IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
. I.D. No. 0612001862 (Kane)
V. : and 1302010193 (McNeil)
THOMAS F. KANE and
NATHAN McNEIL,
Defendants.

Submitted: March 1 3, 20 l 9
Decided: March 29, 2019

ORDER
Upon Defendants’ Motions to Recuse the Bench
Dem`ed.
Thomas F. Kane, pro se.
Nathan McNeil, pro se.

Marie T. Knoll, Esquire and John Williams, Esquire, Delaware Department of Justice,
Dover, Delaware; attorneys for the State.

WITHAM, R.J.

State v. Thomas F. Kane & Nathan McNeil
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

INTRODUCTION

Presently before this Court are four pro se Motions for Recusal filed by Roger
L. Johnson, Anzara M. BroWn, Thomas F. Kane, and Nathan McNeil (hereinafter
“Defendant” or Defendants”). All four Defendants seek recusal of the judges Who
Were responsible for their respective sentences pursuant to their interpretation of a
recent Third Circuit decision in Aa'ams v. Governor of Delaware.

After a review of the Defendants’ motions, the State’s response in opposition,
and the Defendants’ consolidated reply brief to the State’s answer, it appears to the
Court that:

FACTUAL AND PROCEDURAL HISTORYl

l. Each of the Defendants Were tried and convicted in the Kent County
Superior Court between the years 2000 and 2014. The Court Will briefly summarize
the circumstances for each Defendants’ conviction.

A. Roger L. Johnson

2. Defendant Johnson Was convicted by a Kent County Superior Court jury on
May 25, 2000 of two counts of first degree robbery, two counts of possession of a
firearm during the commission of a felony (hereinafter “PFDCF”), and second degree

conspiracy.

 

1 The Court notes that the motions for Defendants Johnson and Brown appear to be similar
to each other, and have been assigned to Judge Jeffrey J Clark, Delaware Superior Court, Kent
County. These two motions Were filed subsequent to the Third Circuit’s decision in Adams v.
Governor of Delaware, 914 F.3d 827 (3d Cir. 2019). The motions made by Defendants Kane and
McNeil, also filed aRer the Third Circuit’ s decision in Adams, are also similar to each other and have
been assigned to Resident Judge William L. Witham Jr., Delaware Superior Court, Kent County.

2

State v. Thomas F. Kane & Nathan McNel`l
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

3. On November 15 , 2000, the Superior Court declared Defendant Johnson a
habitual offender, pursuant to Section 4214(a), Title ll of the Delaware Code and
sentenced him to a mandatory twenty years at Level V incarceration

4. The Delaware Supreme Court affirmed Defendant Johnson’s convictions
and sentences on direct appeal.2

B. Anzara M. Brown

5. Defendant Brown was convicted by a Kent County Superior Court jury of
various drug and weapon offenses.

6. In a corrected sentence order of December 16, 2014, Defendant Brown was
declared a habitual offender pursuant to 11 Del. C. § 4214(b). He was sentenced to
a mandatory Level V incarceration for his Tier 4 drug dealing conviction.

7. Defendant Brown was also declared a habitual offender pursuant to 1 l Del.
C. § 4214(a), and was sentenced to twenty-five years Level V for possession of a
deadly weapon during the commission of a felony (hereinafter “PDWDCF”) and two
years Level V incarceration for carrying a concealed deadly weapon (hereinafter
“CCDW”).

8. The Delaware Supreme Court affirmed Defendant Brown’s convictions and
sentences on direct appeal.?J

C. Thomas F. Kane

9. Defendant Kane pled guilty, but mentally ill to first degree murder and other

 

2 Johnson v. State, 2002 WL 134761 (Del. June 18, 2002).
3 Brown v. State, 117 A.3d 568 (Del. 2015).

3

State v. Thomas F. Kane & Nathan McNeil
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

related offenses in Kent County Superior Court on February 29, 2008.

10. In a March 3, 2008 corrected sentence, Defendant Kane received a
mandatory life sentence pursuant to ll Del. C. § 4209(a).

11. The Delaware Supreme Court denied Defendant Kane’s post conviction
relief motions.4

D. Nathan McNeil

12. Defendant McNeil pled guilty to second degree murder and PFDCF on
March 18, 2014 in the Kent County Superior Court.

13. Additionally on March 18, 2014, Defendant Kane was sentenced to thirty
years Level V incarceration, suspended after 25 years for probation.

14. While Defendant McNeil did not file a direct appeal to the Delaware
Supreme Court, the Supreme Court affirmed this Court’s denial of post conviction
relief in 2016.5

PARTIES’ CONTENTIONS

A. The Defendants

15. The Defendants, citing Adams v. Carney6 as their primary basis of support,
apparently argue that their respective Superior Court sentencing judge was

unconstitutionally appointed to the Bench and therefore their individual sentences

 

4 Kane v. State, 2016 WL 1165949 (Del. Mar. 17, 2016).
5 McNeil v. State, 2016 WL 5116302 (Del. Sept. 20, 2016).

6 2017 WL 6033650 (D. Del. Dec. 6, 2017), ajj"a' in part, rev ’d in part 914 F.3d 827 (3d
2019).

State v. Thomas F. Kane & Nathan McNeil
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

must be vacated, resulting in immediate release.

16. Defendants McNeil and Kane additionally request the appointment of a
new judge to conduct additional proceedings, and assert that they have a right to an
unbiased tribunal and that no bias need be shown.

