STATE v. COOKE, 0506005981 (Del.Super. 8-19-2010)

if I'm getting judged by a jury, I would allow the jury to decide that. That's the 12. That's what you picked the 12 for. The 12 is for them to judge you because if you let —

Court: They can judge you only on what is admissible evidence.

They can't judge you on inadmissible evidence.

Cooke: Right. Right, but if I allow the State to play what they want to play, they're going to try to make it look like, you know, that he said that, he said that, and that's all the jury is looking at because the jury —

Court: Mr. Cooke, it may be —

Cooke: The jury said itself — the jury said itself, We're going to go by evidence. They said it out of their own mouth. So that is evidence towards me to help me.

Court: Mr. Cooke, I don't know what is going to be played as far as anything that you said to the Newark police when they arrested you. I have no idea. It's very difficult.

Cooke: To me, I don't have nothing to hide. I haven't really said anything, you now, but I'm just saying for the benefit of me, this would benefit me. I mean humiliation before honor and right now I'm being humiliated through this whole process so I believe honor will come out at the end. I mean I'm getting advertised through the whole newspaper, through the media, you know, I'm like a bi-word for the people.

Court: What? I'm sorry?

Cooke: Bi-word.

Court: Bi-word for what?

Cooke: What the people using me as, their favorite song or tune.

Court: Well, again, I think some of what you're asking me, one of the reasons I can't answer your question, it is because I haven't heard the evidence in this trial.

I start out with this proceeding with a clean slate in connection with any of the hearings in terms of what I heard at any of the prior hearings in this case and any decision I make in this case, if it gets to me, is based only on what happens in the trial, nothing that happened up until start of today.

Cooke: I'm just saying if they pulling — — you know, if they pulling the wool over your eyes because of your age or whatever.

Court: Mr. Cooke, I've been here 18 —

Cooke: I know that, sir. I know that, sir, but it can happen because —

Court: Well, I don't deny it couldn't happen, but I'll tell you it's not likely.

Cooke: Right. But I'm just saying, if they are, you know —

Court: That's why they have two sides in every case.

Cooke: Right. And this case is still going.

Court: Well, anything else, sir?

Cooke: No, sir. Thank you.

Court: Sure.

Mr. Wood: Your Honor, just so the factual record is clear, all of the video and/or audiotapes that the defendant is discussing where provided in their entirety to the defense a long, long time ago and I guess you can sort of pick that up from what the defendant is saying since he knows what's on them.

Court: Well, not only that. It's one of the thing we talked about in the office conference whether, as has happened in two cases that I'm aware of, defense counsel in this case have listened to the entire tape rather than just rely upon the transcript.

Mr. O'Neill: With Mr. Cooke.

Court: Yes.

It also should be noted on the record that this proceeding is in Courtroom 6E and the door is open.

Okay. Anything Else?

Mr. O'Connell: Not from the defense, your Honor.

Court: All right. Then we can move to 8B.

Mr. Wood: Thank you, your Honor.

Mr. O'Connell: Thank you very much, your Honor.

Court: Thank you.

The record, of course, is that there were times when Cooke spoke up, sometimes in the jury's presence and sometimes not; none later on February 5th. The first was on February 6th. The record is equally clear that the Court did not intervene in the issue of which plea was to be entered. The same record shows Cooke repeated some of the same accusations of racial motivation, witnesses lying, and evidence tampering as he did in the first colloquy before the evidence started. The same record shows those accusations are/were inextricably intertwined with his position that he wanted a not guilty plea entered and his defense to proceed consistent with that.

The Supreme Court's mandamus opinion, the lack of clear authority as of 2007 for the Court to "intervene" in this conflict, and the dilemma and their probable objective of trying to save Cooke's life, made this Court very wary of whether or how to intervene in the Cooke/counsel plea conflict. All of this was a recurring concern at any time Cooke spoke during the trial. Lack of intervention has now been found reversible. Nevertheless, the likelihood magnitude of a non-reversible intervention is probably underappreciated, particularly in this case.

New counsel have been appointed. They are following Cooke's directive to enter a plea of not guilty and that is the posture of this case since it came back for retrial. The Court will now address, the specifics of Cooke's motion for this judge's recusal.

Discussion

Cooke's motion for recusal is premised on several grounds. One is that the United States and Delaware Constitutions mandate that the defendant in a capital case is constitutionally receives a fair trial. That right, of course, is beyond dispute.

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires and absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.

Cooke's next ground derives from the Delaware Code of Judicial Conduct which states:

Rule 2.11. Disqualification.

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

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

To start, this judge had knowledge of many of disputed facts prior to the first trial. Those facts, however, came to the Court's attention during pre-trial hearings, motions and other filings which were all matters of public records prior to the trial. With one exception those public items were the sources of this judge's pre-trial knowledge. The one exception were the New Jersey DYFS records in camera reviewed pre-trial mentioned earlier. Any record reviewed prior to trial became public record at trial. No one, of course, suggests any of that meant this judge had to recuse himself from the first trial.

See supra at 9-11.

One such hearing was the "proof positive" hearing. The Delaware Supreme Court has held that because the trial judge (then Judge Christie) had presided over a pre-trial hearing, a "proof positive" hearing, and decided other motions adverse to the defendant did not mean that judge had to recuse himself from the trial.

Del. Const. art. I, § 12

Steigler v. State, 277 A.2d 662, 668 (Del. 1971), judgment vacated in part on other grounds, 408 U.S. 939, 92 S. Ct. 2872, 33 L. Ed. 2d 760 (1972).

Most of the above is not really the basis for Cooke's motion to recuse this judge from presiding over the upcoming second trial. In sum, his motion raises two specific reasons for recusal. One, this judge sentenced him to death. Because this case remains a capital case, that fact should weigh heavily in favor of recusal. His other specific reason revolves around the exchanges which occurred during the first trial between him and this judge.

In Los v. Los, the Supreme Court stated this when a judge faces a motion recuse:

595 A.2d 381 (Del. 1991).

The requirement that judges be impartial is a fundamental principle of the administration of justice. To that end, rules of disqualification have evolved to ensure that no judge shall preside in a case in which he is not disinterested and impartial. As a matter of due process, a litigant is entitled to neutrality on the part of the presiding judge but the standards governing disqualification also require the appearance of impartiality.

The Supreme Court further held that when faced with a claim of personal bias under 2.11(A)(1), 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 the judge's impartiality.

Based on that analytical approach, this judge must first determine if he can proceed to preside over the case, not only the trial but any possible pre-trial hearings, the trial, and other matters free of bias or prejudice to Cooke.

