State v. Jackson, III, ID. No. 92003717DI (Del. Super. 5/28/2010)

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STATE OF DELAWARE, v. ROBERT W. JACKSON, III, Defendant.

ID. No. 92003717DI.

Superior Court of Delaware, New Castle County.

Submitted: April 9, 2010.

Decided: May 28, 2010.

Appeal from in the Supreme Court: No. 622, 2008.

Upon the Supreme Court's Remand for Consideration of Defendant's Claim Under Gardner v. Florida.

Elizabeth R. McFarlan, Esquire, Deputy Attorney General, Gregory E. Smith, Esquire, Deputy Attorney General, Thomas A. Foley, Esquire, Attorney for Defendant.

John S. Malik, Esquire, Attorney for Defendant.

REPORT TO THE DELAWARE SUPREME COURT OF FINDINGS OF FACT AND CONCLUSIONS OF LAW.

RICHARD R. COOCH, J.

This 28^th day of May, 2010, upon consideration of the Supreme Court's Order of Remand of January 12, 2010 directing consideration of Defendant's due process claim under Gardner v. Florida in connection with his sentence of death, this Court reports the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The facts pertinent to resolution of Defendant's Gardner claim are essentially not in dispute. Additionally, and although the Order of Remand stated that this Court could "permit[] the parties to present additional evidence on the Gardner issues," both parties and the Court agreed that no "additional evidence" was needed. Thus, the factual record has not been further developed on remand.

Defendant was arrested on April 10, 1992 in connection with a brutal axe murder that took place in Hockessin.¹ Joseph A. Hurley, Esquire originally entered his appearance on July 6, 1992 and actively represented Defendant in the pretrial discovery process including the proof positive hearing on August 28, 1992.² On October 5, 1992, Mr. Hurley filed a motion to withdraw and a hearing was held on the motion on November 10, 1992.³ At that hearing, conducted by the same judge who would ultimately sentence Defendant to death, Mr. Hurley requested permission for a sidebar conference to articulate additional reasons for his withdrawal "because [he] believe[d] it would be prejudicial to the defendant if [those reasons were] articulated in open court."⁴ At sidebar, in the presence of the judge, the prosecutor, and counsel for co-defendant Anthony Lachette, Mr. Hurley stated the following Your Honor, I've been a defense attorney for seventeen years and I am able to divorce myself emotionally from what I hear in representing a client. There is one exception to that.

During the proof-positive hearing when I heard for the first time the graphic details that were given with regard to the victim in this case grabbing on to the handle of the axe with both hands while the defendant punched her with his free hand and she dropped to the ground, and then while she was writhing or spasming on the ground, then he struck her numerous times, instantly it brought back a circumstance where during the term of my marriage, my wife and I had a continual conversation regarding security at the house and the garage and her being in the garage.

At that moment, I felt an absolute sense of revulsion toward the defendant. I reached the conclusion in my mind he ought to die. I identified I would not sit with him at the table for the remainder of the hearing.

I met with him after that and I was supposed to meet with him that week and I delayed meeting with him because it was an emotional strain for me to have to meet with him.

Finally, weeks after I was supposed to meet with him I met with him. I found him to be distasteful. I had a conversation with him about the state of the case. Without indicating what he said to me, the explanations that were given created emotional responses in me and I don't think that it is fair to him.

I didn't put this in the motion because I thought it was prejudicial to him for an attorney to say in my estimation he's guilty and he ought to die. It's the only time it's happened in my life. But nonetheless, it is what it is.⁵

The trial judge granted the motion to withdraw without comment.⁶ The transcript of the sidebar was ordered sealed.⁷ "None of [Defendant's] subsequent trial or post-trial attorneys were ever informed by the Court or by the State of these sidebar comments."⁸ Defendant (his trial counsel not knowing what had transpired at this sidebar conference) never addressed the sidebar statements made by Mr. Hurley at either penalty hearing or at any other time during the trial.

