Steven P. Wood (argued), Gregory E. Smith (argued), Esquire, Maria T. Knoll, Esquire, Esquire and John S. Taylor, Esquire, Department of Justice, Wilmington, Delaware – Attorneys for The State.
Eugene Maurer and Allison S. Mielke (argued), Wilmington, Delaware, and Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington, Delaware – Attorneys for Defendant.
OPINION ON MOTION FOR RECUSAL
JOHN A. PARKINS, JR., JUDGE
The State has filed a motion asking me to recuse myself which Defendant Wright opposes. The State's motion primarily rests on two arguments. First, it points to my statements (made in the context of judicial proceedings) that I had little or no confidence in the verdict in this case. Its argument overlooks entirely two fundamental principles enunciated by the Delaware Supreme Court concerning judicial recusal. Further the State overlooks that the Delaware Supreme Court has agreed with my conclusions which, according to the State, require my recusal. Second, the State contends that I should recuse myself because several years ago I had a professional relationship and friendship with a Wilmington police detective (not involved in the investigation of the instant crime) who will likely testify at Defendant's second trial. I made a full and prompt disclosure of that relationship and both sides expressly consented to my presiding over this case. Years later, after I granted Wright relief, the State has had second thoughts. Even though no new facts have arisen since its waiver, it has reversed course and now asks me to now recuse myself. Its request is barred by its waiver. But, even putting the State's waiver aside, its argument is without merit for reasons the State has apparently overlooked. In this regard I note that the State has been unable to cite a single case in which a judge has recused himself under circumstances similar to those presented here.
In 2012 I wrote that "[i]t would be an understatement to say that this case has a long and convoluted history." The case has become even more procedurally complex in the comparatively short time since then, and it is necessary to have an understanding of some of this recent history in order to understand the State's contentions. I will therefore briefly summarize the pertinent procedural events, beginning with my 2012 opinion.
• In January 2012 I issued an opinion in which I granted Wright relief under Superior Court Rule 61. (That opinion will be referred to as Wright-2012.) In that opinion I denied most of Wright's claims for relief. However, I granted Wright a new trial because but I found that his confession was obtained in violation of Miranda v. Arizona and because exculpatory evidence had been withheld from him in violation of Brady v. Maryland.
• After issuing Wright-2012, I concluded that Wright was entitled to a new proof positive hearing. I conducted that hearing and I found that the State had not shown the required "proof positive and presumption great." Consequently I set bail for Wright at $200, 000 cash. Wright was unable to make bail.
• The State appealed my Wright-2012 decision as well as my decision that Wright was entitled to a new proof positive hearing and bail. During that appeal the Supreme Court twice remanded the matter to me for additional findings, none of which are germane to the issue now before me.
• The Supreme Court reversed Wright-2012 as well as my finding that Wright was entitled to a new proof positive hearing and bail. (This Supreme Court opinion will be referred to as Wright-2013.) The Supreme Court reinstated Wright's conviction and remanded to me for resentencing.
• 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.)
• 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.
I. The standard to be applied.
Ground zero of any recusal analysis is Rule 2.11 of the Delaware Judges' Code of Judicial Conduct. This section specifies, in non-exclusive terms, circumstances requiring a judge to recuse himself. The State agrees that none of those specific circumstances apply here. Instead it argues that a general catchall provision in Rule 2.11--a "judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where . . . [the] judge has a personal bias or prejudice concerning a party"-requires my recusal.
Application of this catchall standard requires a two part-analysis: First, I must make a subjective determination whether I am biased; and second, if not, I must make an objective determination whether there is an appearance of bias which might reasonably raise questions about my impartiality. The proverbial seminal case here is the Delaware Supreme Court's opinion in Los v. Los. In that case, a Family Court judge denied a husband's request for recusal, which the husband appealed to the Supreme Court. On appeal the Supreme Court set out the procedure for trial judge's to follow when faced with a motion for recusal:
When faced with a claim of personal bias or prejudice under [Rule 2.11] the judge is required to engage in a two-part analysis. First, he must, as a matter of subjective belief, be satisfied that he can proceed to hear the cause free of bias or prejudice concerning that party. Second, even if the judge believes that he has no bias, situations may arise where, actual bias aside, there is the appearance of bias sufficient to cause doubt as to the judge's impartiality.