Cooke argues it is that first test which is all that is needed. For that argument he relies upon Flonnory v. State. Flonnory was a capital case. The Supreme Court found that the trial judge's handling of a juror who had learned of highly prejudicial information about Flonnory, during the trial phase, but was not excused, required a reversal. What that juror learned, in the Court's view, established actual prejudice of the juror who should have been excused during the trial, and perhaps no penalty hearing held. When it reversed the conviction, it said this:

778 A.2d 1044 (Del. 1991).

Id. at 1056-57.

Thankfully, this and other similarly egregious circumstances that result in compromising a jury's impartiality are rare. When they do occur, however, the integrity of the judicial process must be preserved by affording a defendant, like Flonnory, the right to a new fair trial before an impartial jury. The judgments of the Superior Court are reversed. This matter is remanded for a new trial before a different judge.

It is the last sentence upon which Cooke relies to argue there is a per se disqualification of the first judge when the conviction and death sentence are reversed.

The limited precedent since Flonnory would appear to indicate there is no per se rule.

One case is State v. Charbonneau. The conviction and death sentence in Charbonneau were reversed. When remanded for retrial, the Supreme Court did not direct that a different judge preside over the case for retrial. Curiously, in remanding the case for retrial, the Supreme Court said in language with a ring familiar to this case:

Charbonneau v. State, 904 A.2d 295 (Del. 2006).

. . . but believe the trial judge's rulings unfairly thwarted the defendant's constitutional right to present her case in the way she and her counsel believe to be most effective.

On remand Charbonneau moved to recuse the same judge from presiding over the retrial. That judge in a thoughtful opinion denied the recusal motion. He certified two questions, as a result of his opinion, to the Supreme Court. In an en banc order from that Court, the following was stated:

State v. Charbonneau, 2006 WL 2588151 (Del. Super.).

(1) The Superior Court of the State of Delaware certified two questions to this Court in accordance with the Delaware Constitution, art. IV § 11( 9) and Delaware Supreme Court Rule 41. Specifically, by order dated June 2, 2006, the following questions have been certified:

a. Notwithstanding the trial judge's subjective belief that he is free of bias or prejudice, is there an objective appearance of bias a matter of law sufficient to cause doubt his impartiality?

b. If 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?

(2) Supreme Court Rule 41 provides, in part, that certification will be accepted by this Court only if there are "important and urgent reasons for an immediate determination by this Court of the questions certified."

(3) 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.

NOW, THEREFORE, IT IS ORDERED that the questions of law certified by the Superior Court of the State of Delaware are hereby REFUSED.

One has to be careful when reading tea leaves. If there were an opportunity for the Supreme Court to announce a per se recusal rule, however, as Cooke argues, that was it, but it did not.

Instructive also are State v. Manley, State v. Stevenson who are/were co-defendants. Their convictions for first degree murder were affirmed but their death sentences were reversed. The Supreme Court said that the original judge's asking to have the murder case assigned to him tainted the process. The original judge had presided over a suppression hearing in an unrelated case where Stevenson was the defendant The State's witness in the at case who testified at the suppression hearing was the victim of a later murder. Because of that and the judge's asking the murder case be assigned to him, the matter was remanded for a new penalty hearing to be conducted by a different judge. However, as part of the remand, there were also issues raised in post conviction relief motions filed by both defendants which that new judge had to first consider. This judge and that judge are the same.

Stevenson v. State, 782 A.2d 249, 253-60 (Del. 2001).

This Court ruled on Manley and Stevenson's motions for post conviction relief. Each defendant raised a number of issues. To deal with them, the Court had to recite the facts of the case — murder — which had been developed at the first trial. Their motions were denied. The Supreme Court affirmed that denial.

State v. Manley, State v. Stevenson, 2003 WL 23511875 (Del. Super.).

Stevenson v. State, 2004 WL 771657 (Del. 2004).

This Court's denial of the defendants' postconviction motions prompted them to file a motion to recuse. Their grounds were:

The defendants premise their recusal motions on four discrete portions from this judge's opinion denying their motions for postconviction relief and holding the penalty hearing would proceed, citing these passages:

1. In fact, the Swan Court distinguished that case from Chance by noting that there was "no credible argument, as in Chance, that Warren's death was unintended consequence of either Swan's or (co-defendant) Norcross' actions. The same can be said about the evidence in this case.

2. The evidence conclusively showed a planned and intentional killing in which two persons, these defendants, participated. Chance, therefore, is inapplicable to the facts of this case.

3. The evidence was overwhelming.

4. There is a key element of the record in this case which both defendants ignore or have chosen not to address. Whatever infirmities the Supreme Court found with the original trial judge's penalty decision, the fact remains that before this sentencing decision was made, the jury unanimously found beyond a reasonable doubt that four statutory aggravating factors existed. Fn Quotations are from this Court's decision but the four points of contention are from the defendants' Motion to Recuse (docket #209).

The Court denied the recusal motion reviewing the Canon and Los v. Los factors. The defendants did not seek an interlocutory appeal or certification of any questions to the Supreme Court. After the new penalty hearing was held and new death sentences imposed, the defendants appealed. The recusal issue was not raised on appeal and the sentences were affirmed.

Manley v. State, 918 A.2d 321 (Del 2007); cert. denied 550 U.S. 971, 127 S. Ct. . 2885, 167 L. Ed. 2d 1157 (2007).

Id.

There are obvious distinctions between this case and the Manley/ Stevenson cases. First, this judge did not impose the death sentences which were originally imposed. Second, the recusal issue was not raised on appeal even though an issue in this Court. Third, unlike the original judge in Manley and Stevenson this judge had no contact with Lindsey Bonistall at any time. The only "contact" was through the evidence presented in the guilt and penalty phases. Fourth, this judge did not ask to be assigned to the Cooke case unlike the original judge in Manley and Stevenson. Fifth, of course, this judge had no contact with wither defendant in the first trial.

But one point is particularly important. This judge had to familiarize himself from the full record of the first trial Manley and Stevenson and was fully aware, of course, that the prior judge had determined that the death penalty was the appropriate sentence. The second jury, of course, was not aware of the earlier death sentence as the jury in Cooke's retrial would not be.

The final point for their per se argument Cooke advances is this case itself. The Supreme Court reversed his conviction and death sentence on the ground he received ineffective assistance of counsel for their failure to plead him not guilty and conduct his defense accordingly. It also held this Court had erred for not intervening in his dispute with his trial counsel. As part of its opinion, the Supreme Court recited various instances of Cooke's outbursts in court and the exchanges between him and the Court. Yet with all of that, there was no directive for a different judge to conduct the new trial. The issue of counsel's role and/or duty in a case of this kind was difficult and one without much precedent. The constitutional issue of whether and how this Court should intervene in Cooke's disagreement with counsel was also difficult. These difficulties are reflected in this Court's struggles, now mistaken, before and during the trial. These difficulties are also manifest by Supreme Court's three to two vote.

Cooke v. State, 977 A.2d at 824-25.