B. The State

17. The State, in opposition, argues that Defendants have misrepresented the
holding of Adams, as it relates to their individual cases. Specifically, the State argues
that while the Third Circuit found that Adams’ freedom of association rights were
violated by the Delaware political balance requirement regarding applications to the
bench,7 the Adams court did not find that the Delaware court system, as a whole, to
be unconstitutional, nor did it make any additional findings regarding Article IV,
section 2 of the Delaware Constitution.8

STANDARD OF REVIEW
18. The Delaware Judges' Code of Judicial Conduct reads in pertinent part:

[a] judge should disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned, ..., where the judge has
personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding9

19. This Court has crafted a two step analysis in reviewing a trial judge's

 

7Aa'ams, 914 F.3d at 843.
8 Id.

9 Jackson v. State, 684 A.2d 745, 752 (Del. 1996); see also Del. Judges' Code of Judicial
Conduct R. 2.11 (governing Disqualification).

State v. Thomas F. Kane & Nathan McNeil
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

recusal decision: (1) whether, as a subjective belief, the judge was satisfied that he
or she could proceed to hear the case free of bias or prejudice concerning a party; and
(2) whether there was an objective appearance of personal bias sufficient to cast
doubt on the judge’s impartiality.10
DISCUSSION

20. The primary basis for the Defendants’ contentions is based on their reading
and interpretation of Adams. The State, in opposition, proposes a very different
interpretation Because of the diametrically opposed contentions regarding Adams,
the Court feels that a brief synopsis of Adams is appropriate

21 . In Aa'ams, 11 a Delaware lawyer filed an action for declaratory judgment and
injunctive relief under 42 U.S.C. § 1983. The plaintiff, a political independent,
wished to seek a judicial appointment in Delaware, and challenged the
constitutionality of the Political Balance Requirement provision of the Article IV,
Section 3 of the Delaware Constitution. The Plaintiff moved for summary judgment
and the Chief Magistrate Judge granted the motion on December 6, 2017.12

22. The Governor of Delaware, appealed to the United States Court of Appeals

for the Third Circuit, where the court affirmed in part and reversed in part, the district

 

10 Heame v. sm¢e, 176 A.3d 715, 2017 wL 6336910, ar * 3 (Dei. 2017) (Table) (ciring Los
v. Los, 595 A.2d 381, 384-85 (Del. 1991).

11 Adams, 914 F.3d at 832-33.

12Ia'.

State v. Thomas F. Kane & Nathan McNeil
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

court’s grant of summary judgment.13 The Third Circuit held that portions of
Delaware’s constitution that limited one’s ability to apply for a judicial position while
associating with the political party of his or her choice violated that individual’s
freedom of association guaranteed by the First Amendment of the United States
Constitution.14

23. In this case, the Court can dispense with the Defendants’ arguments
quickly. First, the Defendants have suggested that the Third Circuit’ s ruling in Adams
stands for the proposition that all sitting Delaware judges, of any court, lack
constitutional authority to preside over the cases before them. In other words, every
Delaware judge is illegitimate.

24. The Court emphatically disagrees with this interpretation of Adams. Here,
it appears that the Defendants interpretation of Adams is misplaced. Nowhere, in
either Adams holding, does the district court or Third Circuit speak to or conclude as
to the legitimacy of Delaware judges, nor does either court make any finding
whatsoever, in relation to Art IV, § 2.15 On the contrary, Judge McKee, in his
concurrence stated that “[p]raise for the Delaware judiciary is nearly universal, and

it is well deserved. Scholars and academies routinely refer to Delaware’s courts as the'

 

13 Adams, 914 F.3d at 843.

14 Id. (In a portion of the holding not relevant to this case, the Third Circuit held that because
the plaintiff in the case had no standing to challenge sections of Art. IV, § 3 dealing with the
Delaware Family Court and Court of Common Pleas, the court reversed the district court’s order as
it pertained to those sections. See Id.).

15 Del. Const. art. IV, § 2 specifically controls the qualifications of judges for the various
courts within the State,

State v. Thomas F. Kane & Nathan McNeil
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

preeminent forum for litigation, particularly for cases involving business disputes.”16
Thus, the Court finds that the Defendants’ first argument is without merit.

25. Second, the Court finds no grounds to support a finding that the sentencing
judges were in some way bias. Nor, for that matter, have any of the Defendants made
allegations of bias. Indeed, the record is silent as to any evidence that would suggest
even a hint of bias.

26. However, Defendants McNeil and Kane, citing Williams v. Pemzsylvam'a,17
still argue that they are not required to show bias. In Williams, the United States
Supreme Court held that under the Due Process Clause there is an impermissible risk
of actual bias when a judge earlier had a significant, personal involvement as a
prosecutor in a critical decision regarding a defendant’s case.18

27. Again, the Court disagrees. Delaware law clearly states that a judge’s bias
must be demonstrated by a defendant.19 In this case, the Defendants appear to rely
primally on the Third Circuit’s decision in Adams to advance their cause.
Unfortunately for the Defendants, that is not enough to carry the day. Since none of
the Defendants have provided, nor attempted to provide, any evidence of record to
suggest any judicial bias, or even the inference of judicial bias, the Court declines to

do it for them.

 

16 Adams, 914 F.3d at 844 (McKee, concurring) (f`ootnote omitted).
17 136 s.Cr. 1899 (2016).
18 Williams, 136 S.Ct. at 1905.

19 Jackson, 684 A.2d at 752 .

State v. Thomas F. Kane & Nathan McNeil
I.D. No. 0612001862 (Kane) & 1302010193 (McNeil)
March 29, 2019

CONCLUSION
28. F or the above stated reasons, the Defendants Thomas F. Kane and Nathan

McNeil’s Motions to Recuse the Bench are DENIED.

 

IT IS SO ORDERED.
Hon. William L. Witham, Jr.
Resident Judge
WLW/dmh

oc: Prothonotary

cc: Thomas F. Kane, pro se
Nathan McNeil, pro se
Marie T. Knoll, Esquire
John Williams, Esquire

 

 

