The first Delaware court asked to admit DNA evidence over a defense challenge was the Superior Court in the case of Steven B. Pennell. A stain on a piece of carpet cut from the rear floor of his van had been sent to Cellmark Diagnostics, which reported on December 1, 1988, that it “matched the DNA banding pattern” of the blood of Catherine DiMauro and later put the frequency of that pattern at about one in 180 billion. On November 6, 1989, Judge Gebelein ruled that the match could go to the jury and the number could not: Cellmark’s database held about 250 people, the defense had not been given the calculations behind the figure, and statistics of that size, he wrote, can overwhelm a jury. DiMauro’s nude body had been found at a construction site on June 29, 1988. Shirley Ellis had been found on November 29, 1987, in aqua blue pants, with black duct tape in her hair, her skull struck repeatedly by something like a hammer.
Three of the opinions come from a fight between the court and the News Journal over the jurors. On July 28, 1989, the trial judge ordered that the names of the jurors summoned for the case be kept confidential. Gannett, the paper’s publisher, moved to intervene, and the Supreme Court of Delaware first held, on September 29, 1989, that it had the standing to appeal, then held on November 13, in Justice Moore’s opinion, that the press had no First Amendment right to have jurors’ names announced when the parties knew them and every proceeding was open. Justice Walsh, joined by Chief Justice Christie, dissented. Judge Gebelein’s later opinion quotes the questioning of a juror called into chambers after the paper printed a short profile of him and notes that more than 600 people were summoned for the trial and fewer than 150 appeared.
The jury convicted Pennell of the Ellis and DiMauro murders and could not reach a verdict on the third count, the murder of Michelle Gordon. It imposed two life sentences, and on December 18, 1991, the Supreme Court affirmed; the opinion sets out the decoy operation that police began along the Route 40 corridor in July 1988, the disappearance of Margaret Finner, last seen getting into a blue van, and the night of September 14, when an officer working as a decoy watched a blue van cruise past her seven times. Pennell was then indicted for the murders of Gordon and Kathleen Meyer, who had left her home in Brookmont Farms off Route 40 on foot on September 10, 1988. He pleaded no contest, and on October 31, 1991, he was sentenced to death on both counts. He filed no appeal, asked the court to affirm “so that the proposed sentence can be carried out without delay,” and on February 18, 1992, it did. He was executed on March 14, 1992.
Pennell was convicted by a jury of two murders and sentenced to death on pleas of no contest to two more, and he never admitted any of them; the facts these courts state come from the trial evidence and, for Gordon and Meyer, from a penalty hearing he did not contest. The disappearance of Margaret Finner is described in the 1991 opinion because the trial court let the State put it before the jury, and she appears here as a missing woman, not as a victim of any crime Pennell was charged with. The 1992 opinion quotes the sentencing judge’s view that Ellis and DiMauro were “not the only victims,” which is the judge’s statement, not a finding on any other case.
All six opinions are public records of Delaware courts. The juror questioned in chambers after the News Journal profiled him is given initials here, R.B., because keeping jurors’ names out of print is what the trial court ordered and what the Supreme Court upheld, and a court record should not undo that. The man who told police he saw Finner get into the van appears as E.T., and Michelle Gordon’s mother, who gave victim impact testimony, as M.S. Shirley Ellis, Catherine DiMauro, Michelle Gordon, Kathleen Meyer and Margaret Finner keep their names, as do the officers, the scientists who testified about the DNA and the lawyers on every side.
The Caselaw Access Project text is printed as scanned. Pennell’s middle initial is “P.” in one citation, DiMauro is sometimes “Di-Mauro” where the scanner broke the name, and a footnote on gel electrophoresis is kept exactly as the court wrote it. We closed words the printer had split across lines only where the whole word appears elsewhere in the text, and nothing has been spell-checked. The notes to the 1990 Superior Court opinion quote an exchange with a juror in chambers, and the 1992 opinion carries the sentencing judge’s remarks as the court reporter transcribed them, which is why passages of questions, answers and spoken sentences appear among the legal reasoning. Justice Walsh’s dissent follows the 1989 opinion on the jurors’ names.
GANNETT CO., INC., Intervenor Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee, v. Steven B. PENNELL, Defendant Below, Appellee.
Supreme Court of Delaware.
Submitted: Sept. 26, 1989.
Decided: Sept. 29, 1989.
Richard G. Elliott, Jr., and David L. Finger, of Richards, Layton & Finger, Wilmington, on behalf of intervenor below, appellant.
Jeffrey M. Taschner, Peter N. Letang, and Kathleen Jennings, of the Dept, of Justice, Wilmington, on behalf of plaintiff below, appellee, State of Del.
Eugene J. Maurer, Jr., Wilmington, on behalf of defendant below, appellee, Steven B. Pennell.
Before CHRISTIE, C.J., and HORSEY and HOLLAND, JJ.
[OPINION BY HOLLAND, Justice: type=majority]
HOLLAND, Justice:
Gannett Co., Inc. (“Gannett”) filed a Notice of Appeal from an order entered by the Superior Court in a criminal proceeding brought by the State of Delaware (“State”) against Steven B. Pennell (“Pennell”). This Court directed Gannett to Show Cause why its appeal should not be dismissed. Gannett has filed a response in support of its right to appeal.
This Court has concluded that: (1) Gannett has standing to seek review of the Superior Court’s order; (2) that Gannett has a limited right to intervene in the underlying criminal proceedings, which gave rise to the Superior Court’s order, and (3) that this Court has jurisdiction to hear Gannett’s appeal. Therefore, the Notice to Show Cause will be discharged.
Facts
Pennell has been indicted, inter alia, on three counts of Murder in the First Degree. If Pennell is convicted, the State has indicated that it will seek to have the death penalty imposed. The parties all agree that the Pennell case has been the subject of extensive pretrial publicity. On July 28, 1989, the judge presiding over the criminal proceedings in the Superior Court entered the following order:
In order to protect the integrity of the jury in this case [State v. Pennell ], I am taking the following steps:
1. I direct the Prothonotary to keep confidential the names of all jurors subpoenaed for this jury panel. The jury information sheet will be available only to the attorneys for the parties. The names will not be released to anyone else.
2. On jury selection days those jurors who respond will be assigned a number from 1 to 100. Those numbers will be placed on the juror information sheets delivered to the attorneys and the Court.
3. All jury selection in open Court will be accomplished by numbers and not by name.
On September 7, 1989, Gannett filed a motion to intervene in the criminal proceedings in the Superior Court, alleging that the July 28th order violated its First Amendment Rights. Gannett also filed a motion requesting the Superior Court to rescind that order. The State and Pennell both opposed Gannett’s request.
On September 11, 1989, the Superior Court denied Gannett’s motion to vacate its July 28th order. Since that date, the jury has been impaneled. The criminal trial is now in progress. The names of the jurors have not been disclosed to Gannett or otherwise made public by the Superior Court.
Standing
The initial issue which we must address is Gannett’s standing to seek review of the Superior Court’s bench ruling of September 11, 1989, denying the motion to vacate the order of July 28, 1989. The test of standing is whether: (1) there is a claim of injury in fact; and (2) the interest sought to be protected is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question. Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970). The Data Processing analysis of standing has been applied to media contests of restrictive orders where the media has alleged injury, as Gannett has done in this case. See United States v. Cianfrani, 573 F.2d 835 (3d Cir.1978) (allegation that order closing suppression hearing violated rights to access, receive and gather information about government activities conferred standing); United States v. Gurney, 558 F.2d 1202 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978) (where trial court order arguably affects media’s First Amendment rights and order arguably injures media with respect to news gathering, standing is established).
Gannett is the publisher of a newspaper, which is circulated daily within the State of Delaware. The Superior Court’s order has arguably affected a right within the zone of the media’s interests which are protected by the First Amendment. We find that Gannett has standing to challenge that order.
Free Press/Fair Trial
Pennell argues that the Superior Court’s order is a proper exercise of its duty to protect his Sixth Amendment right to a fair trial. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed_” U.S. Const. amend VI. The right to a jury trial, is applicable to the States through the Due Process Clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968).
In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors .... “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 [75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) ]. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as “indifferent as he stands un-sworne.” Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial.
Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).
Gannett argues that the Superior Court’s order violates rights which are equally fundamental in our jurisprudence and are guaranteed to it by the First Amendment which states that: “Congress shall make no law ... abridging the freedom of speech, or of the press_” U.S. Const. amend. I. Those guarantees have been applied, through the Fourteenth Amendment, to invalidate restraints on freedom of the press imposed by the States. See, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). In particular, the First Amendment has been interpreted to interdict restraints imposed by State courts in criminal proceedings. See, e.g., Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941).
It is inconceivable that the authors of the Bill of Rights were unaware of the potential conflicts between the right to a fair trial by an unbiased jury and the guarantee of freedom of the press. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976). Nevertheless, the authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, i.e., ranking one as superior to the other. Id. at 561, 96 S.Ct. at 2804. The United States Supreme Court has held that:
“if the authors of these guarantees, fully aware of the potential conflicts between them, were unwilling or unable to resolve the issue by assigning to one priority over the other, it is not for [the Courts] to rewrite the Constitution by undertaking what they declined to do.”
Id.
Thus, the United States Supreme Court has also declined to establish a priority between the guarantees of the First Amendment and the Sixth Amendment, which would be applicable in all circumstances. Id. Each case must be examined and decided according to its own facts. Id. at 551, 96 S.Ct. at 2799. Consequently, it has become the trial judge’s primary responsibility to govern each judicial proceeding in a way that ensures the guarantees of both the First and the Sixth Amendments. See, e.g., Annotation, Propriety of Order Forbidding News Media from Publishing Names and Addresses of Jurors in Criminal Cases, 36 A.L.R. 4th 1126 (1985); Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658 (Ky.1983); see also S. Metcalf, Rights and Liabilities of Publishers, Broadcasters and Reporters (1982-1989).
Right to Intervene
In the overwhelming majority of criminal trials, there are few threats to either First Amendment or Sixth Amendment rights. Nebraska Press Assn. v. Stuart, 427 U.S. at 551, 96 S.Ct. at 2799. However, “when the case is a ‘sensational’ one tensions develop between the right of the accused to [a fair] trial by an impartial jury and the rights guaranteed others by the First Amendment.” Id.
Once the tension between the First Amendment and the Sixth Amendment has developed, there is a need to provide a judicial forum for its resolution. The Maryland Court of Appeals, recently addressing this issue, stated:
A procedure under which the press appears by motion in the criminal case when an order restricting pretrial publicity is requested, or has been entered, has the advantage of initially presenting the issues to the trial judge for his consideration in the circumstances of the particular case. The trial judge is in a better position than an appellate court to evaluate matters which may be rapidly unfolding before him and in the community in which the criminal case is pending. The trial judge is also the one who must initially consider how effective alternative methods of protecting the fair trial right of the accused might be under the circumstances. Allowing the press to appear by motion in the criminal case also furnishes the trial court with the benefit of argument by an advocate of First Amendment interests.
The principal objection raised to a non-party motion procedure is that it disrupts the orderly progress of the criminal case. Part of this objection is based on the label, “intervention.” Obviously the press cannot intervene generally. Any such intervention must be confined to the issues relating to the proposed or existing restrictive order. This limited intervention is available only at the instance of one who asserts that his own, at least arguably existing, First Amendment rights are, or are about to be, violated. Within the foregoing framework, the necessary opportunity to assert First Amendment rights is, in our view, a source of less disruption than a procedure which begins with a separate suit or application for mandamus, mandatory injunction or declaratory judgment.
News American Div., Hearst Corp. v. State, 294 Md. 30, 447 A.2d 1264, 1271-72 (1982). We find this reasoning to be persuasive. We agree that intervention by the news media in a criminal proceeding, for the limited purpose of protecting their First Amendment rights, appears to be the most desirable procedure for providing a judicial resolution of those rights, vis-a-vis the competing Sixth Amendment rights of the defendant.
There is no Delaware rule or statute which precludes such intervention. In fact, it has been the practice of the courts to allow it. See Van Arsdall v. State, Del. Supr., 486 A.2d 1 (1984); State v. Shipley, Del.Super., 497 A.2d 1052 (1985). We hold that Gannett has a limited right to intervene in this criminal proceeding, for the purpose of challenging the order which arguably infringes upon its First Amendment rights. See News American Div., Hearst Corp. v. State, 447 A.2d at 1272.
Collateral Order Doctrine
This Court’s jurisdiction to hear appeals is set forth in the Delaware Constitution. This Court does not have jurisdiction to hear an interlocutory appeal in a criminal case. Appeals of right are authorized in criminal cases only from final orders. Del. Const, art. IV, § ll(l)(b); State v. Cooley, Del.Supr., 430 A.2d 789 (1981). Adherence to this rule of finality has been particularly stringent in Delaware in criminal prosecutions because “the delays and disruptions attendant upon intermediate appeal,” which the rule is designed to avoid, “are especially inimical to the effective and fair administration of the criminal law.” Di Bella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962). Accord, Cobbledick v. United States, 309 U.S. 323, 324-26, 60 S.Ct. 540, 541-42, 84 L.Ed. 783 (1940).
Similar limitations are imposed upon the federal circuit courts of appeals by 28 U.S.C. § 1291. Nonetheless, a number of the Federal Courts of Appeals have held that Section 1291 does not bar an immediate appeal from an order which is entered in a criminal proceeding that implicates the news media’s First Amendment Rights. In reaching this conclusion, those courts have taken the position that, with respect to the news media, such orders fall within the so-called “collateral order” exception to the final judgment rule, and are thus “final decisions.” The collateral order exception was first announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Supreme Court defined collateral orders as:
that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. ... We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.
337 U.S. at 546-47, 69 S.Ct. at 1225-26.
We find that, as to Gannett, the order of the Superior Court in the present case “constituted a final decision since it determined a [civil] matter independent of the issues to be resolved in the criminal proceeding itself, bound persons who were non-parties in the underlying criminal proceeding and had a substantial, continuing effect on important rights.” United States v. Schiavo, 504 F.2d 1, 5 (3rd Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974). This Court has jurisdiction to hear an appeal from such a final order by the Superior Court. Del.Const. art. IV, § ll(l)(a).
Motion to Expedite Appeal
Gannett has filed a motion to expedite this appeal. That motion has been held in abeyance by this Court while the Notice to Show Cause was being considered. It is now appropriate to address that motion.
The criminal trial, which is currently in progress, is expected to continue for several weeks. Gannett argues that this appeal should be expedited for two reasons. First, it argues that the Superior Court’s July 28, 1989 order constitutes a daily infringement upon its First Amendment rights. Second, Gannett’s claims may become moot if the criminal trial is concluded before this appeal.
This Court has determined that the First Amendment issue raised by Gannett should be addressed and answered, if possible, before the criminal trial has been completed. Therefore, Gannett’s motion to expedite this appeal will be granted.
Amicus Curiae
In this case, the State and Pennell oppose the position that has been taken by Gannett and have indicated that if this appeal proceeds, they will both argue that the Superior Court’s order should be affirmed. In the usual appeal, the merits of the legal issues presented are adequately framed by the competing interests of the parties. However, this is not a usual appeal.
This appeal has been expedited. Therefore, it will be proceeding simultaneously with the criminal trial that is now in progress. The attorneys for the State and Pennell will be required to devote their full time to the merits of the criminal trial on a daily basis. That trial will undoubtedly also require preparation at night and on weekends. Those attorneys now have the additional professional responsibilities which are involved with this appeal. Therefore, the Court has concluded that the interests of justice would be served if an attorney were appointed to file a brief, as an amicus curiae, in addition to the briefs filed by the State and Pennell. Supr.Ct.R. 28.
Conclusion
The Notice to Show Cause that was issued to Gannett is DISMISSED. Gannett’s motion to expedite this appeal is GRANTED.
State of Delaware v. Steven P. Pennell, Cr.A. Nos. N88-12-0051, N88-12-0052 and N88-12-0053.
That right is also guaranteed by the Delaware Constitution. Del. Const, art I, § 4.
The parties agree that the Pennell case has become a sensation.