While no trial judge likes to be reversed, the reversal is understandable and well reasoned.

This judge is free of bias and prejudice against Cooke. But that is only part of the first of the two tests. Because despite this judge's subjective views, there has to be a determination of whether there is an objective appearance of bias as a matter of law sufficient to cause doubt about my impartiality?

As noted, the 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. Cooke cites only one other case other than Flonnory to support his argument of an objective appearance. That case seems to suggest a per se rule in Arizona. The case is State v. Vickers, which held:

675 P.2d 712 (Ariz. 1983).

In a death penalty case, however, which is treated differently from non-death penalty cases, [citations omitted] we believe that there is an appearance of impropriety when a judge who has sentenced the defendant to death in a prior case, also tries the same defendant for another potential death penalty offense.

That has to be read carefully. It says the same judge cannot try the same defendant for subsequent murder when that judge has already sentenced that defendant to death in an unrelated, earlier case. That is not this case. And frankly it has been the practice in this Court for as long as this judge knows that, where a judge has tried a defendant for murder, he or she does not get that defendant in a separate trial on a later murder charge.

The Montana Supreme Court disagreed with Vickers:

We conclude that it does not create a per se appearance of impropriety for a trial judge to preside over a potential capital case involving the same defendant the judge had previously sentenced to death in an unrelated case.

Louis Cabrera and Louis Reyes, for example. One judge tried them for capital murder, though a life sentence resulted for Cabrera and Reyes pled to lesser offense. This judge presided over their trial for unrelated murders.

There is a fundamental factor to be kept in mind. Cooke's plea in the upcoming trial is not guilty. This, of course, means he is presumed innocent. Necessarily, this means many issues no raised or questions asked at his first trial will be raised and asked at his second trial. Some may be pre-trial, some will be during the trial.

Prior to the first trial, this judge made various rulings, some in his favor, some not.

See infra at 78-79.

One not in his favor was on his motion to suppress evidence form his residence. This Court's denial of that motion has been affirmed. Cooke v. State, 977 A.2d at 857.

This judge operates with a clean slate. The new jury will have to hear the evidence and decide if he is guilty or not guilty. If he if found guilty of first degree murder, that jury will hear the mitigating and aggravating evidence and make its sentencing recommendation based on the evidence it heard and, as is the law in Delaware, this judge will give it appropriate weight. Here, too, Delaware case law on a life sentence recommendation is noteworthy. If upon re-trial and if convicted, the penalty hearing results in a life sentence recommendation in the trial judge may override such a recommendation ". . . only if the facts supporting the death sentence are so clear and convincing that no reasonable person could differ."

"Appropriate Weight," Starling v. State, 882 A.2d 747, 759-60 (Del. 2005); high standard for overriding life sentence recommendation, Garden v. State, 844 A.2d 311 (Del. 2004).

Garden v. State, 844 A.2d at 315.

This judge finds there is not an objective appearance of bias or prejudice. That means the analysis turns to the second Los test: where there is no objective appearance of bias to cause doubt on impartiality, are there unusual circumstances or an appearance of bias which would warrant reassignment?

Jones v. State, 940 A.2d 1, 18 (Del. 2007).

Cooke's argument here is several-fold. One part is an overlap from the objective appearance of bias. The second part picks up where the first part left off. In the first part, Cooke cites to several United States Supreme Court cases wherein the due process right to a fair trial is referenced each time. But beyond or behind a each case are specific and distinct fact patterns which render them factually inapposite. These are discussed next. The Court has included other cases.

In re Murchison involved a judge who found a grand jury witness in contempt then presided over the witness' contempt hearing. The Supreme Court said the judge was like a one person grand jury — the accuser, and the judge, therefore cannot be disinterested. This judge has never been Cooke's accuser. The State of Delaware has been.

349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 2d 942 (1993).

Coperton v. Massey Coal Co. This case involved the question of whether a West Virginia Supreme Court justice who was one of three in a three-two decision and who had received massive financial support in his election campaign for the Supreme Court directly or indirectly from Massey should have recused himself. The Supreme Court held he should have. There is no issue of political influence in this case.

___ U.S. ___, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009).

Turner v. Ohio. The Supreme Court found that disqualification of a judge was required where he was the village mayor and fines he imposed paid part of his judge's salary and part went into the village general fund. There is no factual similarity to the case.

273 U.S. 510, 523 47 S. Ct. 437, 71 L. Ed. 2d 749 (1927).

Gardner v. Florida. In this death penalty case, the sentencing judge had access to information through a pre-sentence report which had not been made known to the jury, or to counsel. They jury recommended a life sentence, but based on that private information, the judge imposed a death sentence. The Supreme Court found this to be error, saying, "It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear, to be based on reason rather than caprice or emotion."

430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).

Gardner, 430 U.S. at 358, 97 S. Ct. At 1205, 51 L. Ed. 2d at 402.

There was no attack nor direct appeal in this case that the jury's 12-0 recommendation for a death sentence of this judge's sentence was based on caprice or emotion. Nor do current new counsel so argue in this recusal motion. Here is where Manley and Stevenson is instructive. In denying their recusal motion, this Court pointed out that any sentence imposed at the new penalty hearing would be based on the evidence at that hearing, not what happened before, and on the second jury's sentencing recommendation, not the first jury's sentence recommendation. In addition, the death sentence imposed here came from a jury's unanimous recommendation for it and on the same evidence it heard, nothing more, nothing less, unlike Gardner.

State v. Manley, Stevenson, 2004 WL 2419132, at *24.

Ungar v. Sarafite. In this case, an attorney-witness became quite contemptuous toward the trial judge. He was admonished outside the jury's presence to answer questions as asked and so admonished in the jury's presence. The difference between Ungar and this case is obvious. First, it was not a capital case, and second, the person acting out-of-line was a witness and not the defendant. Nevertheless, the Supreme Court said this (albeit dicta):

Petitioner, Ungar, claims his constitutional right to a fair hearing were violated because his contemptuous remarks were a personal attack on the judge which necessarily, and without more, biased the judge and disqualified him from presiding at the post-trial contempt hearing.

376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964).

The many exchanges are set out in the Supreme Court's opinion.

* * * * *

But we are unwilling to bottom a constitutional rule of disqualification solely upon such disobedience to court orders and criticism of its ruling during the course of a trial.

Liteky v. United States. Unlike Ungar, this case involved issues between the judge and the defendant. It was not a capital case. The best way to understand the recusal issue is to quote what was involved:

510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994).