After hearing the evidence at the first penalty hearing, the jury deliberated for almost twelve hours before returning a verdict of 11-1 recommending a sentence of death. The trial judge imposed a death sentence.⁹

Defendant has filed numerous motions in the Delaware and federal courts seeking to overturn his death sentence.¹⁰ After issuance of this Court's November 25, 2008 opinion denying Defendant's second motion for postconviction relief, Mr. Hurley submitted an affidavit dated March 31, 2009 to Billy H. Nolas, Esquire,¹¹ which states in pertinent part:¹²

AFFIDAVIT OF JOSEPH A. HURLEY

1. I am an attorney of law who practices law in the state of Delaware and has since 1971.

2. I was a privately-retained attorney and accepted the representation of Robert W. Jackson, III in the matter numbered IN92-04-1222 et seq.

3. Specifically, I participated in a Proof Positive Hearing that was held in 1992. At that time, I had been admitted to the Delaware Bar, and practiced criminal law, for more than 20 years. During that time, I had effected representation in criminal cases in at least 5,000 different matters over the course of those approximate 20 years. Never, in that time, or since that time, as a matter of fact, had I withdrawn as an attorney because I had made a judgment of my client, or his actions, which interfered with my ability to offer him strident, if not fierce, legal representation.

4. During the course of the Proof Positive Hearing, a witness was called by the State. That witness was either a close friend or roommate of Robert Jackson. Robert Jackson was accused of a brutal murder involving an innocent female who was either in her thirties or early forties. She had come to her home and entered her garage when, without provocation, someone attacked her with an axe and struck her dead for no apparent reason. The witness testified, upon information and belief, that he had come to the Jackson residence on the day of the homicide and found Jackson shaving. The television was playing in the apartment. As Jackson was shaving, according to the witness, he more or less casually said words to the effect, "Do you remember that I wondered what it was like to kill someone?" When the witness indicated that he did remember, Jackson made some type of reference to what was being shown on the television involving the homicide indicating, to the witness, at least, that Jackson was acknowledging that he was the murderer. The witness, with curiosity, apparently, asked Jackson to further explain, and Jackson explained, in chilling detail, how he had punched the victim with his fist and then brought the axe or hatchet, whatever the instrument may have been, down on her head and watched her fall to the garage floor. The defense table was to the left of the lectern where I was standing. The witness stand would have been at 10:00 a.m., using a clock as a reference point, if 12:00 was considered the direction that I was facing while standing at the lectern. Mr. Jackson would have been situated at 9:00 a.m., making reference to that same clock.

As the witness described the act of murder, the act of brutal murder, I looked at Jackson primarily to insure that he was not grimacing or showing any emotional response to what was being said, and to my shock and disgust, we made eye contact, and he LAUGHED. I instantly concluded it was all a joke to him. At that moment, whatever it is that makes one feel what one feels was triggered, and I felt a surge of repugnancy at what I viewed as heartless, animalistic and inhumane conduct that was intolerable to me.

5. I deliberately withheld indicating that occurrence to the Court because I wanted to protect Mr. Jackson from whatever "nerve" might be struck, consciously or unconsciously, in Judge Bifferato. I tried to balance my duty as a legal advocate with my duty as a human being and believed it was not necessary to inform Judge Bifferato or the State, for that matter, what I had observed.

6. Under oath, I fully believe that I had not witnessed what I witnessed, as described herein, I would have been able to put aside the personal experience that I indicated to the Court and continued my role as an advocate consistent with the Code of Professional Responsibility. It was at that moment that I saw Robert Jackson laughing at the plight of the victim that I instantaneously thought "That could have been Charlotte."¹³

CONCLUSIONS OF LAW

2. The only issue presented by the limited remand is whether Defendant's death sentence violates the holding of Gardner v. Florida, a case decided by the United States Supreme Court.¹⁴ The plurality opinion in Gardner held that a defendant is "denied due process of law when the death sentence was imposed, at least in part, on the basis of information which [that defendant] had no opportunity to deny or explain."¹⁵

In Gardner, the petitioner had been convicted of first-degree murder in connection with bludgeoning his wife to death.¹⁶ At the penalty hearing, the State sought the death penalty based solely on the fact that the petitioner's conduct "was especially heinous, atrocious, or cruel."¹⁷ The petitioner presented mitigating evidence, which "if credited, was sufficient to support a finding of at least one of the statutory mitigating circumstances."¹⁸ After twenty-five minutes of deliberation, the jury recommended a life sentence.¹⁹

However, and in spite of the jury's recommendation, the trial judge ordered a death sentence.²⁰ This ruling was based in part on a presentence investigation report, part of which was confidential and never disclosed to p...