See, e.g., United States v. Gerena, 869 F.2d 82, 83-84 (2nd Cir.1989); United States v. Raffoul, 826 F.2d 218, 221-22 (3rd Cir.1987); Applications of National Broadcasting Co., 828 F.2d 340, 343 (6th Cir.1987); United States v. Smith, 787 F.2d 111, 113 (3rd Cir.1986); United States v. Cianfrani, 573 F.2d at 844-45. See also United States v. Corbitt, 879 F.2d 224, 227 n. 1 (7th Cir.1989); Matter of New York Times Co., 828 F.2d 110, 113 (2nd Cir.1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988); Application of The Herald Co., 734 F.2d 93, 96 (2nd Cir.1984).
A scheduling conference will be arranged with counsel.
STATE of Delaware v. Steven B. PENNELL, Defendant.
Superior Court of Delaware, New Castle County.
Submitted: Sept. 20, 1989.
Decided: Sept. 25, 1989.
Reargued After Further Hearing: Nov. 6, 1989.
Decided: Nov. 6, 1989.
Peter N. Letang, and Kathleen M. Jennings, Deputy Attys. Gen., Dept, of Justice, Wilmington, for State of Del.
Eugene J. Maurer, Jr., and Elizabeth Barnes, pro hac vice, Wilmington, for defendant.
[OPINION BY GEBELEIN, Judge. type=majority]
OPINION
GEBELEIN, Judge.
This case arises from a series of murders of young females during 1987-88. In particular, the defendant is charged with 3 counts of First Degree Murder relating to the deaths of Catherine DiMauro, Shirley Ellis, and Michelle Gordon. Due to the “serial” nature of these murders this case achieved a high degree of publicity. Likewise, law enforcement agencies established a joint task force to investigate these crimes as well as other deaths and disappearances which occurred in the same area during the same general time frame.
During the course of these investigations the defendant was identified as a suspect. After extensive surveillance, the defendant was arrested and charged with three counts of First Degree Murder. Pursuant to a search warrant defendant’s van was searched and a piece of carpet and carpet backing was seized from the rear floor area of the van. On those articles a stain was identified as that of blood. These two articles were submitted to Cellmark Diagnostics, a division of ICI Americas Inc., hereinafter “Cellmark”, for comparison to known blood samples of the decedents through a DNA analysis.
On December 1, 1988, Cellmark reported that the stains “matched the DNA banding pattern” of the known blood of Catherine DiMauro. Subsequently, on March 27, 1989, Cellmark opined that the “frequency” of the DNA banding patterns of Catherine DiMauro is approximately “one in 180 billion” in the Caucasian population. Defendant has filed a motion in limine to exclude this evidence from the trial in this case.
No court in this jurisdiction has determined the admissibility of this type of DNA analysis in a criminal case where such evidence has been challenged by the defense. The Court has conducted extensive pretrial hearings on this matter and has further had the record supplemented by extensive videotape depositions of defense experts and prosecution rebuttal expert testimony.
The parties have briefed the issues involved with regard to the admissibility of this type of evidence. This is the Court’s opinion on defendant’s motion in limine.
HEARINGS
This Court heard testimony on behalf of the State from: Dr. David E. Housman, Professor at Massachusetts Institute of Technology, and staff member at the Center for Cancer Research, MIT, accepted as an expert in molecular biology, and molecular genetics; Dr. Robin Cotton, manager of research and development, Cellmark, accepted as an expert in molecular biology and biochemistry; Dr. Lisa Forman, Cellmark, accepted as an expert in population genetics; Karen Rubenstein, staff molecular biologist, Cellmark, (individual who performed the analysis in this case); Dr. David Goldman, Chief, Section on Genetic Studies at NIAAA, accepted as an expert in human genetics; and Dr. Edward Ratledge, Director, Center for Demography, University of Delaware, accepted as an expert in demographics. Testifying by deposition for the defense were: Dr. Laurence Mueller, Associate Professor, University of California, Irvine, accepted as an expert in ecology and population genetics; Dr. Simon Ford, Associate Professor, University of California, Irvine, accepted as an expert in genetics, biochemistry and molecular genetics; Dr. William Thompson, Associate Professor, University of California, Irvine, accepted as an expert in psychology, social science surveys, and social ecology.
All of those who testified have educational qualifications and employment experiences that qualify them as experts in their chosen aras of study. D.R.E. Rule 702.
Upon conclusion of the live testimony in this case and after reviewing the video taped deposition testimony and exhibits, the Court must rule on the admissibility of the results of this DNA analysis.
THE LEGAL STANDARD FOR ADMISSIBILITY
New or novel scientific evidence in Delaware must be determined to be admissible under the Delaware Uniform Rules of Evidence. The Supreme Court of Delaware has determined that the so-called “Frye” test, see Frye v. United States, D.C.Cir., 293 F. 1013 (1923), is no longer the sole test for admissibility of scientific evidence in Delaware. Santiago v. State, Del.Supr., 510 A.2d 488, 489 (1986); Fensterer v. State, Del.Supr., 493 A.2d 959, 962 n. 3 (1985) rev’d other grounds, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985); Whalen v. State, Del.Supr., 434 A.2d 1346, 1354 (1981). In particular, the Court has held that a duly qualified expert may offer his opinion based upon tests or processes if those tests are those reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Santiago, supra at 489, D.R.E., Rule 703.
Basically then, this Court's analysis must determine first, that the expert being offered is qualified; second, that the evidence offered is otherwise admissible, relevant and reliable; third, that the bases for the opinion are those reasonably relied upon by experts in the field, fourth, that the specialized knowledge being offered will assist the trier-of-fact in understanding the evidence or to determine a fact in issue; and finally, whether such evidence would create unfair prejudice, confusion of the issues, or misleading of the jury. D.R.E., Rule 403.
Defendant argues that in this particular area of scientific evidence, the Frye test should be used, rather than the more relaxed standard under the Rules of Evidence. This Court cannot agree. The Supreme Court has determined that Frye alone does not govern the introduction of scientific evidence. Santiago, supra. It should be noted however, that the basic principles underlying Frye are protected by the current standard that opinions may be based on information, tests or processes which are reasonably relied upon by experts in the field. The Frye court had noted:
... while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, supra at 1014.
The basic difference, therefore, is that the State must establish only that the tests or processes used are “reasonably relied upon by experts in the field” rather than “generally accepted by experts in the field” as the third step of the Court’s analysis.
In this case, it is clear, and the Court finds, that the experts offered by the State are qualified in the area of DNA analysis. Likewise, it is clear to the Court that the offered testimony would assist the trier-of-fact in determining a fact in issue, i.e. the presence of Catherine DiMauro’s blood in the defendant’s van. It is clear also that an opinion that the blood in the van matched that of one of the victims, if based upon reasonably accepted facts, tests or processes, would be relevant and admissible in this case. Thus, the focus of this Court’s inquiry must be:
1.) Are the tests, processes, etc. followed by Cellmark in this case, those reasonably relied upon by experts in the fields of molecular biology and human genetics?
2.) Is the evidence offered by the State reliable?
3.) Will the evidence offered by the State create unfair prejudice, confusion of the issues, or mislead the trier-of-fact?
DNA ANALYSIS
Before the Court can begin the analysis of the legal principles involved, it is necessary to set out a brief introduction to the basic theory underlying such analysis.
DNA, deoxyribonucleic acid, is the fundamental or basic material which determines the genetic properties of all living things. Different characteristics of different life forms are caused by differences in the molecular composition of their DNA.
Every human nucleated cell contains DNA. The DNA in each cell in a particular human being is identical. Thus, DNA from skin, blood, semen or other parts of the same human body will be identical. In an exceedingly appropriate visual analogy the New York Supreme Court described the DNA molecule as follows:
DNA is composed of a long double helix, which looks like a spiral staircase. The backbone of this molecule (i.e., the handrails and balustrade of the staircase) consists of repeated sequences of phosphate and deoxyribose sugar. Attached to the sugar links in the backbone are four types of organic bases: Adenine (A), Guanine (G), Cytosine (C) and Thymine (T). The steps of the staircase are formed by pairs of these bases, (hereinafter, “base pairs”). People v. Castro, N.Y.Supr., [144 Misc.2d 956] 545 N.Y.S.2d 985 (opinion of J.S.C. Sheindlin, August 14, 1989. p. 9).
As noted by the Castro Court, there are approximately three billion of these base pairs in each DNA molecule. The order or sequence of these base pairs is what determines genetic traits of an individual life form. Each human being with the except tion of identical twins will have some difference in the sequence of these base pairs. Identical twins, because they originate from a single sperm cell’s union with a single egg, will have an identical DNA molecule.
Within the human genetic molecule there are several million locations or sites where the base pairs may differ, i.e., be arranged in a different sequence. One of these areas where the base pairs are arranged differently is called a polymorphic sequence or segment. These polymorphic segments are the parts of the DNA chain that are used for analysis or identification.
The human DNA molecule will be divided into 46 sections called chromosomes. Each human being obtains 22 of these chromosomes from each parent and the remaining two chromosomes are sex-typing chromosomes. The 44 chromosomes received by a human from his/her parents are arranged in pairs. The 22 pairs contain one chromosome from each parent. Each of these chromosomes has thousands of genes and each gene is located at a particular site on the chromosome. Each gene or segment of the DNA molecule that produces a trait is called an allele. Each of these alleles may be composed of up to 10,000 or more base pairs. (1,000 base pairs being a kilobase.) It is these alleles that are used to determine the unique identity of a DNA molecule.
In DNA identification analysis a process is followed where the DNA chain is broken into small segments by use of restriction enzymes. The enzymes basically eat through the DNA molecule at certain identifiable locations or sites. Created by this process are restricted fragment length polymorphisms or “RFLPs”.
The fragments created by use of restriction enzymes are then segregated by length by a process of agarose gel electrophoresis. Basically, the fragments are placed in a gel which is electrically polarized. The fragments will migrate through the gel attracted by the positive electricity at one end. The fragments will migrate at a different speed depending upon the length of the fragment because of the difficulty of longer fragments proceeding through the maze of the gel. After a certain period of time, the electrical polarization is stopped and the DNA is fixed.
At this point the DNA in the gel is incubated, sodium hydroxide is added to the gel and the DNA strands become “unzipped.” Actually, the base pairs are separated all along the segment of DNA trapped in the gel. These segments are then transferred to a nylon membrane by a blotting process. Paper towels are stacked on top of the nylon membrane which in turn is on top of the gel. The moisture is wicked up into the towels and the nylon membrane catches the unzipped DNA segments. A probe, i.e., an unzipped DNA segment of a known length and sequence that has been irradiated, is added to the nylon membrane by soaking it in a solution containing the probes. The probes will bond with a like segment of DNA. The membrane then has x-ray film placed on it and a photograph is made of the irradiated DNA segments, i.e. an autorad. Bands will show up on the autorad indicating which length DNA segments have been identified.
To this stage in the process the principles of DNA identification, i.e., the tests, procedures and underlying theory are all generally accepted in genetic research. No one contests that every individual, except identical twins, has a different DNA chain. Thus, if the entire chain were analyzed, there is no doubt a positive identification could be made. That is to say a DNA fingerprint would exist. Likewise, there is no serious scientific dispute over the principle that segments can be created by use of restriction enzymes, and that the length of those fragments can be measured with some degree of accuracy. The bonding of an irradiated segment with another segment is a routine practice in genetic research. Finally, the production of an x-ray image from the radiated segments, an autorad, is an accepted practice in the scientific community.
The questions arise, however, as to the interpretation of the autorads, the standards used to determine a match, the number of probes necessary to obtain a true identification, the statistical probabilities of a population sample and, of course, the actual reliability of the procedures used in a particular testing laboratory.
THE TEST RESULTS
Cellmark purports to match DNA samples within a statistical probability by measuring the length of particular alleles or segments in the DNA samples compared. If both samples have the same photographic imprint as to the eight or less alleles measured by the probes, then a match is declared. Cellmark then looks at its data base for DNA from the same racial group to determine the frequencies at which those eight or less alleles occur in the population generally. If, for example, the allele measured was the genetic determinant for eye color and the allele was for blue eyes, its probability of occurrence in the Caucasian data base would be much higher than an allele for violet or green eyes. That particular allele would not be particularly helpful in identification as its occurrence would be fairly common.
For a test to be reliable, two basic conditions must be met: 1.) the alleles that are tested for must not be the result of linkage disequilibrium; and 2.) the data base population must be in or approach Hardy-Weinberg equilibrium.
The first condition is met by seeking alleles from different chromosomes. This increases the probability that the segments measured occurred randomly, rather than being the product of one parent’s genetic contribution.
Hardy-Weinberg equilibrium assumes that allele frequencies in the population will remain constant from generation to generation so long as there is random mating in the population. Of course, small deviations from Hardy-Weinberg equilibrium exist in human communities for a number of reasons, including the fact that human mating is not, in its truest sense, random.
If the population is in Hardy-Weinberg equilibrium, a probability that a DNA with eight identified rare alleles will occur is determined by multiplication of the eight individual probabilities, e.g., 1/ax 1/b X 1/c X 1/d X 1/e X 1/f X 1/g X 1/h. It is easy to see that if the probability of each of these alleles occuring is but 1 in 10, the probability of all eight appearing in the same individual is 1 in 108 or 1 in a hundred million. If but two of the alleles occur only in 1 of a hundred individuals, the resulting probability of all eight alleles matching becomes one in ten billion. It is easy to see just how powerful this identification tool is and what a tremendous impact it could have on a jury.
In this case the defense has offered expert testimony to challenge the reliability of Cellmark’s procedures and the underlying probabilities or frequencies in the population of the alleles measured on account of an alleged Hardy-Weinberg disequilibrium in the Caucasian data base.
The challenge mounted as to Cellmark’s data base is convincing on the surface. In particular, using Cellmark’s probes there is an unusually high incidence of homozygosity. A homozygote is an individual who has inherited the same allele (or same length allele) from both parents. Thus, when a probe is used to measure the allele present at a specific locus, only one band will occur on the autorad indicating the presence of only one length allele at that geno locus for that individual. The percentage of expected homozygotes in the population for any loci tested may be calculated. The frequency of homozygotes found in Cellmark’s data base at several loci significantly exceeds the expected frequencies. If the incidence of homozygosity far exceeds the expected frequency of that condition, then clearly the data base population is not in Hardy-Weinberg equilibrium. If that is the case, then Cellmark’s use of probability statistics is not based upon reliable scientific assumptions.
The testimony of Drs. Forman and Goldman, however, explain to a great degree the reason for the original high occurrence of homozygosity in Cellmark’s data base. In particular, the use of a 20 cm gel has apparently permitted the shortest length alleles to migrate off the gel prior to the electroporesis being stopped. Thus, where the one allele was extremely small, it would not appear on the autorad and the individual would appear to be a homozygote. Cellmark is in the process of retesting its data base with a 15 cm gel test and preliminary results testified to, indicated a much lower level of homozygosity than previously indicated. These results do not prove absolute Hardy-Weinberg equilibrium, but approach that condition more closely.
Defendant also challenges the binning processes used by Cellmark in determining the allele frequency in the general population (data base). In particular, Cellmark uses a “resolution unit” to determine a match between known and unknown DNA samples. When the test is done on one gel as in this case, if the bands appear to be within one resolution unit a match is declared. If the tests are run on two gels, then Cellmark uses two resolution units to declare a match. In determining the frequency of the allele in the data base population, Cellmark uses the same resolution unit test as used on the forensic sample, 1.e., if the tested DNA was on one gel, they apply one resolution unit to the data base; if the test was on two gels, they apply two resolution units to the data base. Dr. Forman testified that this seemed logically consistent. Defense argues, and the Court agrees, that this is not a proper measurement of the frequency of alleles in the data base population when applied to a case involving a single gel test. Simply put, the data base was generated using different gels. For Cellmark to positively claim a match on a forensic test performed on two gels and yet to exclude that occurrence in the data base frequency for the population produces an unjustifiably low rate of occurrence in the community. The bin or frequency at which an allele occurs in the population must be calculated using the widest range Cellmark would use to declare a match on any individual test, that is, by two resolution units. This would, of course, change the frequencies calculated in this case.