In the 1983 bench trial, Bourgeois, a Catholic priest of the Maryknoll order, had been tried and convicted of various misdemeanors committed during a protest action, also on the federal enclave of Fort Benning. Petitioners claimed that recusal was required in the present case because the judge had displayed "impatience, disregard for the defense and animosity" toward Bourgeois, Bourgeois co-defendants, and their beliefs. The alleged evidence of that included the following words and acts by the judge: stating at the outset of the trial that its purpose was to try a criminal case and not to provide a political forum; observing after Bourgeois' opening statement (which described the purpose of his protest) that the statement ought to have been directed toward the anticipated evidentiary showing; limiting defense counsel's cross-examination; questioning witnesses; periodically cautioning defense counsel to confine his questions to issues material to trial; similarly admonishing witnesses to keep answers responsive to actual questions directed to material issues; admonishing Bourgeois that closing argument was not a time for "making a speech" in a "political forum"; and giving Bourgeois what petitioners considered to be an excessive sentence. The final asserted ground for disqualification — and the one the counsel for petitioners described at oral argument as the most serious — was the judge's interruption of the closing argument of one of Bourgeois' co-defendants, instructing him to cease the introduction of new facts, and to restrict himself to discussion of evidence already presented.

At issue as far as the majority (all nine justices agreed on the result that recusal was not warranted but used different approaches to that result) was concerned was what was "extrajudicial source." That source in Liteky was what happened at the first trial. Cooke's point here is what happened at the first trial which is in line with the claim of "extrajudicial source" which the Liteky Court said is "extrajudicial source" does not mean.

The Supreme Court went on to say:

The Judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. 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, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like interest innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." In re J.P. Linahan, Inc., 138 F.2d 650, 654 (CA2 1943). 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.

* * * * *

They apply whenever bias or prejudice exists, and not merely when it derives from an extrajudicial source. As we may have described, the latter argument is invalid because the pejorative connotation of the terms "bias" and "prejudice" demands that they be applied only to judicial predispositions that go beyond what is normal and acceptable. We think there is an equivalent pejorative connotation with equivalent consequences, to the term "partiality." See American Heritage Dictionary 1319 (3d ed. 1992) ("partiality" defined as "[f]avorable prejudice or bias"). A prospective juror in an insurance-claim case may be stricken as partial if he always votes for insurance companies; but not if he always votes for the party whom the terms of the contract support. "Partiality" does not refer to all favoritism, but only to such as is, for some reason, wrongful or inappropriate. Impartiality is not gullibility.

More specifically, the Supreme Court said:

Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism of antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

* * * * *

Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration — even a stern and short tempered judges's ordinary efforts at courtroom administration — remain immune.

And finally in finding that no recusal was needed, the Court said:

All of these grounds are inadequate under the principles we have described above: They consist of judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses. All occurred in the course of judicial proceedings, and neither, (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible.

It is important to note that the Supreme Court's ruling in Liteky revolved around a federal disqualification statute which reads identically to our Canon; except for a phrase as noted:

"(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonable be questioned.

"(b) He shall also disqualify himself in the following circumstances:

"(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceed — ing.

Illinois v. Allen. This case was not a capital case. It involved the defendant's conduct toward the trial judge and, the jury, and the failure to adhere to judicial admonitions and generally disruptive behavior.

397 U.S. 377, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).

`After his indictment and during the pretrial state, the petitioner (Allen) refused court-appointed counsel and indicated to the trial court on several occasions that he wished to conduct his own defense. After considerable argument by the petitioner, the trial judge told him, `I'll let you be your own lawyer, but I'll ask Mr. Kelly (court-appointed counsel) (to) sit in an protect the record for your, insofar as possible.'

`The trial began on September 9, 1957. After the State's Attorney had accepted the first four jurors following their voir dire examination, the petitioner began examining the first juror and continued at great length. Finally, the trial judge interrupted the petitioner, requesting him to confine his questions solely to matters relating to the prospective juror's qualifications. At that point, the petitioner started to argue with the judge in a most abusive and disrespectful manner. At last, and seemingly in desperation, the judge asked appointed counsel to proceed with examination of the jurors. The petitioner continued to talk, proclaiming that the appointed attorney was not going to act as his layer. He terminated his remarks by saying, `When I go out for lunchtime, you're (the judge) going to be a corpse here.' At that point he tore the file which his attorney had and threw papers on the floor. The trial judge thereupon stated to the petitioner, `One more outbreak of that sort and I'll remove you from the courtroom.' This warning had no effect on the petitioner. He continued to talk back to the judge, saying, `There's not going to be no trial, either. I'm going to sit here and you're going to talk and you can bring your shackles out and straight jacket and put them on me and tape my mouth, but it will do no good because there's not going to be no trial.' After more abusive remarks by the petitioner, the trial judge ordered the trial to proceed in the petitioner's absence. The petitioner was removed from the courtroom. The voir dire examination then continued and the jury was selected in the absence of the petitioner.

`After a noon recess and before the jury was brought into the courtroom, the petitioner, appearing before the judge, complained about the fairness of the trial and his appointed attorney. He also said he wanted to be present in the court during the trial. In reply, the judge said that the petitioner would be permitted to remain in the courtroom if he `behaved (himself) and (did) not interfere with the introduction of the case.' The jury was brought in and seated. Counsel for the petitioner then moved to exclude the witnesses from the courtroom. The (petitioner) protested this effort on the part of his attorney, saying: `There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this. I want my sister and my friends here in court to testify for me.' The trial judge thereupon ordered the petitioner removed from the courtroom.

The Supreme Court added this description:

After his second removal, Allen remained out of the courtroom during the presentation of the State's case-in-chief, except that he was brought in on several occasions for purposes of identification. During one of these latter appearances, Allen responded to one of the judge's questions with vile and abusive language. After the prosecution's case had been presented, the trial judge reiterated his promise to Allen that he could return to the courtroom whenever he agreed to conduct himself properly. Allen gave some assurances of proper conduct and was permitted to be present through the remainder of the trial, principally his defense, which was conducted by his appointed counsel.

Allen did not involve judicial disqualification. The decision involved Allen's due process right to be present during the trial. In upholding the trial judge's banishment of Allen after being warned several times following disruptive behavior, the Supreme Court said:

The trial court in this case decided under the circumstances to remove the defendant from the courtroom and to continue his trial in his absence until and unless he promised to conduct himself in a manner befitting an American courtroom. As we said earlier, we find nothing unconstitutional about this procedure. Allen's behavior was clearly of such an extreme and aggravated nature as to justify either his removal from the courtroom or his total physical restraint. Prior to his removal he was repeatedly warned by the trial judge that he would be removed from the courtroom if he persisted in his unruly conduct, and, as Judge Hastings observed his dissenting opinion, the record demonstrates that Allen would not have been at all dissuaded by the trial judge's use of his criminal contempt powers. Allen was constantly informed that he could return to trial when he would agree to conduct himself in an orderly manner. Under these circumstances we hold that Allen lost his right guaranteed by the Sixth and Fourteenth Amendment to present throughout the his trial.