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. "First the judge must be satisfied as a subjective matter that the judge can proceed to hear the case without bias." Because of its subjective nature, I need not cite any evidence in support of my conclusion, and "[o]n appeal of the judge's recusal decision, the reviewing court must be satisfied that the trial judge engaged in the subjective test and will review the merits of the objective test."
In general, a trial judge satisfies the first prong of the Los test if he makes that determination on the record,  and I do so now. I am convinced that I am, have been and will continue to be impartial in these proceedings. I have therefore concluded that the subjective test in Los does not require me to recuse myself. The terse nature of this conclusion should not be taken as an indication that I have given this aspect of the Los test short shrift. As any judge would do under these circumstances, I have devoted considerable introspection to the issue. My reflection confirms my belief that at no time during this litigation have I been biased against the State. Indeed (although I need not cite any supporting evidence) I note the salient fact that I decided most of Wright's claims against him, which is hardly consistent with the State's notion that I am biased against it. 
B. The objective test.
1. The standard for the objective test.
The objective test requires me to determine whether an informed objective observer, after considering all the facts and circumstances of the case, would conclude that a fair and impartial hearing was unlikely. In Fritzinger v. State the Delaware Supreme Court stated the rule this way:
[W]e must assess whether an objective observer would view all the circumstances and conclude that a fair or impartial hearing was unlikely. That requires us to assess the circumstances objectively to determine whether there is an appearance of bias sufficient to cause doubt about judicial impartiality.
The hypothetical "objective observer" is one who is fully informed about the facts and circumstances of the case. The Second Circuit Court of Appeals described the objective observer as "reasonable person [who] knows and understands all the relevant facts." This view follows the approach taken by Judge Richard Posner of the Seventh Circuit, who described the test as:
The test for an appearance of partiality is . . . whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.
Similarly, in a memorandum opinion declining to recuse himself Chief Justice Rehnquist wrote "[t]his inquiry is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Four years after the Chief Justice's opinion, Justice Scalia labeled this principle "well established."
The State urges that, when applying the informed observer standard, I should not dissect the appearance issues like a judge, but I should instead consider them as would a man on the street. To the extent that the State is asking me to turn a blind eye to the contents of the record and the legal principles giving rise to my earlier rulings, I cannot do so.
Like all legal issues, judges determine appearance of impropriety-not by considering what a straw poll of the only partly informed man-in-the-street would show-but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.
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. Secondly, it relies upon my professional relationship and friendship with Captain William Browne of the Wilmington Police Department. Also sprinkled throughout its motion are perfunctory legal contentions which are not expressly tied to either of the State's major themes. I will address some of these in connection with the State's primary arguments insofar as I can tell they are related to either of those themes.
Before considering principle contentions expressed in the State's motion, however, I will address an implied argument which permeates its motion: I was so anxious to grant Wright relief that I ostensibly invented a theory for him and granted him relief on the basis of an argument he did not make.
a. I did not invent an argument for Wright.
As noted previously, I found that Wright's confession was taken in violation of Miranda. In particular, I found that the interrogating officer's advisement that Wright would be entitled to appointed counsel only "if you are diligent and the State feels you need one, " not only failed to adequately convey the Miranda warnings to Wright, but also was actually misleading. The Delaware Supreme Court never reached the merits of this in Wright-2013 because it concluded that this contention was procedurally barred by Superior Court Criminal Rule 61. The State refers to this holding at several junctures in its motion,  perhaps to suggest that my ruling warrants recusal. In particular, it quotes a portion of the following passage by the Supreme Court in Wright-2013 which taken in its entirety might suggest that I invented this argument on Wright's behalf:
The Superior Court decided to address the adequacy of Wright's Miranda warnings sua sponte. It listened to the same videotaped confession that was the subject of a motion to suppress before trial; a claim of error on direct appeal; the second Rule 61 motion; and the appeal of that motion. Each challenge was rejected after addressing Wright's understanding of his Miranda rights. In deciding Wright's fourth postconviction motion, the Superior Court did not have any new evidence upon which to conclude that Wright's Miranda warnings were defective. A defendant is not entitled to have a court re-examine an issue that has been previously resolved simply because the claim is refined or restated. Wright did not ask for that relief, but if he had, there would be no basis on which to find that he overcame the procedural bar of Rule 61(i)(4). Reconsideration is not warranted in the interest of justice.