Defendant further contends that there are additional aspects of Cellmark’s procedures that lead to unreliable results. In particular, the defense points to a false positive result obtained by Cellmark on a blind study performed for the California Crime Laboratory. While such a result is clearly impossible if the principles underlying DNA fingerprinting are correct (absent human error), this false positive does not invalidate the process. In the blind study performed by Cellmark, apparently blood samples were mixed causing the false positive. This error is certainly good cross-examination material, but it does not invalidate the generally accepted principles of DNA individuality and matching procedures.
Likewise, challenges as to the use of particular concentrations of restriction enzymes or kinds of enzymes and the failure to heat markers while raising questions of accuracy of the exact tests performed, do not invalidate the procedures used by Cellmark. These arguments are best addressed to the trier-of-fact and go to the weight of Cellmark’s opinion.
FINDINGS
In reviewing the extensive evidence offered, the Court makes the following findings:
1. DNA identification procedures are based upon generally accepted scientific principles in that restriction fragment length polymorphism technology is accepted in the field of human genetic research.
2. The use of four probes of the type used by Cellmark can give a basis for an opinion of a positive identification of DNA or matching of DNA to a known sample.
3. The calculation of frequencies of genotypes (alleles of a particular length) through use of a proper data base can be useful in expressing an opinion as to a positive match of DNA samples.
4. The probability of the occurrence of DNA with certain alleles may be calculated by the multiplication method from a data base of the size of Cellmark’s if:
a. The data base can be demonstrated to be in Hardy-Weinberg equilibrium or substantially in Hardy-Weinberg equilibrium; or
b. If appropriate corrections are made to the probabilities to reflect the effect of such Hardy-Weinberg disequilibrium.
5. The danger of misleading a jury, confusing the issues, or of creating undue prejudice to the defendant is extremely great when probabilities in the nature of 1 in 100 billion are expressed. Thus, such probabilities should only be expressed if they are soundly grounded in statistics generated from assumptions that are not subject to serious dispute.
6. Cellmark’s binning procedure for determining the frequency of a certain size allele in the data base (and hence in the population at large) is too restrictive in the light of its policy of declaring a positive match for a forensic sample obtained by use of a two-gel comparison that would lie outside of the bin defined for data base frequency for one-gel comparisons. The result of this procedure is a lower frequency for a given allele in the data base than would be proper using generally accepted scientific principles.
7. Clearly, standards for DNA identification procedures should be developed. The suggestions of Dr. Eric Lander in a paper presented to the Banbury Conference entitled, “Population Genetic Considerations in the Forensic Use of DNA Fingerprinting” deserve serious consideration. In particular, the Court notes that the use of more than four probes could well lead to general acceptance of “DNA fingerprinting” by the scientific community and the Courts.
CONCLUSION
In conclusion, the Court finds that Cellmark’s procedures in matching DNA samples are based upon tests and procedures generally relied upon by experts in the field. Their opinion, therefore, that the samples analyzed matched the blood sample from Catherine DiMauro is admissible at this trial.
The statistical probabilities, or frequencies of DNA with like characteristics being found in the population as developed by Cellmark, have not been demonstrated to be reliable based upon the evidence adduced to this point to the extent that such large numbers should be expressed to the jury with their potential for an extremely prejudicial effect. The danger of prejudice at this time outweighs the probative value of approximate figures based upon a data base not yet established to be in substantial conformity with Hardy-Weinberg equilibrium or corrected in a scientifically accepted way; and not yet corrected to reflect the use of a two-resolution unit standard for determining data base frequencies. Should the ongoing research at Cellmark resolve these deficiencies, the Court would reconsider the issue of testimony as to probability statistics. This would only be done after a further voir dire on this issue.
OPINION AFTER FURTHER HEARING AND ARGUMENT
During the course of the trial of this First Degree Murder case, the State has moved to reopen the evidentiary hearing on defendant’s motion in limine. The Court granted the State’s motion to reopen the hearing on this issue recognizing the rapidly changing state of knowledge and experience in DNA identification technology.
Dr. Lisa Forman, testified upon voir dire, as to the current testing protocols and procedures at Cellmark, as well as to the further statistical analysis of its data base. Significantly, Cellmark has basically created a new data base upon which it relies to generate population probabilities. The original data base of over 600 individuals accumulated from blood banks, paternity cases and forensic cases has been discarded in favor of a smaller data base, approximately 250 individuals, selected primarily from blood bank samples.
This new data base was being completed during the proceedings in this case, and initial statistics from this base were introduced in the early September testimony before the Court. Those statistics showed a deviation from Hardy-Weinberg expectations for apparent homozygotes in the population sample with regard to several of the probes used. It was this deviation, that in part led to the Court’s exclusion of probability statistics. To use probability multiplication to obtain a purported frequency in the population for a number of alleles assumes randomness of allele occurrence or in other words that the population or data base be in substantial conformity with Hardy-Weinberg expectations.
Dr. Forman testified that Cellmark had run 15 cm gel tests upon the new smaller data base, but had not thoroughly analyzed them prior to the initial testimony in this case. The 15 cm gel is one produced by conducting electrophoresis for a shorter period of time, thereby catching .more of the shorter length alleles on or in the gel when the electrical charge was stopped. The 15 cm gel, therefore, according to Cellmark’s theory would when read in conjunction with the 20 cm gel show a smaller percentage of “apparent one banded individuals” or homozygotes. The test results appear to bear out this theory with respect to three probes; the number of “apparent” homozygotes as a percentage of the population dropped substantially when both gels were analyzed.
Dr. Forman further testified that three of the four probes when run on both 20 cm and 15 cm gels produced a percentage of homozygotes in the population that would approach or be in substantial conformity with Hardy-Weinberg expectations as calculated by her. When cross-examined upon the statistical basis for her expectation calculations, Dr. Forman produced no notes or calculations. She explained that these calculations were done on her computer and were discarded due to the lack of a functioning printer. Dr. Forman also testified that the statistical compilation of the population data base allele frequency calculations for two probes was not yet available in printed or written form.
Finally, Dr. Forman testified that Cellmark’s protocol for data base frequencies had been amended to provide for a wider bin for occurrence of specific alleles in the population. Basically, Cellmark has expanded the bin size to two resolution units for population frequencies where a forensic match has been declared on a one-gel test; and to three resolution units where the forensic match came from a two-gel test.
At the conclusion of this testimony, the defense objected to any modification of the Court’s previous decision, but presented no evidence other than through cross-examination. The defendant further objected that he was being denied due process of law in that he had no access to calculations as to how Hardy-Weinberg expectations were determined; and that the defendant had not been supplied with the calculations of allele frequencies as to two of the four probes used by Cellmark with respect to 15 cm gel tests and the frequency of perceived homozygosity.
The Court ruled tentatively that statistical evidence could be admitted upon the record as it now existed based upon the assumption that the new data base approached or was in substantial conformity with Hardy-Weinberg expectations. Further, the Court noted that Cellmark’s new protocol used in calculating the frequencies in this case specifically addressed the anomaly observed in its initial opinion, see p. 518 supra.
The Court’s ruling, however, was made contingent on the prosecution supplying defendant with the calculations used to determine Hardy-Weinberg expectations; and the calculations of frequencies of allele occurrence as to the two additional probes. Further, the Court noted that before these statistics could be admitted, defendant would have to be provided with the opportunity to challenge these calculations on voir dire; and that the State’s expert witnesses would be available for recall on this issue.
On November 3, 1989 the Minnesota Supreme Court issued an Opinion in Hennepin County, State of Minnesota v. Thomas R. Schwartz, Minn., 447 N.W.2d 422 (1989) (C.J. Popovich). The Court provided counsel with a copy of the opinion and invited their comments on the issues raised by that opinion in which the Minnesota Court found that Cellmark’s “test results lack foundational adequacy and, without more, are thus inadmissible.” Schwartz, 447 N.W.2d at 428. Defendant argues that Schwartz is directly on point and should be persuasive to this Court; and that further, a mistrial is required to cure any prejudice caused by the introduction of DNA test results in this case. The prosecution disagrees.
The Court has analyzed Schwartz as it applies to this case. The Minnesota Court is bound by Minnesota Rules of Evidence and case law to apply the so-called “Frye" test to scientific evidence. Frye v. United States, supra. As noted, supra at p. 515, the Frye test is not controlling Delaware law. In Schwartz, the Court notes that Cellmark’s statistical analysis are not done in a manner that meets certain guidelines recently established by certain elements of the scientific community, in particular the F.B.I., the California Association of Crime Lab Directors, and the Technical Working Group on DNA Analysis Methods (TWGDAM). There has been little testimony about any such standards during the extensive pretrial and trial hearings on DNA in this case. While these standards may be extremely helpful in determining a level of acceptability of a procedure in the scientific community under the Frye test, they are much less helpful in a case such as this where it is conceded by all parties that the “technology” used to perform the comparison of blood samples is generally accepted, relied upon and used by the scientific community. In particular, as noted by the Schwartz Court:
It is undisputed that RFLP analysis is routinely performed and generally accepted for research and diagnostic purposes within many scientific disciplines. Schwartz, supra, 447 N.W.2d at 425.
Thus, this Court concludes that Cellmark is performing a procedure that is generally accepted and used within the scientific community. The individuals who have testified from Cellmark, clearly qualify as experts in the areas of microbiology and/or population genetics. They are, therefore, competent to offer their opinion as to the results of the DNA test.
The Court, however, maintains its concern that the population frequency of the occurrence of any specific allele in the data base must be shown to rest upon sound scientific analysis or principles. While the testimony from Cellmark’s experts resolved one of the specific concerns raised by the Court, i.e., the binning procedure, it has also raised other concerns.
In particular, the Court notes from the testimony of Dr. Cotton, it was developed that any two scientists may well measure (estimate from measurements on the autorad) the exact length of an allele to be different from that estimate of another scientist. This difference would not necessarily impact upon the declaration of a match in a forensic case since purportedly the scientist would be consistent in the manner in which he or she takes measurements. The Court notes that at this time Cellmark is using bioimaging technology that uses computer scanning to measure the autorad bands for purposes of inputing the allele lengths into the population data base. This eliminates to a greater degree the possibility of human difference in the data entry. It does not remove that problem, however, as it is conceded by Cellmark that the bioimager cannot read all autorads, and it is incapable of discerning an imperfection on the autorad from a band. When this occurs the placement of the location of the band and, hence, the estimate of allele lengths is accomplished by concensus of three scientists, who together read the autorad and agree upon an estimated length.
Since Cellmark’s data base is small, approximately 250 people, the misidentification of a small number of allele lengths could substantially alter the frequency calculated from that data base.
As this Court has previously noted, the impact of statistical testimony upon a jury can be overwhelming. This is especially true when the statistics involved speak in numbers such as one in one hundred million and above. The Court does not adopt the position of the Schwartz Court that this type of population frequency statistical analysis would never be proper. See, State v. Joon Kyu Kim, Minn., 398 N.W.2d 544 (1987) and Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329 (1971); but see, Finkelstein & Fairley, A Comment on “Trial by Mathematics”, 84 Harv.L.Rev. 1801. In this case, however, the State has failed to demonstrate a degree of reliability necessary to admit such statistical probabilities. See, Evidence: Admission of Mathematical Probability Statistics Held Erroneous for Want of Demonstration of Validity, 1967 Duke L.Jour. 665. The potential prejudicial effects of frequency probabilities clearly outweighs their probative value unless or until there is a measure of scientific certainty to those probabilities. In an appropriate case this type of statistical evidence may be acceptable; but, upon the record developed in this case, it has not been demonstrated to rest on a sound scientific basis.
Finally, the Court notes that to this point defendant has not been supplied with the calculations performed to estimate Hardy-Weinberg expectations for the probes used. Likewise, the statistical input relating to the frequencies of alleles as to two probes is likewise unavailable. On this basis alone the Court would exclude this testimony. In a case such as this where an independent test upon the DNA samples cannot be conducted due to destruction of the samples, due process requires that the defendant have access to these types of information to prepare and conduct his cross-examination.
The defendant seeks a mistrial based upon the fact that a prosecution witness blurted out the probabilities arrived at in this case. The Court finds that the introduction of that evidence was not the result of a tactical decision by the State; but rather came as the witness attempted to explain his answer. The actual testimony did not address in any way what the statistics meant; nor did it suggest that any one number had been arrived at in this case. In fact, the testimony was purely conditional as to what the statistical frequencies could or would be. The statistics, however, should be stricken from evidence and not referred to by counsel in argument. The Court will give an instruction to the jury on this matter clarifying that there is no statistical probability evidence in this case.
For the foregoing reasons, the State’s motion to modify the Court’s ruling is DENIED. The defendant’s motion for a mistrial is DENIED.
IT IS SO ORDERED.
Actually, the difference in the test being run is that for a 15 cm gel test the electrophoresis is run for a shorter length of time, capturing more alleles on the gel, but allowing for the longer alleles to bunch together.
The tests in this case were single gel matches.
The stated reasons for this modification of data base included the elimination of mother-father combinations, the procurement of more information on the persons included, etc.
The State just prior to argument on this issue indicated that it now did not intend to use the statistical frequency evidence. That statement does not make the issue moot as trial tactics change; and the Court's oral modification of its decision remained the law of this case until it is withdrawn by this decision.
GANNETT CO., INC., Intervenor Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee, v. Steven B. PENNELL, Defendant Below, Appellee.
Supreme Court of Delaware.
Submitted: Oct. 31, 1989.
Decided: Nov. 13, 1989.
Written Opinion: Feb. 22, 1990.
Richard G. Elliott, Jr. (argued), David L. Finger, Richards, Layton & Finger, Wilmington, for appellant Gannett Co., Inc.
Gary W. Aber, Heiman, Aber & Goldlust, Wilmington, Jane E. Kirtley, Robert S. Becker, the Reporters Committee for Freedom of the Press, Washington, D.C., Richard M. Schmidt, Jr., Cohn & Marks, Washington, D.C., James Grossberg, Ross, Dixon & Masbaek, Washington, D.C., Robert J. Brinkmann, National Newspaper Ass’n, Washington, D.C., Bruce Sanford, Douglas E. Lee, Baker & Hostetler, Washington, D.C., for amici curiae the Reporters Committee for Freedom of the Press, American Soc. of Newspaper Editors, Maryland-Delaware-District of Columbia Press Ass’n, and National Newspaper Ass’n & Soc. of Professional Journalists in support of appellant Gannett Co., Inc.
Jeffrey M. Taschner, Dept, of Justice, Wilmington, for appellee the State of Del.
Eugene J. Maurer, Jr., Wilmington, for appellee Steven B. Pennell.
Steven J. Rothschild (argued), Andrew J. Turezyn, Paul L. Regan, Matthew F. Boyer, Skadden, Arps, Slate, Meagher & Flom, Wilmington, for amicus curiae in support of appellees the State of Del. and Steven B. Pennell.
Before CHRISTIE, C.J., MOORE, WALSH and HOLLAND, JJ., and HARTNETT, Vice Chancellor (sitting by designation pursuant to Del. Const, art. IV, § 12), constituting the Court en banc.
[OPINION BY MOORE, Justice, type=majority]
MOORE, Justice,
for the majority.
We accepted this expedited interlocutory appeal to consider an issue of first impression — whether the news media have a qualified first amendment right to require announcement of jurors’ names during a highly publicized first degree murder trial, even though the parties have full access to such information and the proceedings are otherwise open to the public. The Gannett Company (“Gannett”), publisher of the News-Journal, a daily statewide newspaper in Delaware, appeals from a pretrial order (the “Order”) of the Superior Court directing the Prothonotary to keep confidential the names of prospective jurors in this case. The jury was not sequestered, and the Order was entered under the authority of a Delaware statute derived from the federal and uniform laws of the United States. The trial court properly concluded that the Order was necessary in light of the intense media coverage of this case, and the unprecedented coverage of individual jurors by Gannett in another recent and notorious murder trial in Delaware.