* * * * *

It is not pleasant to hold that the respondent Allen was properly banished from the court for a part of his own trial. But our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor an the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes. As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and religion. Being manned by humans, the courts are not perfect and are bound to make some errors. But, if courts are to remain what the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case.

Standing Committee on Discipline of the United States District Court for the Central District of California v. Yagman. This case was not a capital case and did not involve exchanges between a party and the judge. It involved an attorney's conduct toward a judge. Counsel, of course, are held to a higher standard of conduct than what may be expected of litigants. Nevertheless, these comments are instructive:

55 F.3rd 1430 (9th Cir. 1995).

Yagman's criticism of Judge Keller was harsh and intemperate, and in no way to be condoned. It has long been established, however, that a party cannot force a judge to recuse himself by engaging in personal attacks on the judge: "Nor can that artifice prevail, which insinuates that the decision of this court will be the effect of personal resentment; for, if it could, every man could evade the punishment due to his offences, by first pouring a torrent of abuse upon his judges, and then asserting that they act from passion. . . ."

In the end, the Circuit Court found the remarks did not warrant discipline or for that matter recusal.

Johnson v. Carroll. The issue here was narrow. A judge of this Court had an ex parte conversation with an attorney about an upcoming sentence of Johnson. That attorney, not representing anyone in the proceedings, made negative, ex parte remarks about Johnson, who had been involved with that attorney in a case years before. There was no due process violation in the judge sentencing Johnson, after he had disclosed to counsel in the case the ex parte remarks. One key point is that all of the information this Court has comes from the prior proceeding and nothing ex parte or extrajudicial other than the first round of proceedings.

369 F.3rd 253 (3rd Cir. 2004).

Capano v. State. Capano, of course, at the time of the Supreme Court's first opinion was a capital case. One of the issues in that case involved the trial judge's limitation on Capano's right of allocution and admonitions to Capano in the jury's presence when he deviated from the limitations. Those limitations had been passed on to him by his lawyers and the judge addressed them directly with Capano. Some of his comments bear repeating as found in the Supreme Court's opinion:

781 A.2d 556 (Del. 2001) cert denied 536 U.S. 958, 122 S. Ct. . 2260, 153 L. Ed. 2d 835 (June 28, 2002).

Capano began his allocution by saying, "I'm not allowed to talk about the evidence, and the next think I was going to say was about the evidence, so I won't." Again, at a later point in his testimony, he said the reference to a matter concerning his daughters, "I'm not allowed to talk about that evidence. . . ." Finally, at the end of allocution, he said, "There are a couple of other things but better check and make sure they don't violate any rules. Maybe just one other."

Capano gave a lengthy allocution covering a number of subjects. He alluded to his accident defense, saying, for example, that his actions on the night of June 27 were those of a "panicked man," and were a result of "very cowardly decisions which I think when I was on the stand before I basically already said that much.

The Supreme Court went on to mention more of his comments and the trial judge's initial direction to remove him from the courtroom:

Capano raises on this appeal for the first time for plain error review not only trial judge's limits on discussion the evidence but also the trial court's reaction when Capano entered into a discussion of certain evidence. For example, Capano was discussing his pride in his daughters, and then veered into a discussion of what he viewed as harassment of his daughters, presumably by State officials. He told the jury that "my kids were harassed. They were lied to and. . . ." At this point, the trial judge interrupted Capano as follows:

Court: We're done. Please take Mr. Capano out of the courtroom.

Defendant: Can I take it back, Your Honor?

Court: No.

The trial judge immediately relented, however, stating in the presence of the jury:

I will let him continue. Sort of blown my rules apart here and I'll instruct the jury on that, but the next time you make such a blatant attack on the rules that you're forced operate under I will remove you. There won't be taking back anything. You will not be present for the rest of the trial.

Later, when Capano began discussing his relationship with Fahey, the trial court interrupted, saying:

Mr. Capano, if you have any remarks that deal with expressions of remorse, pleas for leniency, plans or hopes for the future, or statements about your own good person, some of which you have already made, please make them now. I will not tolerate any deviance from these conditions.

Capano raised the issue that the trial judge's rebukes of him substantially prejudiced him and that they conveyed to the jury a personal animus toward him. The Supreme Court noted that the trial judge in his sentencing decision specifically noted Capano's courtroom conduct but the trial judge did so as part of presenting a broader picture of the type of person Capano was. In this Court's sentencing decision, it did not mention Cooke's courtroom conduct at all, nor, of course, was it influenced by it.

Id. at 665.

Id. at 667.

The Supreme Court noted Capano was a lawyer versed in the system not an untrained defendant. In this Court's sentencing decision, Cooke's age of 36 and extensive criminal history were noted, in short, he was not a neophyte in the criminal justice system.

Gattis v. State. In this case, Gattis' attorney moved to disqualify the judge who was considering a motion for post-conviction relief. Gattis was/is a capital case. The basis for the recusal motion was a claim of personal bias by that judge against that attorney arising out of a harsh criticism by counsel of that judge in a prior murder case. That prior case, of course, would be an "extrajudicial source" in the Gattis case. The Court in Gattis found that the judge's reference in Gattis to what happened in Jones did not rise to the level where the judge should have granted the recusal motion.

955 A.2d 1276 (Del. 2008).

Jones v. State, 940 A.2d 1, 17-19 (Del. 2007).

Gattis, 955 A.2d at 1286.

The review of these cases was intended to evolve from those cases Cooke cited, such as Coperton, where the distinct facts make them inapplicable or of limited application to this case, to other cases more applicable. The evolution was to those cases where there had been, basically, an issue between the trial judge and either one of the attorneys or to one of the parties. Those latter cases were discussed to address the second Los factor that of an appearance of bias sufficient to prompt recusal. They were also meant to be a segue to the specific claims he makes which he argues rise to the level of an appearance of bias sufficient to obtain recusal.

Cooke leads into these examples by repeating two words from the Supreme Court's opinion reversing his convictions and death sentence: "extraordinary circumstances." A careful reading of the context of that phrase shows it refers (modifies) the brief recitation of counsel's choice of a defense as opposed to Cooke's desire to plead not guilty.

Cooke, 977 A.2d at 809.

The Court believes it unnecessary to serially address each instance cited in the recusal motion. First each instance cited occurred. Many of the cited instances are noted in the Supreme Court's opinion as his motion sets out. But they appear in the Supreme Court's opinion not because that it believed they prejudiced the jury by the fact they occurred but because they illustrated this Court's failure to address his desire to plead not guilty.

