 258 (Del. 2001).
To the extent that Defendant contends that the judicial complaints and federal civil rights claim against this judge are a source of bias, "[t]he mere fact that a judge is an adverse party in another proceeding will not, by itself, result in automatic disqualification. Where [a related federal action] is a federal suit which seeks to enjoin the judge or question his authority, the judge is not required to recuse himself. . . ."
Los, 595 A.2d at 385 (citations omitted).
Perhaps most important to this case, "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." This would permit a litigant to "judge shop" in the absence of any genuine bias and "[t]he orderly administration of justice could be severely hampered by permitting a party to obtain disqualification of a judge through the expedient filing of suit against him."
Id.
Id. (citation omitted).
Defendant has not presented any genuine support for a contention that this judge's impartiality "might reasonably be questioned." Consequently, indulging Defendant's motion would be in violation of Rule 2.7(A). In turn, this matter would necessarily become "one of my 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."
Delaware Judges' Code of Judicial Conduct R. 2.7(A) (2008)
Reeder v. Del. Dept. of Ins., 2006 WL 510067, *23 (Del. Ch. 2006).
Accordingly, for the reasons stated above, Defendant's motion for recusal is DENIED. This Court will therefore address the substance of Defendant's seventh motion for postconviction relief.
V. DEFENDANT'SMOTIONFOR POSTCONVICTION RELIEF
A. Defendant's Claims for Postconviction Relief are Procedurally Barred.
With respect to Defendant's claim for postconviction relief, Defendant argues that, had he been able to conduct his defense as he wished, he would have (all errors in original):
Submitted 12 witnesses names to testify he was elsewhere at the time of the robberies, as opposed to trial counsel's total failure to call the witnesses, Desmond would have obtained the 5 eyewitnesses the State suppressed who witnessed the robbery, and did identify Desmond as the robber. As opposed to trial counsel who never identified any of the 5 witnesses. Desmond, would have filed a Franks motion pursuant to superior court criminal 41(f) 12(b) as opposed to trial counsel who filed a motion to dismiss indictments. Desmond would have called John Zimmerman Desmond's twin who up until he was removed from the police line-up victims identified him as the robber. The jury would have seen the similaritys between Desmond and Zimmerman. Desmond would have petitioned the court for a Deberry hearing due to the lost evidence the state was allowed to introduce without objection from counsel. Desmond would have cross-examined all the State's witnesses as to their eyewitness identifications before trial, and in trial. Desmond would have subpoenaed the video surveillance systems from each robbery for the jury.
Desmond would have outlined during his direct appeal his sixth Amendment right to self representation be denied, his sixth Amendment to confront his accuser being denied.
Memorandum of Law in Support of Movant's Postconviction Motion at 4.
In Defendant's first motion for postconviction relief, he claimed ineffective assistance of counsel in only two respects: 1) failure to move to suppress evidence collected under the search warrant; and 2) failure to move to inspect the cash found on Defendant's kitchen counter. As noted, this motion was denied. Defendant reasserted ineffective assistance of counsel in his third motion for postconviction relief, which was also denied. Consequently, Defendant's contentions of ineffective assistance of counsel have been previously adjudicated.
State v. Desmond, 1995 WL 717628, *2 (Del. Super. Ct. 1995).
State v. Desmond, 2002 WL 3184550 (Del. Super. Ct. 2002).
This Court denied Defendant's initial claims of ineffective assistance of counsel because: 1) conclusory and unsubstantiated claims will not be addressed in Rule 61 motions, and 2) Defendant failed to show cause as to why this issue was not raised on direct appeal, and failed to show prejudice. Significantly, there was nothing to suggest that "counsel and the trial court made all the fundamental constitutional rights trial decisions" over Defendant's objections, or that the court "decided counsel was good enough for [Defendant]" over Defendant's objections, as Defendant now claims.
Desmond, 1995 WL 717628.
Memorandum of Law in Support of Movant's Postconviction Motion at 2.
In the instant motion, Defendant's objections to trial counsel's assistance are premised on trial counsel's alleged failure to satisfactorily handle a suppression hearing and other pretrial motions, and failure to object to certain questions asked by the prosecution during cross-examination of Defendant during trial. Defendant also faults trial counsel for his failure to object to the identification process during trial, or "investigate during cross-examination into the pre-trial interviews by [the prosecution and investigating officer.]"
Id. Ex. C at 4-6.
Id. Ex. B at 3-4.
As stated, Defendant's very first motion for postconviction relief alleged ineffective assistance of counsel, but did not raise the foregoing complaints. Thus, in addition to the claim of ineffective assistance counsel being formerly adjudicated, pursuant to Rule 61(i)(4), to the extent Defendant has varied his criticisms of trial counsel, such claims are squarely within the procedural bar found in Rule 61(i)(3), which precludes "[a]ny ground for relief that was not asserted in the proceedings below leading to the judgment of conviction." Defendant may only avoid these procedural bars if consideration of the claim is warranted in the "interest of justice," if he can show cause for relief from a procedural default, or if he can demonstrate prejudice from a violation of his rights, respectively. As stated by the Supreme Court of Delaware, "[i]n order to invoke the 'interest of justice' provision of Rule 61(i)(4) to obtain relitigation of previously resolved claims a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him."