On appeal, Gannett contends that the Order unconstitutionally restricts its first amendment right of access to judicial proceedings, and violates its constitutional right to a hearing under the fourteenth amendment. We disagree. Applying the analogous principles of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”), we find that no qualified right of access exists here. See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589, 100 S.Ct. 2814, 2834, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring). Press-Enterprise II suggests that a qualified first amendment right of access attaches only if “the particular proceeding passes ... [threshold] tests of experience and logic.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740. Gannett’s claims fail both these tests. Accordingly, we affirm.
I.
Steven B. Pennell was charged with three counts of first degree murder in November, 1988. The murders were alleged to be serial killings, and the State sought the death penalty. Autopsies of the three female victims revealed that they had been bound and tortured, their bodies mutilated. Because of the lurid nature of the crimes, the case received widespread publicity in the local and regional media throughout the investigation, pretrial and trial proceedings.
During the spring and summer of 1989, the Superior Court held several pretrial hearings, all of which were open to the public. The trial judge was concerned about the extensive publicity the case was receiving. He began to consider ways to insure that prospective jurors were unbiased and that the defendant would receive a fair trial. On July 28, 1989, before the names of prospective jurors had been publicly announced, and before jury selection had begun, the Order was entered, which stated:
In order to protect the integrity of the jury in this case, I am taking the following steps:
1. I direct the Prothonotary to keep confidential the names of all jurors subpoenaed for this jury panel. The jury information sheet will be available only to the attorneys for the parties. The names will not be released to anyone else.
2. On jury selection days those jurors who respond will be assigned a number from 1 to 100. Those numbers will be placed on the juror information sheets delivered to the attorneys and the Court.
3. All jury selection in open Court will be accomplished by numbers and not by names.
State v. Pennell, Del.Super., Cr.A. Nos. IN88-12-0051 to 0053, Gebelein, J. (July 28, 1989) (ORDER).
The Order was issued because of the overwhelming pretrial publicity in this case, and the similarly extraordinary and unprecedented trial publicity Gannett gave unsequestered jurors in the nearly contemporaneous murder trial of Joyce Lynch. See State v. Joyce L. Lynch, Del.Super., Cr.A. Nos. IK88-01-0040 to 0047, Ridgely, J., 1989 WL 64149 (June 2, 1989) (ORDER). Lynch and her husband, Richard, were accused of stealing a nine-day old child on Christmas Eve, and killing his parents during the abduction. Joyce Lynch was tried first. During jury selection, the names of prospective jurors were announced in court before individual voir dire. At that time the Lynch court had no indication that Gannett might publish names and profiles of individual jurors during the trial. Later, the State and counsel for Lynch informed the court that a Gannett reporter was seeking specific information about members of the unsequestered jury. The State and defense counsel feared that publication of jurors’ names and addresses would encourage the public to make unsolicited phone calls to individual jurors about the case and might threaten juror impartiality.
After an in camera hearing, the Lynch court ordered the parties and the press to keep jurors’ names confidential. Gannett immediately moved to intervene and to vacate the order, alleging that it was an unconstitutional prior restraint since the jurors’ names had already been announced. The trial judge refused to vacate the order as a prior restraint, characterizing it instead as a restrictive order directed to court personnel, but acknowledged the media’s right to publish information (the jurors’ names) which had already been publicly announced in court. However, the media was urged to consider carefully the “Bar-Bench-Press Declaration of Delaware” which encouraged news representatives to respect the privacy of jurors.
Gannett, nevertheless, immediately published an article in the midst of trial highlighting the names and giving profiles of individual jurors. Apparently, this was the first newspaper article in Delaware to publish such information while a trial was in progress. The article admitted that the “jurors value[d] their privacy highly and became extremely upset when a ... television crew followed some of them to lunch and attempted to film them eating.” Further, it stated that the jurors “avoid[ed] media, family members of the victims and defendant, and anyone else who appeared] recognizable, leaving local restaurants at the sight of a familiar face from the courtroom.” The article then continued with detailed profiles of the jurors, giving their names, hometowns, occupations, marital status, number and ages of their children, personal mannerisms and appearance. The latter portrayals were rarely flattering. Jurors were described as having a “stern expression”, a “stern demeanor”, “stylishly dressed”, “admits to a hearing problem”, “stout”, “mostly bald”, “short and round”, and “tall, balding and thin”.
Recognizing the press’ claim of a prior restraint in Lynch, the Pennell trial judge issued the Order limiting disclosure of the jurors’ names to anyone other than the State and defense. It permitted “the Court to proceed with the selection [of jurors] and to allow any interested parties such as the News-Journal to come in and talk about what should be the procedure without first let[ting] the names be disclosed to the public.” Proceedings on Motion to Vacate Order, at 22 (Sept. 11, 1989). The trial judge bottomed his ruling on the principle that voir dire of the jury is subject “to control ... as a matter of court management.” Id. at 11.
On September 7, 1989, Gannett moved to intervene and to vacate the Order. The Superior Court heard oral argument on these motions on the morning of September 11. Both the State and Pennell urged the trial court to keep jurors’ identities confidential. In an expedited bench ruling, the trial judge refused to vacate his Order. No evidence was presented at this hearing, but before the trial court’s written opinion was issued, Gannett submitted certain affidavits. Voir dire of potential jurors also began. Jury selection took several days.
In a written opinion, the trial judge again refused to vacate the Order. State v. Pennell, Del.Super., Cr.A. Nos. IN88-12-0051 to 0053, Gebelein, J., 1989 WL 167445 (Oct. 2, 1989). He cited statutory and judicial authority giving trial judges discretion in such matters. Id. at 4 & 10 (citing 10 Del.C. § 4513 and Superior Court Jury Plan § 16). See also Revised Report of the Judicial Conference Committee on the Operation of the Jury Selection on the “Free Press — Fair Trial” Issue, 87 F.R.D. 518, 529-32 (1980). He also stated that the press had no right to require a trial judge to release jurors’ names under Delaware’s Freedom of Information Act because records exempted from disclosure by statute (such as 10 Del. C. § 4513) are not considered public records. Id. at 9.
Finally, the trial court noted that even assuming the decision to withhold jurors’ names amounted to a prior restraint, or closure of judicial proceedings under the first amendment, it was justified in withholding the names as the least restrictive alternative to protect the defendant from the “reasonable probability or reasonable likelihood” of prejudice. Id. at 14 & 18-25 (citing State v. Shipley, Del.Super., 497 A.2d 1052, 1055 (1985)). In applying Shipley’s “reasonable probability” of prejudice test, the trial court expressly rejected the higher “substantial probability” standard for closure enunciated in Press-Enterprise II. Id. at 15 n. 3. It reasoned that Press-Enterprise II involved unique facts and trial procedures not present here. Id.
On September 18, Gannett appealed. This Court initially ordered Gannett to show cause why it had standing, but later vacated the order because “[t]he Superior Court’s order has arguably affected a right within the zone of the media’s interests which are protected by the First Amendment.” Gannett Co. v. State, Del.Supr., 565 A.2d 895, 897 (1989). The appeal was expedited, and because it proceeded simultaneously with Pennell’s criminal trial, we appointed an amicus curiae to file a brief on behalf of the State and Pennell. The Court expresses its appreciation to the amicus for that effort.
On appeal Gannett contends that even though it never was excluded from the courtroom at any stage of the proceedings, including jury voir dire and selection, the Order requiring court personnel to keep jurors’ names confidential constitutes a partial closure of the trial. Gannett claims to have a qualified first amendment right of access to public announcement of jurors’ names based on the threshold tests of experience and logic under Press-Enterprise II.
, First, Gannett argues that jurors’ names have historically been announced in Delaware courts, and that neither 10 Del.C. § 4513 nor the Superior Court Jury Plan are applicable to that historical tradition. Second, it claims that disclosure of jurors’ names enhances both the fairness and the appearance of fairness in criminal trials by imposing an added sense of responsibility on jurors and by promoting public confidence in the trial process. Gannett and its amici curiae also argue that disclosure and publication of jurors’ names provides an additional check against juror bias. Based on this alleged first amendment right, Gannett concludes that the trial court erred in failing to provide notice and to conduct a proper hearing, in refusing to find a substantial threat to a compelling state interest, and in failing to consider “less restrictive” alternatives such as sequestration of the jury.
II.
The trial court ruled that it had statutory and common law authority to prohibit announcement of jurors’ names in court, and that its prohibition did not violate federal or state constitutional principles. We review such legal holdings de novo. Cavalier Oil Corp. v. Hartnett, Del.Supr., 564 A.2d 1137, 1141 (1989); Fiduciary Trust Co. v. Fiduciary Trust Co., Del.Supr., 445 A.2d 927, 930-31 (1982). The standard of review is whether the trial court erred in formulating or applying legal precepts. Rohner v. Niemann, Del. Supr., 380 A.2d 549, 552 (1977). If the trial court’s determinations did not violate state law, or federal or state constitutions, we review its decision to prohibit announcement of jurors’ names for an abuse of discretion. Gimbel v. Signal Cos., Del.Supr., 316 A.2d 619, 620 (1974).
A.
Based on the first and fourteenth amendments, Gannett challenges the trial court’s inherent and statutory powers to issue the Order. Neither a criminal defendant’s sixth amendment right to a public trial, nor an independent state constitutional right to “open” courts is at issue here. The sixth amendment guarantees a criminal defendant the right to a speedy and public trial by an impartial jury. U.S. Const, amend. VI. That right is personal to the accused. The United States Constitution does not expressly guarantee the public a right of access to a criminal trial. Gannett v. DePasquale, 443 U.S. 368, 379-80 & 391, 99 S.Ct. 2898, 2905, 2911, 61 L.Ed.2d 608 (1979); Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 1662, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring). Similarly, the Delaware Constitution guarantees open courts, but that section, like similar provisions in other state constitutions, does not specify what information must be announced at trial. When authorized by statute, or in order to protect a defendant’s right to a fair trial, courts may withhold disclosure of certain information without depriving the public of its right to open courts. See State v. White, 97 Ariz. 196, 398 P.2d 903, 904 (1965); Smith v. State, Del.Supr., 317 A.2d 20, 23-24 (1974); Johnson v. Simpson, Ky.App., 433 S.W.2d 644, 646 (1968); Brown v. State, 222 Miss. 863, 77 So.2d 694, 696 (1955); E.W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896, 899-904, appeal dism’d, 164 Ohio St. 261, 130 N.E.2d 701 (1955).
Here, Gannett’s claimed right of access to jurors’ names rests solely on the first amendment and the Delaware Constitution’s guarantee of a free press. See generally Annotation, Propriety of Order Forbidding News Media From Publishing Names and Addresses of Jurors in Criminal Cases, 36 A.L.R.4th 1126, 1128 (1985) [hereinafter Annotation]. We thus confront the novel issue whether the news media have a qualified first amendment right of access requiring announcement of jurors’ names during a criminal trial. No court has yet decided the issue under similar circumstances, and significantly, it does not fit neatly into any analytical structure previously applied in first amendment cases involving jurors’ names. Other cases regarding the media’s right of access to jurors’ names presented questions of prior restraints on the press, the public’s right of access to judicial records, and the actual closure of courtroom proceedings. While those circumstances are not present here, we nonetheless have applied the Press Enterprise II test for closure of judicial proceedings as the most closely analogous basis for disposition of the matter. Cf In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1331-32 (D.C.Cir.1985) (applying Press-Enterprise II’s threshold test for closure to first amendment claim of access to judicial records).
Gannett concedes that no prior restraint is involved, since the jurors’ names were never announced. Compare Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (Brennan, Circuit Justice 1983) (order which permanently restrained all persons from publishing jurors’ names and addresses after their names had been announced in voir dire proceedings was a prior restraint). Moreover, the specific information sought, the announcement of jurors’ names in court, is not itself a judicial record. Compare Newsday, Inc. v. Sise, 71 N.Y.2d 146, 524 N.Y.S.2d 35, 518 N.E.2d 930 (1987), cert. denied, 486 U.S. 1056, 108 S.Ct. 2823, 100 L.Ed.2d 924 (1988) (jurors’ names part of judicial records); Hearst Corp. v. State, 60 Md.App. 651, 484 A.2d 292 (1984) (jurors’ names and addresses part of court’s files). Although we see no real distinction between a court’s authority over judicial records and its power over the announcement of information contained in those records, we do not decide the case on this ground. But see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973 (1980) (“It is not crucial whether we describe this right ... as a ‘right of access’ or a ‘right to gather information’....”) (citations omitted); In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1337 (D.C.Cir.1985) (“The more precise inquiry, however, is a functional rather than classificational one: whether information of the sort at issue here — regardless of its prior or current classification as court records — was traditionally open to public scrutiny.”).
Finally, it is inaccurate to describe this as a closure case. The judicial proceedings, including voir dire, were never closed to the public, and Gannett has cited no case directly in support of its thesis of closure. The failure of Gannett’s position is confirmed by an application of Press-Enterprise II.
B.
Preliminarily, we note the admonitions of the Supreme Court of the United States in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), which has strong parallels to this dispute. Sheppard held that the trial judge’s failure to protect the defendant from prejudicial publicity, and to control disruptive influences in the courtroom, warranted reversal of a much-publicized murder conviction. Throughout the pretrial and trial proceedings, the trial judge failed to protect the jury from media attention. Regarding that problem, which is relevant here, the Court noted:
[T]he jurors were thrust into the role of celebrities by the judge’s failure to insulate them from reporters and photographers. The numerous pictures of jurors, with their addresses, which appeared in the newspapers before and during the trial itself exposed them to expressions of opinion from both cranks and friends. The fact that anonymous letters had been received by prospective jurors should have made the judge aware that this publicity seriously threatened the jurors’ privacy.
Id. at 353, 86 S.Ct. at 1517 (citation omitted).
Based on this and other prejudicial influences, the Supreme Court held that the trial court failed to adequately control the proceedings. It specifically noted that trial courts were empowered to control the courtroom and courthouse premises, and to restrict information disseminated by attorneys, witnesses, and court officials. Id. at 358-59, 86 S.Ct. at 1520. Moreover, Sheppard recognized that:
[U]nfair and prejudicial news comment on pending trials has become increasingly prevalent_ Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused_ If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.
Id. at 362-63, 86 S.Ct. at 1522.
Sheppard, therefore, imposed an affirmative duty on trial courts to limit outside influences on juries. See Hughes v. State, Del.Supr., 490 A.2d 1034, 1041 (1985) (quoting with approval from same language in Sheppard). Based on Sheppard, the Order issued here was within the trial court’s traditional power over such matters. While Sheppard did not specifically involve a first amendment challenge, we nevertheless keep in mind its principles when extensive media activity threatens a party’s fundamental right to a fair trial.
C.
The first amendment explicitly guarantees public freedom of expression, but the judicially-recognized first amendment right of access to information is not immutable. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 585-86, 100 S.Ct. at 2831-32 (Brennan, J., concurring). The Supreme Court of the United States has recognized an implicit first amendment right of access to criminal trials, id. at 580, 100 S.Ct. at 2829; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982), to the selection of jurors, Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-09, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”), and to certain preliminary hearings, Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. at 2741. To our knowledge, however, no court has yet recognized a right of access to jurors’ names.
Even when a first amendment right of access exists, it is qualified, and not absolute. Id. at 9, 106 S.Ct. at 2740; Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619. This qualified right “may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984). To overcome the presumption of openness once a qualified right of access attaches, a trial court must find that “closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824. Specifically, a court must find that (1) “there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent” and (2) “reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.” Press-Enterprise II, 478 U.S. at 14, 106 S.Ct. at 2743. See also Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824; Richmond Newspapers, 448 U.S. at 581, 100 S.Ct. at 2829.
In a criminal proceeding the proponent of the first amendment claim must satisfy a two-part threshold test. Press Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740. First, it must be demonstrated that “the place and process have historically been open to the press and general public.” Id. (experience test). Second, it must be shown that “public access plays a significant positive role in the functioning of the particular process in question.” Id. (logic test). The party alleging the existence of the qualified first amendment right must pass both parts of this threshold test. Only then does a qualified first amendment right attach. Id. at 9, 106 S.Ct. at 2740; Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619.