His desire to plead not guilty has to be examined in the light of his own comments, those he said in the jury's presence and outside of it and while testifying. His comments and testimony during the trial were presaged by what he said to the Court in the proceeding after openings on February 2nd. His comments in that proceeding show that he believes the police are lying, have fabricated evidence, that evidence was being suppressed, the prosecutors have tampered with the evidence, and that the whole process is racially motivated:

Cooke: Right, but it's known through process that prosecutors do use their peremptories to force blacks off. It's known for a fact that if you look at it, if you looked at the jury, there's only one black on there, but then you've got one that's sitting, you've got nine whites, you've got one Asian and one Hispanic. I mean that is a big difference right there. That's part of — like if it's bias or racial, that still means the same to me. But I'm just saying, as the judge, you are the overseer. I believe you can order the prosecutor to get them tapes fully and not delete nothing, not take nothing out of it and being played in its form, fashion, way that it was brought in that way.

* * * * *

Cooke: And I'm just saying for the young woman's tape to be played, because it's normal, you know, plenty of lies that she lied about even when she took the — you know, at the suppression hearing, she lied about a lot of things. As far with Detective Rubin, he done the same thing, you know. They didn't never meet up with each other's story and that tape proves that. That tape proves a lot of things, how, you know, the search warrant was really invalid.

* * * * *

Cooke: Right, but it delete even on the transcript the things that they were saying to me to start the conversation off. I mean with their cursing, with they're calling me scum, you know, pointing the fingers in my face and stuff like that. I mean that there proves, you know, how these cops are. That proves where I stand. That proves that this is a racial case. This is not a high profile case, but it is a racial profile case, that it could be indicated that a lot of people's part of this just by the way things are running, and if the media don't see that, you know, all they see is what the people's feeding them. They're not — you know, why have a jury that will only get half of the story and not the whole story? The jury can't see that.

During the trial, Cooke made these remarks:

Cooke: You're talking about my 6th Amendment Right; what about my 13th, my 14th, my 15th, my 19th, what about them Constitutional Rights? What about that? Don't I get an equal? I'm no equal? What about my Fifth Amendment? I keep passing the documents to him, he's not representing me right, that's misrepresenting me. What about the video you now allowing them to see? What about that? What about the evidence that Detective Rubin is hiding? What about the pipe he found? Huh? What about the boots at 208 Murray Road? He seized my boots on that, not no homicide. What about the hair that was found on Lindsey Bonistall's left hand that was Caucasian? What about the two DNA documents I got, three DNAs found in that young woman, European, native American and African. What about that? Tell the people about that. Yeah.

* * * * *

Court: Mr. Cooke, just so the record is clear, obviously, you're now back in the courtroom and have chosen to return to the courtroom and that means that there will be no further outbursts, disruptions, or anything like that, by you. Do you understand, sir? It's just a yes-or-no answer. That's all I want.

Cooke: I'm not even getting represented right. Why you give me public defenders, and they misrepresent me? One already told me that he was racist, prejudiced, Mr. Kevin. You gave me a racist public defender.

Court: I've known Mr. O'Connell a long time, and that is —

Cooke: That's what he told me.

Court: I think it's highly unlikely that he told you that.

Cooke: No, it ain't. No, it's not. They're not representing me. Then, if he's not racist, why didn't he bring up the hair situation? They had hair found in the bathroom, hair in the left hand, hair in her bed sheets, hair in the carpet. I get these documents; but the media, you know, they don't write about that, though. They write about things — they try to be negative about Mr. Cooke. I read about that, you know? I read about how the fingerprints didn't come back as mines, how the glove prints didn't come back as mines, how the boot prints didn't come back as mine, phones calls. You didn't want it in evidence. The DNA, you know, three types of DNA that came from Florida. That was signed by Thomas- Detective Thomas, you know?

* * * * *

Cooke: I believe the State is very skittish, skittish of what I have to say and what the documents they try to hide. I mean, that is a big case. It's about publicity, to me. You know, this ain't a high-profile case. This is a racial case. You know, the media don't talk about that, though. I don't see them talking about nothing like that, though. You know, I guess you're going to have the doctor come in, try to say that the drugs that was found in her system, she couldn't detect it. How that can be? I got the papers from 2006 where Mr. Wood himself signed the paper acting like he didn't know what it was in her system. You know, Detective Rubin found a weed pipe.

* * * * *

Court: Just a minute, sir, I have reviewed, as you know, the entire tape taken of the session that you had with Miss Carter.

Cooke: I'm not talking about Miss Carter.

Court: I understand. Hold on. I'm not finished yet. Let me finish please.

I viewed the entire session you had with Miss Carter where she was getting handwriting exemplars from you. I needed to see that in connection with the pretrial ruling I made with regarding admissibility or inadmissibility of some of what happened. I have not seen any tape or any version, transcription or whatever, of the session that you had with the Newark Police, the one that lasted about four hours or so, is being told to me. I don't know actually how long it lasted. I'm just being told how long the whole thing did take. Now, I don't know anything about name-calling or anything else like that. I just don't know because I've never seen it.

Cooke: They cut pieced out, though. They cut pieced out of the tape. It's tampering with evidence.

The record, post-remand, is blank whether Cooke still entertains all these views. It is unknown, obviously, if he does, how much current counsel's decisions are or will be affected by his views.

The trial record is that, pursuant Shockley v. State, trial counsel sought an in camera meeting with this judge to determine their obligations regarding Cooke's upcoming testimony. Cooke refers to that meeting in his recusal motion as a basis for claiming bias or the appearance of bias. Cooke cites a remark this judge made about the evidence being "pretty overwhelming." Again, however, these words have to be taken in the context of the discussion with counsel:

565 A.2d 1373 (Del. 1989).

Cooke's Motion for Recusal at p 17.

Id.

Mr. O'Neill: I'll add that in my opinion right now at this moment in time, Mr. Cooke subjectively believes he did not kill Lindsey Bonistall. And that's his belief, notwithstanding the avalanche of evidence to the contrary.

And although this is in some way like Shockley, it's different in that we cannot say, given our opinion of his subjective belief, that he did not kill Lindsey. In that sense it would not be perjury. But a related but sort of different basis, we're charged with representing him and we're trying to keep him from getting a death sentence. And in our view, as his lawyers, participating in the direct-examination with him would assist him not at all, it would hurt his chances to avoid a death sentence.

And we've been consistent with that since the start of the case in pursuing the claim of guilty but mentally ill. And for us to be now questioning him in front of the jury would, in our view, undermine our credibility before the jury, and we think that's ultimately unfair to Mr. Cooke. And it's a — it's ironic that ultimately the judgments that your Honor has to make are to make sure that Mr. Cooke's rights are protected and he is not treated unfairly.

And, you know, in my opinion and Kevin's opinion, you've been bending over backwards to that and have succeeded. And in this instance we think if we're called upon, even to introduce him and say he's going to testify to you, to the extent we have any credibility with this jury, we're going to undermine that. And that's the least- the least thing we can afford to do.

* * * * *

Court: I'm just looking a little bit further at Shockley here, that's why I'm quiet.