Superior Court Criminal Rule 61(i)(3)-(4).
Flamer v. State, 585 A.2d 736, 746-47 (Del. 1990) (citations omitted).
Defendant has made no showing that this Court lacked the authority to convict or punish him. Defendant's motion for postconviction relief contains the conclusory and unsubstantiated contention that the "[t]rial court lacked jurisdiction to convict movant of (8 counts of Robbery First Degree)." As noted, conclusory and unsupported allegations will not be addressed in Rule 61 motions. Likewise, just as with all of Defendant's prior attempts to evade the procedural bars of Rule 61, he has adduced no evidence that would demonstrate cause for a procedural default or prejudice from a violation of his rights.
B. Defendant Has Not Been Vested With Any Newly Recognized Rights.
1. The Cooke Decision is Irrelevant to the Instant Claims of Ineffective Assistance of Counsel.
To the extent that Defendant claims that the Cooke decision has vested Defendant with a relevant, newly recognized right, this argument is without merit. The Cooke decision holds that "the most basic" and "fundamental" decisions are reserved exclusively to the defendant. Trial counsel need not consult the defendant for "every tactical decision." Indeed, Cooke did nothing to change the general rule that trial counsel "has the immediate and ultimate responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop." The issues raised by Defendant are precisely the issues that remain within trial counsel's discretion. Consequently, Defendant's complaints continue to be controlled by Strickland v. Washington. Although somewhat differently packaged and articulated, the substance of Defendant's newest claims of ineffective assistance of counsel have been previously addressed and resolved under the Strickland standard.
Cooke v. State, 977 A.2d 803, 842 (Del. 2009).
Id. at 841.
Id. at 840-41; see also Scott v. State, Del. Supr., ___ A.3d ___, No. 342, 2009, Jacobs, J. (Dec. 6, 2010), Mem. Op. at 12 (citing Supreme Court of the United States precedent for the proposition that, "although a defendant has the final authority to make certain fundamental decisions such as whether to plead guilty or take an appeal, the defendant does not have a constitutional right to compel his counsel to raise issues that counsel, in his own independent and professional strategic judgment, decides not to present.") (citation omitted).
466 U.S. 688 (1984).
The interest of justice exception is not implicated. Consequently, Defendant's motion is procedurally barred by Rule 61(i)(4). Similarly, Defendant has not shown cause for relief or prejudice from a violation of his rights. Therefore, to the extent that Defendant failed to raise a particular criticism of his trial counsel's effectiveness in his numerous prior motions, such claims are procedurally defaulted and barred by Rule 61(i)(3).
The procedural bar of Rule 61(i)(1) also applies, as Defendant's conviction became final well over one year ago. There has been no newly recognized right applicable to Defendant that would vitiate this time bar.
2. The Zebroski Decision is Inapposite to Defendant's Motion for Postconviction Relief.
Defendant's reliance on Zebroski v. State to avoid the procedural bars of Rule 61 is equally unavailing. In Zebroski, the Supreme Court of Delaware noted that the procedural bar contained in Rule 61(i)(4) is based on the "law of the case" doctrine, and that there are two recognized exceptions to this doctrine. The two exceptions to the law of the case doctrine are: 1) if the previous ruling was clearly in error or there has been an important change in circumstances, particularly the factual basis for the issues previously posed; and 2) the equitable concern of preventing injustice may trump the law of the case doctrine.
2010 WL 797013 (Del. 2010).
Id. at *3-4 (citing Weedon v. State, 750 A.2d 521, 527 (Del 2000)).
Id.
Defendant has not established either condition enumerated in Zebroski. The lengthy and consistent rulings on Defendant's numerous post conviction motions, all of which were premised on the same grounds (albeit recast in somewhat different language each time), belies any claim that previous rulings were clearly in error. Moreover, as disclosed by the procedural history of this case, Defendant has consistently been denied relief by the Superior Court of Delaware, the Supreme Court of Delaware, the United States District Court for the District of Delaware, the United States Court of Appeals for the Third Circuit, and the Supreme Court of the United States. Simply put, there is no error to be found in the disposition of any of Defendant's postconviction motions. Accordingly, this exception to the law of the case doctrine is not applicable to Defendant. Therefore, Defendant may not invoke the "interest of justice" exception to the former adjudication bar of Rule 61(i)(4).
Finally, Defendant has adduced no evidence that legitimate equitable concerns are present in this case. Although equitable concerns "may trump" Rule 61(i)(4) to prevent injustice, Defendant's moving papers and the facts of this case disclose no evidence of inequity to Defendant. Instead, Defendant's motion merely reasserted the facts and procedural history of this case, together with an illusory comparison to the Cooke v. State decision. Accordingly, all of Defendant's claims have been either formerly adjudicated or defaulted and are procedurally barred.
Zebroski, 2010 WL at *4 (citation omitted).
VI. CONCLUSION
For the reasons stated above, Defendant's motion for recusal is DENIED, and Defendant's Seventh Motion for Postconviction Relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.