Applying those principles here, we find that Gannett does not satisfy either part of the threshold test. Our decision is in accord with other jurisdictions that have recently addressed somewhat similar issues. United States v. Edwards, 823 F.2d 111 (5th Cir.1987), cert. denied sub nom., Times-Picayune Pub. Corp. v. Edwards, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988); United States v. Doherty, 675 F.Supp. 719 (D.Mass.1987); Newsday, 71 N.Y.2d at 153 n. 4, 524 N.Y.S.2d 35, 518 N.Y.S.2d 930. Because we find that no qualified first amendment right of access exists, we need not consider whether the trial court conducted a proper hearing or made the findings mandated by Press-Enterprise I after such a qualified right attaches.
III.
Turning to the so-called experience test, Gannett first must prove that announcement of jurors’ names has traditionally been open to the press and general public. Only recently have courts looked to historical experience as an indication of whether a constitutional right of access exists. Press-Enterprise II, 478 U.S. at 10-11, 106 S.Ct. at 2741-42; Press-Enterprise I, 464 U.S. at 505-08, 104 S.Ct. at 821-23; Globe Newspaper, 457 U.S. at 605, 102 S.Ct. at 2619; Richmond Newspapers, 448 U.S. at 564-69, 100 S.Ct. at 2820-23; Id. at 589-93, 100 S.Ct. at 2834-35 (Brennan, J., concurring). See also DePasquale, 443 U.S. at 384-91, 99 S.Ct. at 2907-11 (evaluating historical right of access to open trials under the sixth amendment).
[T]he case for a [constitutional] right of access has special force when drawn from an enduring and vital tradition of public entree to particular proceedings or information. Such a tradition commands respect in part because the Constitution carries the gloss of history. More importantly, a tradition of accessibility implies the favorable judgment of experience.
Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834. (Brennan, J., concurring) See also Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740; Globe Newspaper, 457 U.S. at 605, 102 S.Ct. at 2619.
The Supreme Court of the United States has drawn from many sources to determine the national tradition respecting rights of access. These include English and American commentators on the common-law as it existed when the Constitution was adopted and ratified, Press-Enterprise I, 464 U.S. at 506-07, 104 S.Ct. at 822; Richmond Newspapers, 448 U.S. at 565-67, 100 S.Ct. at 2821-22; id. at 589-90, 100 S.Ct. at 2834 (Brennan, J., concurring); DePasquale, 443 U.S. at 389, 99 S.Ct. at 2910; contemporaneous provisions of state constitutions and statutes, and contemporaneous state judicial decisions, Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. at 2741; Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823; Richmond Newspapers, 448 U.S. at 567-68, 100 S.Ct. at 2822-23; id. at 590, 100 S.Ct. at 2834 (Brennan, J., concurring); DePasquale, 443 U.S. at 386 n. 15, 99 S.Ct. at 2908 n. 15; and current state statutes indicating the public’s common understanding of the historical experience and tradition, Press-Enterprise II, 478 U.S. at 11 & 11 n. 4, 106 S.Ct. at 2742 & 2742 n. 4; DePasquale, 443 U.S. at 388 n. 19 & 391 n. 23, 99 5.Ct. at 2910 n. 19 & 2911 n. 23.
Gannett contends that the names of jurors have traditionally been announced in court. It claims that the procedure for jury selection under old English common law required jurors’ names to be called out in court, but Gannett primarily focuses and relies on the historical practice in Delaware. It argues that the Delaware practice, as reported in the earliest recorded cases and in an early treatise on Delaware procedure, has been to announce the names of prospective jurors in court after the jury is empaneled. Based on these sources, Gannett contends that the practice in Delaware satisfies Press-Enterprise II's threshold test of experience. We disagree.
Gannett’s rather myopic focus on the historical courtroom practice in Delaware is too narrow to establish a national constitutional right. If a qualified first amendment right of access to jurors’ names exists, it must be drawn from the broad spectrum of sources cited above. Under Gannett’s thesis we would be required to recognize a first amendment right in Delaware, even if its historical practice differed from that of all other states. Whenever the Supreme Court has considered whether the public has a first amendment right of access to a proceeding, it has relied on the national tradition and experience. Press-Enterprise II, 478 U.S. at 10 & 10 n. 3, 106 S.Ct. at 2741 & 2741 n. 3 (noting the common practice of open preliminary hearings in many states); Richmond Newspapers, 448 U.S. at 567-68, 100 S.Ct. at 2822-23 (discussing common experience of open trials in several states); DePasquale, 443 U.S. at 388 n. 19, 99 S.Ct. at 2910 n. 19 (reviewing diverse state traditions regarding public attendance at criminal trials).
More importantly, Gannett’s historical sources are incomplete and inadequate. Gannett cites Blackstone’s Commentaries as evidence of the tradition of announcing jurors’ names in court. 3 W. Blackstone, Commentaries on the Laws of England 358 (1769) [hereinafter Commentaries]. It also refers to two Delaware cases with oblique references to the "naming” of jurors, Wilds v. Green, Del.Supr., 2 Del.Cas. 292, 295 (1817); State v. Turner, Del.Supr., 1 Del.Cas. 94, 95 (1796), and to Wooley’s treatise on Delaware procedure, Wooley, Practice in Civil Actions §§ 640 & 657 (1906).
Gannett’s sources do not support its conclusion. The passage cited from Blackstone’s Commentaries describes the process of empanelling the jury based on a statutory provision:
A common jury is one returned by the sheriff according to the direction of the statute 3 Geo. II c. 25 ... and when each cause is called, twelve of these persons, whose names shall first be drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused. ...
As the jurors appear, when called, they shall be sworn, unless challenged by either party.
Commentaries at 358 (emphasis added). Whether jurors’ names were announced out loud appears insignificant to Blackstone. Instead, he relies upon the process of challenging jurors for cause to insure the fairness of the trial:
We may here again observe, and observing we cannot but admire, how scrupulously delicate, and how impartially just, the law of England approves itself, in the constitution and frame of a tribunal.... 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In its caution against partiality and bias, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shown of malice or favour to either party.
Id. at 365. Indeed, in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Supreme Court of the United States stated that voir dire is “the method we have relied on since the beginning” to identify bias. Id. at 1038, 104 S.Ct. at 2892 (citing United States v. Aaron Burr, 25 F.Cas. 49, 51 (C.C.D.Va.1807) (No. 14,692g) (Marshall, C.J.).
Similarly, the Delaware cases and Wooley’s treatise do not support the position that announcement of jurors’ names is constitutionally required. Merely because an historic procedure exists, does not automatically enlarge it to constitutional proportions. As the United States Court of Appeals for the District of Columbia stated: “[I]t is risky ... to assume that a practice of granting access where no objection is made establishes the existence of an acknowledged right to access.” In re Reporters, 773 F.2d at 1336.
Gannett’s historical sources do not mention whether the decision to announce jurors’ names is within the trial court’s traditional authority to control courtroom proceedings. Cf. Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. at 825; Sheppard v. Maxwell, 384 U.S. at 358, 86 S.Ct. at 1520. Its sources hardly support the type of strong national tradition recognized in other right of access cases. Compare Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. at 2741 (preliminary hearings); Press-Enterprise I, 464 U.S. at 505-08, 104 S.Ct. at 821-23 (jury selection proceedings); Richmond Newspapers, 448 U.S. at 564-69, 100 S.Ct. at 2820-23 (criminal trials) with DePasquale, 443 U.S. at 387-91, 99 S.Ct. at 2909-11 (no sixth amendment right to attend pretrial suppression hearings); In re Re porters, 773 F.2d at 1336 (“[W]e cannot discern an historic practice of such clarity, generality and duration as to justify the pronouncement of a constitutional rule_”). Indeed other courts have noted that the theory of the jury at common law supports an historical tradition of judicial discretion as to disclosure of juror names.
The virtue of the jury system lies in the random summoning from the community of twelve, “indifferent” persons— “not appointed till the hour of trial” — to decide a dispute, and in their subsequent, unencumbered return to their normal pursuits. The lack of continuity in their service tends to insulate jurors from recrimination for their decisions and to prevent the occasional mistake of one panel from being perpetuated in future deliberations. Because the system contemplates that jurors will inconspicuously fade back into the community once their tenure is completed, anonymity would seem entirely consistent with, rather than anathema to, the jury concept.
United States v. Scarfo, 850 F.2d 1015, 1023 (3rd Cir.) (citation to Blackstone’s Commentaries omitted), cert. denied, — U.S. -, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988). See also Newsday, 71 N.Y.2d at 153 n. 4, 524 N.Y.S.2d 35, 518 N.E.2d 930.
Paramount in any historical analysis is the fact that trial courts in Delaware and other states have long had specific statutory discretion over the release of jurors’ names. Indeed, Blackstone recognized the importance of statutory procedures when he noted that “[a] common jury is one returned by the sheriff according to the discretion of the statute_” Commentaries, at 358 (emphasis added). Thus, we turn to a comprehensive analysis of the statutory history, which was not provided to us by any of the parties.
In 1968, the United States Congress enacted the Federal Jury Selection and Service Act. 28 U.S.C. § 1861 et seq. Among its provisions is the following:
Plan for random jury selection
(a) Each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of sections 1861 and 1862 of this title, and that shall otherwise comply with the provisions of this title....
(b) Among other things, such plan shall....
(7) fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.
28 U.S.C. § 1863(b)(7) (emphasis added). The Federal Act’s legislative history provides some additional insight into the historical discretion traditionally afforded trial courts in connection with disclosing jurors’ names. Congress noted that the statute “permits the present diversity of practice to continue. Some district courts keep juror names confidential for fear of jury tampering. Other district courts routinely publicize the names.” H.R.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 1792, 1801. Indeed, prior to adoption of the current statute, federal law left the manner of empanelling jurors to local rules of court mo-delled after diverse state statutes. United States v. Antz, 16 F. 119, 125 (C.C.E.D.La.1883). See also State v. Felts, 133 F. 85, 92 (C.C.W.D.Va.1904); United States v. Breese, 172 F. 765, 768 (W.D.N.C.1909).
In 1975, the United States Supreme Court issued its opinion in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) strongly endorsing both the policy and statutory “machinery” of the recently-enacted Federal Jury Selection and Service Act. Id. at 529, 95 S.Ct. at 697. Less than six months later, based on language virtually identical to that found in the federal law [28 U.S.C. § 1863(b)(7)], our General Assembly passed a statute authorizing the Superior Court to adopt a written plan for random selection of grand and petit juries. 60 Del.Laws ch. 225 § 4504 (1975). Like the Federal Act, that statute specifically authorized judges to keep jurors’ names confidential:
(a) The Superior Court shall devise and place into operation a written plan for random selection of grand and petit jurors ....
(b) Among other things, such plan shall:
(7) fix the time when the names drawn from the qualified jury wheel shall be disclosed to the parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the President Judge of the Superior Court, or such other superior court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.
60 Del.Laws ch. 225 § 4504(b)(7) (emphasis added).
Pursuant to this statute, in 1976 the Superior Court adopted its plan for random jury selection in New Castle County. That plan, which remains in force today, specifically provides:
Section 16. Disclosure of Information About Jurors. The names of qualified jurors drawn from the qualified jury wheel shall be made available to the public upon request unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.
Plan of the Superior Court of Delaware For the Random Selection of Grand and Petit Jurors, § 16 (effective Sept. 13, 1976) (emphasis added) [hereinafter Jury Selection Plan]. This has been part of the fabric of our law for over 13 years.
In 1987 the General Assembly reiterated the concept of judicial discretion over release of jurors’ names by codifying it in Delaware’s Jury Selection and Service Act. 66 DeLLaws ch. 5, § 1. Section 4513 provides:
The names of persons summoned for jury service shall be disclosed to the public and the contents of jury qualification forms completed by them shall be made available to the parties unless the Court determines that any or all of this information should be kept confidential or its use limited in whole or in part in any case or cases.
10 Del. C. § 4513 (emphasis added). Significantly, all parties have failed to note that this provision was modeled on virtually identical language contained in the Uniform Jury Selection and Service Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1970 and approved by the American Bar Association in 1972. It states:
The names of qualified jurors drawn from the qualified jury wheel and the contents of jury qualification forms completed by those jurors shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.
Uniform Jury Selection and Service Act, 13 U.L.A. 437, 454-55 (West 1986) (emphasis added). Currently, eleven states, including Delaware, have adopted nearly identical provisions granting trial courts discretion over public dissemination of jurors’ names. Colo.Rev.Stat. 13-71-110(5); 10 Del.C. § 4513; Haw.Rev.Stat. § 612-18 & 27; Id.Code § 2-210(5); Ind.Code Ann. 33-4-5.5-12(6); Md.Cts. & Jud.Proc.Code Ann. § 8-202(3); 14 Me.Rev.Stat.Ann. § 1254-A; Minn.Stat.Ann. § 593.42 subd. 5; Miss. Code Ann. § 13-5-32; N.D.Code 27-09.1-09; Utah Code Ann. 78-46-13(5).
These statutes give trial courts broad discretion over release of jurors’ names. Specifically, they authorize courts to keep jurors’ names confidential in the interest of justice and to limit such use in any case in whole or in part. That language is virtually identical to Delaware’s present statute and jury plan. Thus, the trial court’s Order, directing court personnel to keep jurors’ names confidential, is totally consistent with such statutory authority and the clear national and local history it represents. Whatever practice may exist in cases where no media attention is focused on the jury, our statute, with its surrounding history, is a clear statement of public policy that subordinates any general procedure to its specific mandate and purpose.
Gannett contends that the current Delaware statute is inapplicable for two reasons. First, it is claimed that the phrase “summoned for jury service” restricts the exercise of judicial discretion to control over the list of jurors who are sent jury summons. That argument places an artificial limitation on the trial court’s discretion based on a tortuous interpretation of the word “summoned”. When a juror is called to the jury box, he remains summoned for jury service. Second, Gannett claims the trial court lacks discretion over announcement of the jurors’ names because the discretionary language is applicable only to public dissemination of the juror qualification forms. We reject that claim because it is inconsistent with the plain language of the statute. Neither the Delaware statute nor the Uniform Act appears to limit the trial courts’ discretion to juror qualification forms, and we refuse to adopt such a strained construction based on an unsupported inference of legislative intent.
Gannett’s interpretation of the statute clearly ignores the powers conferred upon the Superior Court to keep jurors’ names confidential “in any instance”, or their use “limited in whole or in part.” We consider the former phrase to be synonymous with that in the uniform law — “in any case or cases” — while the latter, obviously, is identical. Generally, Delaware jurors are “summoned”, not for a particular case, but as part of a panel from which numerous juries may be drawn for a wide variety of civil and criminal trials. If the court’s powers were limited, as Gannett argues, only to this group, then the statutory language to which we have referred would be meaningless.
Given the overwhelming statutory history, we must reject Gannett’s claim that the historical practice in the nation, or in Delaware, requires announcement of jurors’ names. The historical sources do not support Gannett’s conclusion. Rather, the historical tradition gives trial courts discretion over such matters, which is reflected in express statutory provisions enacted by duly elected representatives of the people at the state and national levels. The Supreme Court has repeatedly referred to such enactments as additional evidence of a public tradition in constitutional right of access cases. Any general practice upon which Gannett relies, completely ignoring the broad national basis of our law, is, and must be, subordinate to statutory provisions clearly and validly expressing the public will.
Thus, Gannett has failed to carry its burden of establishing any historical tradition of constitutional dimension regarding public access to jurors’ names. While this should end the matter, we nonetheless analyze the remaining aspects of the Press-Enterprise II test in view of the novelty of the issues and for future guidance of trial courts in applying the proper standards.
IV.