The other thing too, despite whatever argument we had earlier — argument, I'm talking about the legal issue sense. The jury's heard from Dr. Turner that he confessed to killing her and what you're telling me, the indication is very strongly that he's going to say something to the opposite. And you have evidence, not the least of which is the DNA, the two DNAs, which is for these purposes, I'll say pretty overwhelming.

Mr. O'Neill: We agree. You're not-

Court: I'm trying to choose my words carefully for obvious reasons.

Mr. O'Neill: Understood. I think I already referred to it as an avalanche of evidence.

Court: You did.

He argues the communication from counsel and this judge's responses creates a probability of bias against him. One lesson from Shockley itself is that what the judge learned from defense counsel did not warrant a reversal of the conviction.

Motion to Recuse at 18.

Cooke wants it both ways. He does not want defense counsel to be able to meet with the trial judge under circumstances such as counsel in Shockley and his case present or require. On the other hand, the Supreme Court has said under these circumstances, trial counsel have an ethical obligation to seek guidance from the trial judge. The trial judge, of course, is in the unique position to assess the evidence of guilt which was admitted at trial. Such an assessment weighs on what the judge and trial counsel work out. This judge's remarks made in that meeting with defense counsel were a necessary part of the process and betray no bias of any kind.

In a sense, Cooke's argument about defense counsel's meeting with this judge is akin to the recusal argument made in Manley/Stevenson that reference to the evidence betrayed a bias. The remand trial is on a clean slate.

Supra at 59-61

Cooke's testimony following counsel's " Shockley" meeting with the Court provides further insight into the issues he personally raised during the first trial:

Cooke: Okay, he said to move to another case. All right. Well, actually they brought six doctors to me: Dr. Griffin, Dr. Bernstein, Dr. Alvin Turner, Dr. Stevens, Dr. Barowski, a professor named James Walsh. You know, and soon after I had trouble with one doctor, Dr. Alvin Turner. Even Dr. Bernstein that I told constantly that he was trying to actually use psychology on me saying that I believe that what you say, what you say you say that you believe what you was telling me. And I said, please don't do that to me. So he was basing his own opinion by what the public defender already pushed to him, persuaded him.

So as time go on, I get to talk to other doctors. They told me out of their own mouth that they was told by the public defenders that I was already guilty. So they prejudged me through this whole thing. So that's why you heard what they said.

So as the outbursts as you heard me say I'm not guilty, I never took this mentally ill defense. You seen his presentation. His presentation was Mr. Cooke is guilty but he's mentally ill. You seen every witness that came up there that he never- he never even tried to fight, period.

As he got the documents, which I have the documents. Not one time he did that for me. So he has misrepresented me and I'm quite sure you seen that as well. He know I didn't do this.

You know it. And the State knows it, too. You know you ain't even present all the evidence. All the hair that as found at that scene, in the young woman's bed, on the floor, the envelopes in her left hand, in the bathroom. Nobody brought that to their attention, huh?

The marijuana pipe found in the room, they ain't bring to evidence; right? Nobody will admit to nothing. Nobody take responsibility. But you see me, because I got a criminal record — which I mainly got a drug record. I might have did charges somewhere else, I don't dispute that, but you blame me because you have one else to point at.

There's video y'all haven't see, and I don't believe y'all seen them, period, about the young woman testament (Sic), how she got on, Ms. Campbell. FBI documents, there was transcripts that Detective Rubin tampered with. You didn't tell the jury about that . How she said constantly that it resembles Mr. Cooke but it's not Mr. Cooke.

Same thing with Ms. Amalia Cuadra, forged documents. She never said it was me, but when all of a sudden she come here she says it's me by making me a figure, meaning — making an image as she claims she saw me. This woman never seen me. That was a photo phony point out that y'all did.

Forged documents. She said the person was husky built, husky, deep face, dark skin, 180. 180. They made a sketch. Her sketch was from a one to ten. That sketch that you seen on the enhanced thing, she said it was a ten. Then she said it was a nine. That's in the documents. On that sketch you don't see nothing on there saying the person had a pudgy face, supposed to have some type of freckles on his face and he had — his face was shaved where they seen bumps. You seen none of that, but all of a sudden these witnesses come, everybody says him.

And you got Payless people. They can say that for money, financial problems. You seen that at the end of their testimony. They — they was hoping to get the money, that's what they said. They said, well, I hope so.

These counsel have misrepresented me so bad. They have railroaded me through this whole thing. Not even that, the media had dragged my name through this whole process, since day one, since I've been locked up until now.

The judge himself has threatened me. On February the 2nd, on a Friday, when I talked to him about these counselors.

Not event that, he even advertising in the newspaper as well by making this statement as of October 28th, 2005 on a Friday at the proof positive hearing, you said most likelihood Mr. Cooke will be convicted of first degree murder. As a judge conduct rules, you're not supposed to broadcast nothing like that. That means that you're favoritism (sic) the family. That was in 2005, in the transcripts and even in the newspaper. Yes, you said that. And now you expect me to hold my tongue back. I mean, you expect me to abide by your rules. Like I'm supposed to fear you.

The only person I fear is God. And if I die, like I said, I die for the truth. This woman wasn't who se — who they say she was. She had friends on Madison Drive, on Lincoln Drive. Roommate came in and lied. Three DNAs found in this one woman. Three DNAs. They sent the one-document paper — it was a paper they got sent to Florida, came back and had three DNAs found in this young woman. Then they claiming — claiming there's three personalities in one person. That personality, huh? Three personalities.

That's their personality for three nationalities (sic) as they use the mentally ill defense to railroad me. They want to make you believe that I'm crazy.

Sure, I went to the infirmary when I was in the institution over there, but you can imagine why I went to the infirmary. A person like me coming in with a serious charge like that. Not even that, a young woman that had my childrens (sic) agreed with these, you know, public defenders and agreed with the prosecutor to work against me for no reason, because he was threatened.

But if they would have showed y'all the video, you would have seen all this. The interrogation, how they threatened her, she's crying, nine months at the time. She got four childrens, so imagine how she was feeling. Threatening to take her to jail, take her government assistance away from her. Not even that, I got letters and documents to prove that. None of this was mentioned though, nothing. Everything is point the finger my way.

I been got rid of these public defenders. I fired them a long time ago. The judge allowed me to keep them.

The judge. He took all my human rights away from me, my 5th one, my 6th, 13th, 14th, and 15th. Denied all motions, every last one of them. You expect me to be quiet, setting me up because I had sex with the young woman.

This is a racial case. It ain't got nothing to do with no fair trial. I never had a fair trial. FBI reports come back negative. Phone calls come back negative. They didn't even show you them, did they? But they got the young woman to get on the stand that says all three of those calls is mine.