An observer might understand from the above passage that (1) "Wright did not ask for that relief" and (2) I "decided to address the adequacy of Wright's Miranda warnings sua sponte." This in turn might lead the observer to infer that I was so bent on granting Wright relief that I made up the theory for him and then sprang it as a surprise in my 2012 opinion.
The record, however, shows something entirely different. The Supreme Court was apparently incorrectly advised in Wright-2013 about what the record has to say. Contrary to what the Court wrote, Wright did in fact expressly ask for relief based upon the Miranda warnings he was given. For example, in a portion of his 2009 amended petition--titled "The Admission of Mr. Wright's Alleged Confession Violated Miranda"--Wright wrote:
[T]he Miranda rights provided to Mr. Wright were facially defective. Rather than tell Mr. Wright that he had a constitutional right to the appointment of counsel if he could not afford one, Detective Mayfield conditioned the appointment of counsel on whether "[t]he State feels that you're diligent . . . and further conditioned his right to counsel on whether or not the State believes he "needs one." Detective Mayfield's version of Miranda rights fundamentally altered the nature of Mr. Wright's constitutional right to counsel . . . . 
When the Supreme Court wrote that I "decided to address the adequacy of Wright's Miranda warnings sua sponte" it was apparently laboring under a misapprehension about what is contained in this voluminous record. It had apparently not been told that the parties submitted multiple briefs and presented at least two oral arguments on this very issue. At the hearing on the instant recusal motion the State acknowledged that the Miranda issue had been fully briefed while the matter was pending before me:
THE COURT: [T]here was briefing on the Miranda issue that I ruled upon, wasn't there?
THE STATE: Yes, Your Honor, many rounds of briefing.
THE COURT: On that particular issue.
THE STATE: It was no exaggeration saying many rounds of briefing on specifically on the Miranda issue. I don't believe that's any exaggeration.
I realize that by writing this I risk appearing to be obdurately clinging to the view that Wright's Miranda argument is not procedurally barred by Rule 61(i)(4). That is not my intent. Nor is my purpose here to quibble with the Supreme Court's conclusions. Rather, it is solely to show that, contrary to what an observer might infer from the passage in Wright-2013, I was not so determined to grant Wright relief that I invented a reason for him. b. My comments that I lacked confidence in the verdict do not require my recusal.
Having dispensed with the preliminary matter, I will turn to the State's two primary arguments. The first argument focuses on comments I made during the proceedings concerning the verdict in the guilt phase of Wright's trial. In Wright-2012 and in comments from the bench I expressed a lack of confidence in it. The State contends in its principal argument 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." The State overlooks, however, well-settled Delaware law, and also overlooks the fact that the Delaware Supreme Court expressly agreed with my conclusions.
i. The statements which allegedly show bias stem from my rulings on substantive issues which were upheld by the Supreme Court.
The analysis must start, of course, with a consideration of my statements which the State claims manifest bias on my part. As already mentioned, those statements stem from my rulings that I lacked confidence in the verdict. They were made in response to substantive constitutional standards established by the United States Supreme Court and followed by the Delaware Supreme Court, and the Delaware Supreme Court expressly agreed with my lack of confidence in Wright-2014.
a. The statements which allegedly show bias.
Although the State refers in its motion to my "repetitive and public comments, " it concedes that it relies exclusively 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 [used] to convict Mr. Wright. In fact I have virtually no confidence in the evidence."
• "As the Court pointed out in [Wright-2012] there is little if any, evidence to connect the defendant to the crime."
• "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."
The State argues that, "despite the Defendant's videotaped confession to the murder, " these statements show that I believe that "the Defendant is, in effect, innocent." An informed observer, however, would not reach that conclusion because that observer would be aware from Wright-2012 that I took into account that confession:
• "Aside from that confession and the dubious testimony of Mr. Samuels about Mr. Wright's purported jailhouse confession, there is absolutely no evidence linking Wright to this horrific crime."
• "[T]he only evidence against Wright is his confession, the statement of jail house informant Samuels, and the admission of Lorinzo Dixon during his plea colloquy that he participated in the crime"
My assessment of the evidence was not fanciful. At one of the Rule 61 hearings in this case the State conceded that ...