The second part of Press-Enterprise IPs threshold test is whether public access to jurors’ names plays a significant positive role in the trial or selection of the jury. This “logic” criterion requires us to examine whether “the historical practice play[s] ‘an essential role’ in the proper functioning of government ... since otherwise the most trivial and unimportant historical practices ... would be chiselled in constitutional stone.” In re Reporters, 773 F.2d at 1332. For example, in Press-Enterprise II, the preliminary hearing in California was found to be “often the final and most important step in the criminal proceeding.” 478 U.S. at 12, 106 S.Ct. at 2742. Similarly, Richmond Newspapers noted that openness was an indispensable attribute of criminal trials. 448 U.S. at 569, 100 S.Ct. at 2823. By contrast, then-judge Scalia described as trivial the practice of reading judgments aloud in open court. In re Reporters, 773 F.2d at 1332. Cf. Williams v. Florida, 399 U.S. 78, 102, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970) (jury of twelve viewed as historical accident, unnecessary to effect purposes of jury system). When applied to the historical experience, therefore, the logic test helps “to distinguish between what the Constitution permits and what it requires.” DePasquale, 443 U.S. at 385, 99 S.Ct. at 2908.
At oral argument, Gannett claimed that announcement of juror names was the most important element of jury selection. It contends that announcement of prospective jurors’ names promotes both fairness and the appearance of fairness. Allegedly, it encourages fairness by allowing the public to serve as a further check on the possibility that a juror may have some undisclosed bias, which publication of his or her name may ultimately reveal. Gannett and amici curiae also maintain that announcement of jurors’ names promotes the appearance of fairness by enhancing public trust in the criminal justice system through open criminal proceedings.
By way of background, the fairness of jury selection in Delaware is adequately safeguarded in several respects. First, a panel of prospective jurors is randomly selected from lists of registered voters, supplemented with names from other sources. 10 Del.C. §§ 4507(a)(2), 4510; Jury Selection Plan §§ 5-8, 13 & 15. That group is initially screened when they complete juror qualification forms which request basic information such as name, address, and occupation. A second screening occurs during voir dire, when the trial court asks the jurors specific questions, prepared by the Court and counsel, to determine which jurors should be dismissed for cause. 10 Del.C. § 4511(a). See also Hughes, 490 A.2d at 1041 (“[T]he most effective and perhaps most critical” procedural safeguard available to protect and maintain juror impartiality in a highly publicized murder trial “is the careful use of voir dire.”). Finally, jurors undergo a third screening when counsel exercise peremptory challenges without regard to cause.
Counsel in Pennell were given the jurors’ names and other information contained on the qualification forms. The prospective jurors were subjected to the screening procedures described above, which in this case were more intense than usual. Under these circumstances, announcement of the jurors’ names is insignificant. “[T]he public interest in the administration of justice is protected by the participants in the litigation.” DePasquale, 443 U.S. at 383, 99 S.Ct. at 2907. Moreover, the proceedings were not closed. The public, including the press, attended and observed jury selection. Gannett’s fairness argument is based on the presumption that jurors will not respond truthfully, and therefore, the public requires a further safeguard, which it is claimed only the press can provide. We refuse to adopt such a cynical view of the criminal justice system. The courts, the State and the defendant have concurrent paramount concerns for, and obligations to assure, a fair trial. This includes a proper solicitude for the jury so that it is not subject to the extraneous influences of a media representative which is also engaged in the business of selling newspapers. See also Sheppard, 384 U.S. at 353, 86 S.Ct. at 1517.
Gannett’s argument, that announcement of jurors’ names promotes fairness, confuses the defendant’s rights under the sixth amendment with the public’s rights under the first amendment. The press cannot rely on the sixth amendment’s guarantee of a fair trial to the defendant, particularly when courts have determined that criminal defendants may have a fair trial even without knowing jurors’ names. United States v. Tutino, 883 F.2d 1125 (2d Cir.1989); Scarfo, 850 F.2d at 1021-23. See also, Note, Anonymous Juries, 54 Fordham L.Rev. 981 (1986). Cf. United States v. Edmond, 886 F.2d 442 (D.C.Cir.1989). Courts have repeatedly upheld the use of anonymous juries against defendants’ sixth amendment challenges based on fair trial rights. We see no reason to afford the media greater rights of access to jurors’ names than the Constitution permits the parties to a trial. As the United States Court of Appeals for the Second Circuit has ruled:
What we are confronted with, then, is a voir dire procedure under which both the prosecutor and defense were equally in the dark as to names and addresses of the prospective panelists, and where neither side was told the exact ethnic background or religion of those persons. Both sides, however, had an arsenal of information about each person that was based on his responses to questions concerning his own life, as well as his attitudes about the issues that would arise in the case. This can hardly be deemed “inadequate”. The law as to jury selection is not so unbending that it cannot, or should not, be accommodated to the realities of modern day trials.... Clarence Darrow’s ideal has already yielded to what has been thought to be the greater necessity, i.e., the need to streamline the voir dire process by resting the control of it in the district judge, subject to demand that the essentials of the case should be the subject of inquiry. If that demand is satisfied, then so will have been the rights of the parties.
United States v. Barnes, 604 F.2d 121, 142-43 (2d Cir.1979) (citation and footnote omitted). The defendant clearly has an equal, if not greater, interest than the media in receiving a fair trial. Gannett’s attempt to distinguish these cases on factual grounds misses that vital point.
While there may be the rare case in which some salutary effect upon the jury selection process occurs by reason of the press’ access to jurors’ names, we consider that remote under these circumstances. The persons most directly involved — the trial judge, the defendant, and the State— were provided with the jurors’ names and other information. We cannot say that the appearance of fairness would have been significantly enhanced by announcement of jurors’ names in such a highly publicized setting. The trial court had a justified concern that the fairness of jury selection in the Pennell trial was endangered, not enhanced, by the extensive publicity Gannett had just recently focused upon the Lynch jury.
Gannett’s sweeping claim that announcement of jurors’ names promotes the appearance of fairness is a characteristic overstatement of the issue, and not without irony. All aspects of the trial were entirely open to the public. Except for space limitations, no one was denied access to the courtroom. Given the extraordinary publicity which Gannett itself had so recently fueled by the attention it gave the Lynch jury, it is perhaps more accurate to say that had the Pennell jurors’ names been announced in court, the public perception would have been one of concern for the jurors and the extraneous influences upon them which Gannett’s publicity invited. See Sheppard, 384 U.S. at 353, 86 S.Ct. at 1517 (jurors exposed “to expressions of opinion from both cranks and friends”). The trial court’s Order assured the public that the trial was fair without closing the proceedings to anyone. Contrary to the rather pietistic claims of Gannett and its amici curiae, there is nothing to suggest that such actions undermined public trust in the judicial system.
Thus, Gannett fails the logic part of Press Enterprise IPs threshold test. Announcement of jurors’ names in court promotes neither the fairness nor the perception of fairness, when the parties are provided with the jurors’ names and all proceedings are open to the public. It strains credulity to suggest that such an announcement was essential to the proper functioning of the trial. Having failed both parts of the Press-Enterprise II test, Gannett clearly has no qualified right of access to the jurors’ names.
y.
Since Gannett has not shown that a qualified first amendment right of access exists, the failure of the trial court to conduct an evidentiary hearing, or to apply Press-Enterprise II’s substantial probability test, does not, under these circumstances, mandate reversal. In the absence of a qualified first amendment right of access, the trial court’s decision to order court personnel to keep jurors’ names confidential was within its discretion. We find no abuse of that discretion.
The trial court has an affirmative duty to control all aspects of pretrial and trial proceedings. The very recent prior media coverage of jurors in the Lynch trial created legitimate concerns that jurors in Pennell might be improperly influenced by extraneous factors or sources sufficient to endanger the defendant’s right to a fair trial. The Order responded to those concerns in a reasonable manner without imposing the more onerous strictures of sequestration or closure of the courtroom. The judgment of the Superior Court is AFFIRMED.
[OPINION BY WALSH, Justice, type=dissent]
WALSH, Justice,
dissenting, with whom CHRISTIE, Chief Justice joins:
The majority today holds that a court may deny the public and the press access to the names of jurors impanelled in a criminal trial, as a matter of discretion, without balancing the public’s right of access against the threat to a defendant’s Sixth Amendment right to a fair trial.. The United States Supreme Court has recognized that the public’s right of access to judicial proceedings is protected by the First Amendment to the United States Constitution. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I”); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). I believe that these precedents compel us to conclude that the public has a qualified First Amendment right to know the identity of those who determine the guilt and innocence of criminal defendants. In my view, the reasons cited by the trial judge for restricting that right in this case are insufficient to overcome this presumption of openness. Moreover, as the majority acknowledges, the trial court entered its order denying access without conducting an evidentiary hearing and without applying the substantial probability test mandated by Press-Enterprise II. Accordingly, I dissent.
I
The majority has recounted the history of this case in the Superior Court, but certain aspects of the proceedings bear particular emphasis in examining the First Amendment question. First, although I do not fault the trial judge’s concern over the extreme publicity that this case received at the pretrial stage, it must be noted that the initial closure order was entered sua sponte and without prior notice to the State or the defendant. The public in general as well as the press did not become aware of the closure order until two months later. Second, the trial judge based his denial of access ruling on two considerations: juror taint through publicity, with its consequent effect on the defendant’s right to a fair trial, and juror privacy. The majority, however, has chosen not to rely on the juror privacy rationale, upholding denial of access on the sole ground that “intense media coverage” would affect the jury’s deliberations. Nevertheless, in focusing on the Lynch trial as a justification for closure, both the trial judge and the majority have, in effect, provided a juror privacy rationale as the basis for protecting Pennell’s Sixth Amendment rights. It is important at the outset therefore to address the significance of Gannett’s conduct during the Lynch trial.
During the murder trial of Joyce Lynch in mid-1989, Gannett published an article that included the names and physical descriptions of the impanelled jurors. The 12 Who Will Deliver Lynch Verdict, The News Journal, June 3, 1989, at A9, col. 1. I have no quarrel with the majority’s view that Gannett’s profile of the Lynch jurors constitutes journalism of questionable quality. The article tends to trivialize jury service, focusing primarily on the age, physical characteristics, and family size of the jurors. I also harbor no illusions about the motives of the communication media in reporting events in the criminal trial process. The media are engaged in a competitive commercial enterprise where success is measured in terms of circulation and ratings. But judges are not journalism critics entitled to bring to the constitutional debate over freedom of the press our distaste, whether justified or not, for certain journalistic practices. One could well imagine a juror profile article that sought to remind the public of the importance of jury service or helped the public to understand the trial strategies that led to the acceptance or rejection of certain jurors. On a more controversial level, one could even imagine an article that questioned whether a given jury was truly representative or that challenged the qualifications of certain jurors, thereby invoking public debate on the system of jury selection. Had Gannett published any of these articles, I doubt that the trial judge would have taken it upon himself to limit public access to the Pennell trial. Unfortunately, because Gannett printed a distasteful article offensive to individual jurors in a prior case, our courts have approved a method to prevent Gannett or anyone else from printing any article on the subject of personalized juror selection in the Pennell case. Thus, I fear that the majority’s substantial reliance on the Lynch article constitutes a subtle yet troubling intrusion into the editorial policies of the press.
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), upon which the majority also relies, suggests that even where the press has reported upon a trial in a highly irresponsible manner, the courts should act to limit the effects of publicity on the trial rather than limiting the press’ access or attempting to influence the content of what is published. Under the majority’s view, however, a court may examine the editorial policies of a newspaper to determine if they pose a threat to fair trials. If the court believes that a prior article posed such a threat, it may then limit the press’ access to the information that allowed the newspaper to write that article, although there is no evidence to suggest that any actual harm stemmed from its publication. It may thereby prevent any newspaper from printing any article using the forbidden information, regardless of the quality or beneficial effects of articles that might be written. I cannot sanction this form of judicial scrutiny. “ ‘Regardless of how beneficient-sounding the purposes of controlling the press might be, we ... remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation’s press.’ ” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 560-61, 96 S.Ct. 2791, 2803-04, 49 L.Ed.2d 683 (1976) (quoting Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 259, 94 S.Ct. 2831, 2840, 41 L.Ed.2d 730 (1974) (White, J., concurring)).
II
As the majority notes, the Supreme Court of the United States has recognized an implicit First Amendment right of access to the judicial process. While the right is a qualified one, the Supreme Court has been particularly solicitous to protect the public’s right of access to criminal trials. In Richmond Newspapers, a majority of the Court found that the First Amendment demands that criminal trials be open, although no one opinion received a majority of the Court’s votes. In Globe Newspaper, however, the Court overturned a state statute that allowed a trial judge to close a trial involving allegations of a sexual assault upon a minor. The Court reaffirmed its decision in Richmond Newspapers and held that a trial could be closed only if such a measure was necessitated by a compelling governmental interest. In Press-Enterprise I, the Court extended this rule to the selection of jurors, and in Press-Enterprise II, to pretrial hearings in criminal cases. More recently, several federal courts have determined that the First Amendment’s protections extend to judicial records. See, e.g., In re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, 8th Cir., 855 F.2d 569 (1988) (documents filed in support of search warrant); United States v. Smith, 3d Cir., 776 F.2d 1104 (1985) (bill of particulars); Associated Press v. United States District Court, 9th Cir., 705 F.2d 1143 (1983) (general constitutional right of access to judicial records); United States v. Dorfman, 7th Cir., 690 F.2d 1230 (1982) (same). But see Baltimore Sun Co. v. Goetz, 4th Cir., 886 F.2d 60 (1989) (no right of access to affidavit in support of search warrant); In re Reporters Comm. for Freedom of the Press, D.C.Cir., 773 F.2d 1325 (1985) (no right of access to discovery documents in civil trial prior to entry of judgment).
The majority frames the issue in this case quite narrowly. The majority first attempts to classify access to jurors’ names as access to either judicial records or judicial proceedings but ultimately declines to label the access that Gannett seeks. Thus, the majority analyzes the announcement of jurors’ names as if the announcement, by itself, were a specific judicial proceeding from which the public was excluded. To determine whether this “proceeding” is presumptively open under the First Amendment, the majority applies the two-part test announced in Press-Enterprise II: (1) has “the place and process ... historically been open” and (2) does “public access play[] a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740. By eschewing the “records” classification, the majority can avoid confronting the growing body of federal jurisprudence that protects access to judicial records in criminal cases. More important, by analyzing the announcement of names as if it were a distinct proceeding, the majority can separate the identity of the jurors from the jury selection process, ignoring the fact that eliciting and announcing the names of jurors is and always has been a part of voir dire in Delaware, throughout the nation, and since the birth of the jury system in England. In Press-Enterprise I, the Supreme Court held that the jury selection process is presumptively open to public scrutiny. I find no basis for distinguishing juror identity from other aspects of juror selection. Accordingly, I believe that the Superior Court’s order constituted a partial closure of voir dire, directly prohibited by Press-Enterprise I. Moreover, even if announcement is analyzed as if it were completely separate from jury selection, I believe that the twin considerations of “experience and logic” drawn from Press-Enterprise II require that the public be given access to jurors’ names.
A.
In Press-Enterprise I, the Supreme Court examined the constitutionality of an order that had excluded the public from all but three days of a six-week voir dire. The subsequent trial involved charges of rape and murder, and the trial judge justified his action on the ground that sensitive, personal information would be solicited from jurors during voir dire. He hoped to protect the privacy of jurors and to promote candor in an effort to protect the defendant’s fair trial rights. However, the Supreme Court found that juror selection is presumptively an open process and that access is protected by the First Amendment. “[Pjublic proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected.” Press-Enterprise I, 464 U.S. at 509, 104 S.Ct. at 823 (emphasis added).
The majority contends that jurors were openly selected because “[t]he judicial proceedings, including voir dire, were never closed to the public.” Ante, at 741. It is true that the public was never excluded from the courtroom. But the issue does not turn on logistics. The primary concern of Press-Enterprise I and related cases is minimizing secrecy in criminal proceedings. Anonymity is the very essence of secrecy. Thus, while there is a difference in degree between a court order that keeps jurors anonymous and an order that closes voir dire altogether, both orders prevent the public from receiving information that they otherwise would have received. Both alter the normal course of events in a way that restricts public access to the jury selection process.