Mr. Woods is the one that signed for it. You the one signed for it. I took the phone example. You the one signed for it. And then he says admissible (sic), would not allow it in Court. Came back negative. Fingerprints come back negative. Hair, come back negative. Glove prints that they took from my job, negative, don't match no prints. Footprint, not even that, negative.

Actually was a footprint found at the scene of that homicide. A footprint, no boot print. Yes, I got the documents. It was a footprint. They seized my brand new boots. Those boots y'all seen as brand new for a 208 Merry Road break-in that that a boot print was found on toilet paper. Remember when Mr. Smith got on, the FBI agent, they stopped at the toilet paper because that's what the boots was seized for. No boot print was ever found at no homicide scene.

Then you have different detective claiming they seized my boots while they was — I was incarcerated at their facility. Different detectives. How many detective are going to seize a pair of boots, each one claiming.

This man called me nigger underneath of his tongue, cursing at me, call me scum. Detective Rubin, the on that jumped on me, you know, actually supposed to help when the incident — when I talked out of order. He was anxious to do that. He was always anxious to do anything to me. If you see — if you seen the interview tape, you should have seen how he was acting. And they talk about me. But just — just picture a person who they came to and already blaming you. So how a person supposed to react?

They came to me intentionally. They was already blaming me. If you seen the interrogation tape, it was four-and-a-half hours long. Four-and-a-half hours long interrogation. You expect me to be quiet, hmm?

My thing is, I ain't never do that. I don't know what happened to this young woman. And I knew her but I had no intention of killing nobody. Not me. I did crimes, sure, I admit to my faults, but I know I ain't never killed nobody in my life.

For one thing, I got too many childrens to worry about to worry about that, to waste my life for something like that. The thing is, they don't want to believe this woman was like that, that's the whole thing. Because she went to college, they don't believe that college people, students, period, is supposed to be mingle with black people.

If anybody went to college in here, we know the college creed; right? The college creed is this, go to college, go away from your home, the college becomes your guardians. It's not the parents no more.

One thing, they like to have sex, we know that. They like to get drunk, we know that. They definitely like to do drugs, we know that. They turn away from their religion, we know that. And they have the most STD's, we know that. Don't let these suits fool you, what they got on, because they real shysty (sic) in this courtroom, scams. Every time you go in, they got a scam for me. Right now I got shackles on me.

Yes, I'm not scared. Believe that? I'm not afraid. Far from that. I've been isolated ever since I've been incarcerated. Those rooms is enough to make a person go crazy, you know?

I'm not mentally ill. They know I'm not mentally ill. I'm quite sure the prosecutor know I'm not mentally ill. And the judge even know I'm not mentally ill.

How can something that don't even come back to me, but all of a sudden I'm mentally ill. They never wanted to fight the case, period. My own public defender told me when I first met him, he says, I'm not here to say you innocent, I'm only here to get the death penalty off you. He says if Johnny Cochran was alive you would beat the case.

Mr. O'Neill. That supposed to be a professional? Lawyer? That's not professional. That means to tell me that everybody nearly — a person that's black mainly is going to be convicted from his conduct.

And not only that, Mr. O'Connell told me he's racial. How does that sound? Yes. Did you not? Right.

Not only that, I got a juror that's Number 9, his son was part of this homicide —

Mr. Wood: Objection.

Court: Hold on. Mr. Cooke, please, that's not part of this proceeding.

Cooke: But that's railroading me.

Court: Mr. Cooke.

Cooke: That is railroading.

Court: — please move on to another subject matter.

Cooke: Okay. I know a young man, about 52, his son got incarcerated for something very seriously and the sided with the — what we call the prosecutor. Sided with the prosecutor to convict a person to get his son out of trouble. Number 9. Number 9.

Mr. Wood: Objection, Your Honor.

Court: Mr. Cooke, I asked you please to move on to another subject area. The jury will disregard that last comment.

Cooke: If I was a juror I would go back and really understand how this — how this whole situation — how this case is really running. Before you convict an innocent man for not doing nothing, just for having sex for — with a young woman that the parents really don't want to accept. They don't really want to accept her behavior, how she really was. You expect me to sit her and explain myself?

Everybody in here, I'm quite sure, had one night stands, period. And if you didn't, I mean, you're sitting back lying.

Not even that. I had my sons with me when I met Miss Bonistall, my two sons. They was never even called for a witness on by behalf. Why? Because the State threatened Ms. Campbell so bad that they don't even want them to testify. Only for them, but not for me. That's how bad they threatened her.

Not only that, they've been going out there for like months — months — making sure she's all right, making sure nobody's threaten her. Not even that, my public defender was part of it. He even took my childrens to the mall. Look how agreeable that is. Yes, look how agreeable that is.

And you said they was working for me? They never was working for me. In reality, this is a mistrial. This is a mistrial represented bad with a scam. The man that's seated as Number 9 son part of this crime.

* * * * *

Court: Okay. I understand what you're saying, but I need an answer to my question. Are you going to make any references to any jurors, anything else you're going to say after I bring them back in?

Cooke: I mean, you actually want me to be railroad by a jury that was forced. It was 163 white people on the jury. You had 4 blacks. You excluded all of them except for two. And you said that this is a fair trial? 163 whites, 12 made it.

* * * * *

Cooke: It was plenty of stuff they didn't even introduce. As a matter of fact, come to find out they know this young woman was never raped.

She was intentionally killed by someone. How could you be raped with all your clothes on, get tied up, beat up so bad like that, then thrown in the tub with your favorite guitar?

* * * * *

Court: Mr. Cooke, please remember that I did instruct you to refer to things which are in evidence.

Cooke: This is evidence. The young woman spoke about —

Court: Mr. Cooke.

Cooke: The young woman that got on the stand spoke about saying all three of those calls was mines. How can I defend myself when the public defender's not doing it. He had these documents. He even helped to sign — put admissible on it.

When cross-examined he said this:

Mr. Wood: And today you've told the jury, while under oath, that you had consensual sex with her.

Cooke: Yes, I did.

There was no question that, as Mr. O'Neill said, Cooke believes he is innocent. New counsel will adhere to his not guilty plea and work with the evidence presented at the second trial. One issue may well be a concern Cooke raised about his original trial counsel; that they were not asking the questions he wanted. There would be other issues between his counsel and himself which this judge might have to resolve.

In light of the record spread throughout this opinion, this judge is fully confident the issues before and during the new trial can be handled without bias or the appearance of bias. The Supreme Court held this judge committed error in not addressing or resolving Cooke's disagreement with his counsel. That is and was an issue of constitutional dimension and not of this judge's interaction on a personal level with Cooke. By personal, that means, there was no finding of bias or finding of apparent bias.

An objective view is that there is not an appearance of bias sufficient to prompt this judge to recuse himself.

Conclusion

For the reasons stated herein, defendant James Cooke's motion to recuse is DENIED.

IT IS SO ORDERED.