The majority also notes that no provision of law dictates what information must be announced at trial or in the jury selection process; therefore, “[wjhen authorized by statute, or in order to protect a defendant’s right to a fair trial, courts may withhold disclosure of certain information without depriving the public of its right to open courts.” Ante, at 740. When carried to its logical extreme, this statement eviscerates the holding of Press-Enterprise I. It is true that potential jurors need not discuss every possible detail of their lives during voir dire; for example, the public has no possible interest in knowing whether jurors sitting in a personal injury case support the death penalty. The public does have a right to know information about jurors that is generated in the normal course of jury selection unless a restriction is necessary to preserve a compelling interest. That is the holding of Press-Enterprise I. Thus, for example, the public does have a right to know the jurors’ views on the death penalty in a capital murder case.
The identity of each juror is the first piece of information generated in the selection process. In the usual course of events, each juror will answer to his name as his examination begins and the names of impanelled jurors will be announced as they are sworn. In the Pennell trial, however, this information was generated in secret and provided only to counsel. Apparently, the majority believes that the simple expedient of eliciting information about jurors in secret divorces it from the voir dire and allows it to be withheld from the public. Under this reasoning, a state might pass a statute providing that jurors’ views on the death penalty could be kept confidential “in the interest of justice.” The trial judge could question the jurors on their views and provide this information to counsel. He could then assert that voir dire was open because all other information was elicited in public; however, the statute gave him discretion to “withhold disclosure of certain information.”
Nothing in the majority’s opinion would prevent the public or press from suing to gain access to the restricted information, but under the majority’s reasoning it would be futile to allege simply that voir dire had been partially closed. Rather, the party seeking access would have to invoke Press-Enterprise II. He would have to prove that jurors’ views on the death penalty had traditionally been public and that publicizing their views was beneficial to the trial process; in short, he would be asked to show that access was supported by “experience and logic.” He might well be successful in proving this, but he should not be put to the task. Press-Enterprise I held that the jury selection process is presumptively open. I see no grounds for determining that only certain aspects of that process must be open, while others may be closed at the whim of the trial judge. The majority’s reasoning turns Press-Enterprise I on its head: rather than forcing the court to show that a given restriction on access to voir dire is necessary, the majority would force the party seeking access to prove that access is necessary.
It is true that limiting the public’s access to jurors’ names is less restrictive than a complete closure of voir dire. Nevertheless, the Court in Press-Enterprise I strongly suggested that no limits should be imposed unless necessitated by compelling circumstances. In short, even if protecting juror anonymity is only the first step toward complete closure, it is a significant step nevertheless. The Court held that an individual juror might assert a privacy interest that would allow restrictions upon public access to sensitive areas of questioning. The trial court could then hold the voir dire of that juror in camera, but the transcript of the questioning would be made available at a later date. However, under some circumstances, “a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of the juror withheld, to protect the person from embarrassment.” Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. at 825. In his concurrence, Justice Marshall elaborated:
“[T]he constitutionally preferable method for reconciling the First Amendment interests of the public and the press with the legitimate privacy interests of jurors and the interests of defendants in fair trials is to redact transcripts in such a way as to preserve the anonymity of jurors while disclosing the substance of their responses.” Id. at 520, 104 S.Ct. at 829 (Marshall, J., concurring in the judgment). In other words, if a constitutionally compelling issue of privacy or fairness is present, a juror’s name may be kept confidential. Otherwise, the voir dire should be free of restrictions upon public access.
B.
Even if one follows the majority’s lead and separates the identity of jurors from voir dire, I believe that the twin considerations of “experience and logic” set forth in Press-Enterprise II support a right of public access. The reasons for looking to historical practice are twofold. First, a tradition of openness at English common law provides evidence of the practices in use at the time that the First Amendment was adopted. Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834 (Brennan, J., concurring in the judgment) (“[T]he Constitution carries the gloss of history.”). Second, “a tradition of accessibility implies the favorable judgment of experience.” Id.
The early jury of feudal society was, of course, a very different institution from the modern jury. Jurors were selected not because they were ignorant of the facts in dispute but because they were familiar with them. 1 W. Holdsworth, A History of English Law 332-33 (2d ed. 1922). The jurors were to serve as witnesses, as judges of the credibility of their acquaintances, and as final arbiters of the dispute. Since they were drawn from the landowners living “de vicineto ” or in the immediate vicinity, their identity was certain to be known to those attending the trial. See Pope, The Jury, 39 Texas L.Rev. 426, 437 (1961). See also In re Baltimore Sun Co., 4th Cir., 841 F.2d 74, 75 (1988). As the role of the jurors changed from witnesses of fact to judges of fact, prospective jurors could be challenged for personal knowledge of the matter to be tried. Nevertheless, the jurors were drawn “de corpore comita-tus” — from the county in which the dispute arose. 3 W. Blackstone, Commentaries on the Laws of England 359-60 (Sharswood ed. 1882) (1769). This practice continues in present-day America, although population growth and a vast expansion of the pool of eligible jurors make it unlikely that the identity of modern jurors will be apparent to the public unless their names are revealed.
In the sixteenth century, at a time when many of the concepts that underlie the modern jury had been crystalized, see Pope, supra, at 434-44, the names of jurors were announced in the selection process. Sir Thomas Smith, writing in 1565, describes the selection of jurors in vivid detail. “The clarke ... nameth all these that be on the quest [the jury]. The crier at everie name cryeth aloude ... and then saith good men and true_” T. Smith, De República Anglorum 99 (L. Alston ed. 1906 & photo, reprint 1979) (1585). See also M. Hale, The History of the Common Law of England 162 (C. Gray ed. 1971) (1713) (“When the Jurors appear, and are called, each Party has Liberty to take his Challenge....”) The announcement of the names is connected not only to voir dire, but also to the oaths that the jurors take; thus, it played a role in fixing a sense of responsibility to the crown and the accused upon the jurors.
The early English practice was still in use on the eve of the American Revolution, as demonstrated by a passage from Blackstone’s Commentaries:
A common jury is one returned by the sheriff according to the direction of the statute 3 Geo. II. c. 25 ... and when each cause is called, twelve of the persons, whose names shall first be drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused. ...
As the jurors appear, when called, they shall be sworn, unless challenged by either party. 3 W. Blackstone, supra, at 358 (emphasis in original).
Blackstone also describes how, if a sufficient number of satisfactory jurors could not be drawn from those summoned, the judge could order that the balance be filled from a so-called tales de circumstantibus, drawn from spectators present in the court. 3 W. Blackstone, supra, at 364-65. It seems unlikely that the identity of these jurors could be kept secret from the remaining spectators, even if the court had wished to impanel an anonymous jury.
The practice of publicly naming jurors continued in the American colonies and in the new American nation. At the highly publicized treason trial of Aaron Burr, the names of jurors were public, notwithstanding the defense’s argument that unfavorable publicity had colored popular opinion against Burr to such an extent that an unbiased panel could not be selected. United States v. Burr, C.C.D.Va., 25 F.Cas. 55 (No. 14,693) (1807). The reported case provides a detailed description of the voir dire, which was presided over by Chief Justice Marshall and conducted before “[a]n immense concourse of citizens.” Id. at 74. “At the instance of Mr. Hay [the prosecuting attorney] the names of the jurors were called, when forty-six answered to their names, two only being absent.” Id. The prospective jurors were then called one by one and questioned extensively on their opinions and the role that the newspapers had played in shaping them. When only four satisfactory jurors could be drawn from the first venire, a second group of potential jurors was summoned and “called, and all except seven answered to their names.” Id. at 85. Finally, after a voir dire lasting several days, twelve satisfactory jurors were chosen and sworn.
The names of the selected jurors and of the venire were then called over. After which, John M. Sheppard, and Richard Curd were selected to complete the panel, and sworn. The following is, therefore, a complete list of the petit jury: [twelve names]. Id. at 87.
In sum, there is a considerable body of historical evidence to suggest that jurors’ names were presumptively public both under English law and in the early days of the American nation. Indeed, neither the majority nor the State cites a single example of a case tried before the 1970s in which an anonymous jury was impanelled. Most of the recent cases involve trials of organized crime figures in which a concern for the safety of jurors was present. See, e.g., United States v. Tutino, 2d Cir., 883 F.2d 1125 (1989); United States v. Scarfo, 3d Cir., 850 F.2d 1015 (1988), cert. denied, — U.S. -, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); United States v. Barnes, 2d Cir., 604 F.2d 121 (1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Others involved a defendant’s demands for a closed voir dire and did not address the First Amendment, United States v. Layton, N.D.Cal., 519 F.Supp. 959 (1981), or denied access on mootness grounds. Hearst Corp. v. Maryland, 60 Md.App. 651, 484 A.2d 292 (1984). Others involved situations in which names had been called in open court but access to files was denied. Newsday, Inc. v. Sise, 17 N.Y.2d 146, 524 N.Y.S.2d 35, 518 N.E.2d 930 (1987), cert. denied, 486 U.S. 1056, 108 S.Ct. 2823, 100 L.Ed.2d 924 (1988); United States v. Gurney, 5th Cir., 558 F.2d 1202 (1977). Thus, the only precedential basis for the majority’s ruling that I am able to discern is United States v. Edwards, 5th Cir., 823 F.2d 111 (1987), cert. denied sub nom. Times Picayune Publishing Corp. v. Edwards, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988) and United States v. Doherty, D.Mass., 675 F.Supp. 719 (1987). Even these cases recognized that the First Amendment has some bearing on access to jurors’ names but held that certain limits were acceptable under the circumstances.
One cannot conclude with certainty that in the entire history of Anglo-American jurisprudence an anonymous jury was never impanelled prior to the 1970s. Yet the majority appears to demand that degree of certainty before it would be willing to recognize a tradition of openness. Rather than requiring Gannett to show that a strong presumption of openness exists, the majority would ask it to prove that restrictions have never and could never have been imposed. By contrast, the United States Supreme Court has never required such an impossible standard of proof. In Press-Enteryrise II, the Court recognized that a number of state statutes enacted in the 19th century had allowed preliminary hearings to be closed to the public. However, it found that these statutes fit within the broad tradition of openness because hearings could be “closed only for cause shown.” Press-Enterprise II, 478 U.S. at 11, 106 S.Ct. at 2742.
Contrary to the majority’s claims, a tradition of openness is reflected in currently enacted statutes. In fourteen states, statutes give the public access to master jury lists. In eighteen states, statutes serve to create a presumption of public access to the names of qualified jurors or the jurors to be called for a venire. Moreover, these statutes address only the procedures for revealing juror lists prior to impanelling. Research reveals no statute that alters the common law practice of naming jurors in open court during voir dire, and ten states have codified this practice.
Nevertheless, the majority relies upon one federal and eleven state statutes to demonstrate that trial judges enjoy discretion to deny access to jurors’ names. First, it should be pointed out that a statute enacted against a common law tradition of openness does not necessarily abolish that tradition. In Richmond Newspapers, Globe Newspaper, and Press-Enterprise II, the Supreme Court found a constitutional right of access notwithstanding the existence of statutes that purported to allow closure. Thus, if jurors’ names have almost always been public and if the right of access plays a role in the judicial system, the right of access could not be altered by statute.
Moreover, I believe that the statutes cited by the majority fit within a tradition of openness. The statutes suggest that jurors’ names should be public in the vast majority of cases; they create a presumption of openness. However, the trial judge may keep information about jurors confidential or limit its use “in the interest of justice.” Uniform Jury Selection and Service Act, 13 U.L.A. 437, 454-55 (West 1986). In short, the statutes give the trial judge a measure of discretion. However, the term “discretion,” standing alone, is meaningless. Courts must often draw upon sources other than a bare statute to determine the scope of discretion and the standards under which it is exercised. See United States v. Criden, 3d Cir., 648 F.2d 814, 817-19 (1981); Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 636-43 (1971). Thus, constitutional principles may shape and channel the exercise of discretion. The statutes upon which the majority relies purport to allow the use of information about jurors to be “limited in whole or in part.” Yet the majority must concede that a court could not give full effect to this language without running afoul of the constitution. If a judge released jurors’ names but issued an order barring their publication, he would be “limit[ing]” the “use” of the information. However, his order would also constitute a prior restraint, in direct contravention of the First Amendment. Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (Brennan, Circuit Justice 1983). Thus, the statutes cannot be viewed in isolation from the First Amendment.
There are, of course, numerous instances in which “the interests of justice” might demand that public access be limited. Jurors’ names could be withheld to protect jurors from the discussion of highly sensitive personal information. See Press-Enterprise I, 464 U.S. at 511-13, 104 S.Ct. at 824-26. They could be withheld where there was evidence that jurors might be injured, threatened, or bribed. Thus, there is some scope for the discretion that the majority relies upon. However, in light of the strong tradition of openness that may be drawn from the historical record, and in light of the inherent value of openness that the Supreme Court has recognized, I believe that this discretion cannot be exercised in isolation from constitutional principles.
C.
In determining whether the public enjoys a right of access to a particular judicial proceeding, the Supreme Court has looked not only to history, but also to the structural role that access plays in the process being considered. The issue is “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740. While this “logic” consideration is a distinct prong of the test announced in Press-Enterprise II and applied by the majority in this case, the Supreme Court has noted that “experience and logic” are complementary considerations, “for history and experience shape the functioning of governmental processes.” Id. at 9, 106 S.Ct. at 2740. See also Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834 (“[A] tradition of accessibility implies the favorable judgment of experience.”) (Brennan, J., concurring in the judgment). Thus, in many instances a process that historically has been open has been open for good reason. In citing “a classic example” of a proceeding that fails the “logic” test, the Supreme Court has pointed to the grand jury system. Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740. Not coincidentally, the grand jury system has never been open to the public.
This is not to suggest that a given proceeding could not fail one of the tests in Press-Enterprise II but pass the other. For example, many aspects of a civil trial are often held in public, but since the concerns of the general public are implicated less directly there than in a criminal proceeding, the logic test might not support a right of access. See generally In re Reporters Comm. for Freedom of the Press, D.C.Cir., 773 F.2d 1325, 1336 (1985) (right of access to civil discovery document supported by neither experience nor logic). By contrast, it could be argued that if access would play a significant positive role, it should be allowed regardless of tradition. See In re Reporters Comm., 773 F.2d at 1347 (Wright, J., concurring in part and dissenting in part). Nevertheless, I believe that the core concern of the logic test is to insure that the press cannot force access to those “kinds of government operations that would be totally frustrated if conducted openly.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740. By contrast, the majority treats the logic test as the means to prevent “ ‘trivial and unimportant historical practices’ ” from becoming “ ‘chiselled in constitutional stone.’ ” Ante, at 749 (quoting In re Reporters Comm., 773 F.2d at 1332). As examples of such trivial practices, the majority points to the reading of judgments aloud in open court and the tradition of impanelling a twelve-person jury. Such practices, while perhaps mere historical accidents, do not implicate the First Amendment; they present “no question of a truncated flow of information to the public.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1318, 55 L.Ed.2d 570 (1978). Thus, they provide no help in determining the conditions under which access “plays a significant positive role.” In situations in which the “flow of information” is involved, however, the critical inquiry is whether the judicial system functions better if that information is released or is kept secret.
The Supreme Court has stressed repeatedly that openness in the criminal justice system has a special value. Openness, and the publicity it invites, serves at least two distinct functions; it “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823. First, openness promotes fairness by providing a check on the arbitrary exercise of power. “The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 587, 96 S.Ct. 2791, 2816, 49 L.Ed.2d 683 (1976) (Brennan, J., concurring in the judgment). Thus, openness “gives assurance that established procedures are being followed and that deviations will become known.” Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823. Openness also promotes fairness by encouraging accurate testimony. Richmond Newspapers, 448 U.S. at 596-97, 100 S.Ct. at 2838-39 (Brennan, J., concurring in the judgment). Second, openness enhances the appearance of fairness by involving the public in the judicial process, providing certainty that justice is being done. As Chief Justice Burger explained:
[Ojpenness has what is sometimes described as a “community therapeutic value.” Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done.... When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. Press-Enterprise I, 464 U.S. at 508-09, 104 S.Ct. at 823 (citations omitted).
I believe that both of these goals — promoting fairness and the appearance of fairness — are impaired when jurors are cloaked by a veil of anonymity. To understand the value of openness in this context, it is important to analyze the role of the jury within our judicial and political system. By examining the nature of the jury as an institution, one comes to understand that it is fundamentally a public institution, and that anonymity serves to impair both the jury’s sense of responsibility to the public and the public’s faith in the jury.
Although its roots stretch back to the Middle Ages, the American jury is profoundly democratic. See Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946). See also 1 A. de Tocqueville, Democracy in America 285-91 (H. Reeve tr.1900) (1st Am. ed. 1840). Jury service is the primary means by which the people participate in the judicial branch of government. The jury serves as the representative of the people, to insure that justice conforms to the sensibilities of the community and “to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.” Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). Too often, however, jury service is seen as an arduous duty rather than a precious right.
Our courts have gone to great pains to insure that juries are drawn from a representative cross section of the community. See, e.g., Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). The importance of insuring that juries are drawn from a representative pool is twofold. First, the democratic nature of the jury protects the defendant. “The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Strauder v. West Virginia, 100 U.S. at 308. The representative character of the jury insures that the defendant will be judged by the standards of society rather than the biases of distinct groups. Taylor v. Louisiana, 419 U.S. at 530, 95 S.Ct. at 697. Second, drawing jurors from the broad spectrum of society protects the interest of each citizen in participating in government. Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); O’Hair v. White, 5th Cir., 675 F.2d 680 (1982). If groups such as women or racial minorities are excluded from service, “ ‘[s]uch action is operative to destroy the basic democracy and classlessness of jury personnel.’ ” Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946) (quoting United States v. Roemig, N.D. Iowa, 52 F.Supp. 857, 862 (1943)). “The injury is not limited to the defendant— there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of the courts.” Id.
In Democracy in America, Alexis de Tocqueville discussed the value of the American jury as a political institution; his observations have lost none of their cogency in a century and a half. He argued that the people’s participation in the judicial system strengthens their ability to participate in all forms of government, schooling them in the value of law and reminding them of their rights and responsibilities within society.
The jury ... serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged, and with the notion of right.... The jury teaches every man not to recoil before the responsibility of his own actions, and impresses him with that manly confidence without which political virtue cannot exist. It invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge towards society, and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society....
Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well. 1 A. de Tocqueville, supra, at 289, 291.
The jury represents the public, bringing the public’s values and common sense to bear upon the problems of justice. In turn, the institution of the jury educates the public and heightens the civic awareness of each citizen.
If jurors are cloaked in anonymity, the bond between the jury and the public is weakened. While the juror cannot (and should not) be held responsible for his actions in the same way as a prosecutor or other elected official, it is equally important that he experience a keen sense of responsibility to the public whom he serves. Unless each juror knows that his identity is public knowledge, he may never properly appreciate the significance of the power that society has entrusted to him. An anonymous juror may feel that he has been called upon to serve as a fungible cog in the judicial apparatus, to render a verdict that draws meaning only from its enforcement by the state. By contrast, the juror whose identity is public knows that the verdict that he and his fellows render is a piece of handiwork to which their names are attached. This knowledge can only heighten the juror’s inner sense of duty, teaching him “not to recoil before the responsibility of his own actions.” 1 A. de Tocqueville, supra, at 289. While the announcement of jurors’ names does not hold jurors up to the “public scrutiny and criticism” to which publicity subjects “the police, prosecutors, and judicial processes,” it nevertheless “guards against the miscarriage of justice” by instilling the sense of personal responsibility that is so vital to the integrity of the jury system. Cf. Nebraska Press Ass’n, 427 U.S. at 587, 96 S.Ct. at 2816 (Brennan, J., concurring in the judgment).
Announcing jurors’ names also plays a role in encouraging truthful voir dire testimony and uncovering juror bias. Justice Brennan has suggested that if trials are closed, witnesses may be tempted to lie, secure in the knowledge that their testimony will never leave the courtroom. Richmond Newspapers, 448 U.S. at 596-97, 100 S.Ct. at 2838 (Brennan, J., concurring in the judgment). The interest of the courts in encouraging truthful voir dire testimony of jurors is just as strong as their interest in promoting accurate testimony by witnesses. In this regard, anonymity poses the same danger as complete closure because the anonymous witness or juror knows that his name cannot be attached to his testimony. In a similar vein, if a juror does lie or fail to disclose relevant information during voir dire, the truth may be discovered only if a member of the public comes forward to challenge the fitness of the juror. The majority rejects these arguments out of hand, asserting that they are “based on the presumption that jurors will not respond truthfully.” Ante, at 750. The majority argues that voir dire questioning is wholly adequate to uncover bias, and that to suggest otherwise is “to adopt... a cynical view of the criminal justice system.” Id. I do not wish to overestimate the empirical significance of the public’s role in uncovering juror bias. Examples of the public coming forward to question juror qualifications are rare, but do exist. See, e.g., MacKenzie, Study Raises Questions About Mitchell-Stans Juror, Wash. Post, Feb. 5, 1976, at A-2, col. 1 (assistant U.S. attorney challenged impartiality of juror after reading his name in the newspaper). Nevertheless, I am troubled by the majority’s insistence that the public should rely upon the courts and counsel to insure that the process is working properly. The majority cannot believe that jurors never lie about their qualifications or that voir dire will always uncover partiality. Yet they are willing to deny the public any role in providing a check on bias. The public can, of course, learn that Pennell Juror No. 103 made certain statements, but no one can evaluate the veracity of these statements without knowing who made them. If the public must rely upon the courts and counsel to insure that jurors are unbiased, I see no reason why it should not also be forced to rely upon the courts and counsel to safeguard all aspects of a fair trial. Yet the Supreme Court has made it clear that the public has a right to oversee the criminal process, to help insure that it is functioning properly. I see no basis for diluting that right in the area of juror selection.
Because anonymity threatens the jury’s sense of duty, it must also undermine the public’s faith in the jury. Quite apart from the fact that anonymous juries weaken the public’s ability to monitor jury selection, there is something inherently suspect about power that is held in anonymous hands. In contrast, announcing the jurors’ names reminds members of the public that the jurors are truly the representatives of the community — their “neighbors, fellows, [and] associates.” Strauder v. West Virginia, 100 U.S. at 308. It demonstrates, as no other measure can, that the jurors are ordinary citizens — not lawyers, not unelected officeholders, and not nameless faces. When the public observes an anonymous jury, it may be tempted to believe that the administration of justice is someone else’s concern or that it is entrusted into the hands of judges and lawyers alone.
The majority condemns Gannett’s arguments in favor of the value of openness as “pietistie.” Ante, at 751. Perhaps they are. However, I cannot fault a vigorous effort to insure that the processes of the courts are fully open to the observation of the people and that the vital bond between the public and the jury is not weakened.
Ill
Having established that Gannett enjoys a qualified First Amendment right of access to jurors’ names, it remains to complete the final step of the analysis under Press-Enterprise II — the balancing of that right against the perceived threat to Pennell’s Sixth Amendment right to a fair trial. The majority declined to enter that realm because it believed Gannett to have failed the threshold test. But because the trial judge completed the circle it is of more than academic interest that the test be fully applied.
When First Amendment rights, qualified or not, are at stake, our standard of review must be quite searching. “Where ... the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest.” Globe Newspaper, 457 U.S. at 606-07, 102 S.Ct. at 2619-20. Before entering a restrictive order, the trial court must conduct a hearing on the issue and articulate specific findings to support the order. Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. at 2742-43. “If the interest asserted is the right of the accused to a fair trial,” the court must find “that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.” Id. at 14, 106 S.Ct. at 2743.
All would acknowledge that the fair trial rights of a defendant in a criminal case constitute a compelling interest that might justify limitations on First Amendment rights under certain circumstances. Id. But cf. Nebraska Press Ass’n, 427 U.S. at 611-12, 96 S.Ct. at 2828 (Brennan, J., concurring in the judgment) (no inherent conflict between First and Sixth Amendments). Under limited circumstances, the right of jurors to privacy might also justify limits on public access. Press-Enterprise I, 464 U.S. at 511-13, 104 S.Ct. at 824-26. However, the record is devoid of evidence that would suggest a substantial probability of a threat to either of these interests.
In Press-Enterprise I, the Court shed light on the conditions under which concerns of juror privacy might justify restrictions on access to voir dire. The Court stressed that the right of privacy belongs to the juror and must be asserted by him if it is to be recognized. Moreover, it is implicated only when the questions asked at voir dire probe into sensitive details of a juror’s life. Therefore, the Court suggested that the trial judge advise jurors if sensitive questions are likely to be asked and give them the option of requesting that measures be taken to eliminate any possible embarrassment. In his concurrence, Justice Blackmun stressed that the Court did not, and had never, found that jurors have a broad privacy right in their role as jurors. “Despite the fact that a juror does not put himself voluntarily into the public eye, a trial is a public event.” Press-Enterprise I, 464 U.S. at 514 n. 1, 104 S.Ct. at 826 n. 1 (Blackmun, J., concurring). Thus, while a prospective juror has an interest in sheltering embarrassing personal information from public knowledge, he has no interest in preventing the public from knowing that he has been called to perform his civic duty by serving on a jury, however lurid the details of the trial that he will observe. A fortiori, a trial judge acting on his own initiative has no interest in keeping this information from the public.
As previously noted, Gannett’s conduct in the Lynch trial is central to the trial judge’s finding of need for closure, as well as the majority’s upholding of that result on different grounds. The majority seems to conclude that Gannett would have published a similar article about the Pennell jurors and that members of the community would then attempt to influence the jury. This conclusion requires a tremendous jump of logic. Although it is safe to assume that Gannett wished to publish the names of the Pennell jurors, there is no evidence on the record that suggests a substantial probability that jurors would be subjected to outside influences. After Gannett published the names of the Lynch jurors, no one attempted to contact the jurors and the trial concluded without any untoward incidents. Moreover, although the Lynch trial may have been the first Delaware trial in which a newspaper published jurors’ names, the press in other states have often published the names of jurors in celebrated cases. Neither the State nor the majority has cited any case in which a mistrial was declared or a conviction overturned because members of the general public attempted to influence jurors.
In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the local press went to great lengths to convince the public that a defendant charged with murder was guilty. A flood of extremely prejudicial and sensationalistic publicity preceded and continued throughout the defendant’s trial. As a result, jurors were “exposed ... to expressions of opinion from both cranks and friends.” Id. at 353, 86 S.Ct. at 1517. Finding that the defendant had not received a fair trial in “[t]he carnival atmosphere” that prevailed, id. at 358, 86 S.Ct. at 1520, the Supreme Court overturned his conviction. The Court suggested that the trial judge should have taken various steps to limit prejudice. Significantly, none of the suggested measures limited the public’s right of access to the trial process; in particular, juror anonymity was never considered by the Court as a means of promoting a fair trial. Moreover, although the Pennell trial was attended by considerable publicity, there is no evidence, and it has not been suggested, that the press has engaged in the egregious attempt to prejudice public opinion that was present in Sheppard. Accordingly, I find no basis for concluding that Pennell’s Sixth Amendment rights would have been jeopardized by the release of jurors’ names.
IV
The denial of access order issued by the trial judge was prompted by an understandable concern that the publicity attendant upon the Pennell trial, perhaps unprecedented in the history of this State, posed a threat to the court’s ability to assure the defendant a fair trial. The use of an anonymous jury to accomplish that result, however, implicates the public’s and the press’ fundamental right of access to the trial process, which is assured by the' First Amendment. Because the decision to impanel an anonymous jury was made contrary to precedential standards and without a balancing of competing constitutional rights, I consider it erroneous as a matter of law. Since the majority validates that result by its ruling, I must respectfully dissent.
When the order announcing our decision was issued on November 13, 1989, Pennell’s criminal trial was still in progress. Pennell has since been convicted on two counts of first degree murder. The jury could not reach a verdict on the third count. He has filed an appeal.
The trial court compiled a list of thirty-five articles published in the News-Journal, alone, from the date of the indictment on November 30, 1988 to March 4, 1989, near the time of the pretrial suppression hearing. During the trial, which began on September 25, 1989, and ended with guilty verdicts and sentences of life imprisonment, imposed by the jury, on November 28, 1989, Gannett continued its extensive coverage. The case also was reported almost daily on radio and television, frequently with "live” coverage from the courthouse. .The parties disagree about the date on which the Order became available to the public. Gannett claims that the Order was not docketed properly until October 5, 1989, the day after its Opening Brief was filed with this Court. The State and Pennell contend that the Order was placed in the publicly accessible file on July 31, 1989, only a few days after it was issued. The docket sheet reflects both possible dates. The Order was apparently not given a docket number until October 4, 1989, but it appears on the docket sheet between items "51” and "53”, reflecting a transaction date of July 31, 1989. In any event, Gannett became aware of the Order before jury selection began.
During voir dire, the trial court asked prospective jurors whether they could perform their duties fairly and impartially if their names were made public. Only five of seventy-six potential jurors stated that they felt they could not be fair to the defendant if their names were publicly announced. Of the jurors selected for the final panel, none believed that they would be improperly influenced by public announcement of their names. However, Gannett acknowledged at the first oral argument that the jurors’ views on this subject were not controlling.
Although we consider the standard applied by the trial court to be erroneous, our application of Press-Enterprise II, and the analysis thereunder, leads us to the same result reached by the Superior Court, albeit on different grounds.
The first amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const, amend. I. The first amendment is applicable to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).
The sixth amendment provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. U.S. Const, amend. VI.
The Delaware Constitution provides: All courts shall be open; and every man for an injury done him in his reputation, person, movable or immovable possessions, shall have remedy by the due course of law, and justice administered according to the very right of the cause and the law of the land, without sale, denial, or unreasonable delay or expense; and every action shall be tried in the county in which it shall be commenced, unless when the judges of the court in which the cause is to be tried shall determine that an impartial trial thereof cannot be had in that county. Suits may be brought against the State, according to such regulations as shall be made by law. Del. Const, art. I, § 9.
The Delaware Constitution provides in part: "The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty.” Del. Const, art. I, § 5. We have previously noted that this provision has the same scope as the federal first amendment. In re Opinion of the Justices, DeLSupr., 324 A.2d 211, 213 (1974). For simplicity, we will refer below only to the first amendment.
The rules of evidence and ethical conduct lend further support to Sheppard. The Uniform Rules of Evidence, which have been adopted in Delaware, suggest that the trial court has an affirmative duty to limit outside influences on jurors. Generally, jurors may not testify about the jury’s deliberations, but Rule 606 abrogates that general rule whenever a juror testifies as to "whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Unif.R. Evid. 606. The Model Rules of Professional Conduct, recently adopted in Delaware, similarly prohibit lawyers from publicly disseminating information known or reasonably known to have a substantial likelihood of materially prejudicing a defendant’s right to a fair trial. Rule 3.6(a).
The Supreme Court’s decisions refer to experience and tradition interchangeably in this context. Press Enterprise II, 478 U.S. at 8-10, 106 S.Ct. at 2740-41; Richmond Newspapers, 448 U.S. at 589-93, 100 S.Ct. at 2834-36 (Brennan, J., concurring). In our opinion, the crucial inquiry is whether the public has some expectation of a right of access. Whether that expectation derives from years of experience dating back to adoption or ratification of the Constitution or from a more recent tradition is inconsequential, so long as it is the type of experience or tradition that should be incorporated into the Constitution.
At oral argument, Gannett's views on this were murky at best: Justice Moore: Now you say that it’s this historic aspect. By what historic standard are you judging that, Delaware or nationally? Mr. Elliott: Delaware. Justice Moore: Well, does that then mean that the first amendment might be different in Delaware from a neighboring state? Mr. Elliott: I don’t necessarily believe that. I think you have to look at the historic practice and what has taken place in this state. Justice Moore: Well does — then, doesn’t that mean that the first amendment could be fifty different things? Mr. Elliott: I think that the answer to that question is that it would be the same in all states. Justice Moore: Well, how do you know that? Suppose for example — how do you know that? Mr. Elliott: Because the Supreme Court in Press-Enterprise dealt with a proceeding in California and adopted a test, and that test is applicable to— Justice Moore: I understand that it’s applicable, but you say we’re going to look at Delaware history. Suppose Delaware in the last ten years had had a policy of not disclosing jurors’ names, but the forty-nine other states all did. So Delaware's first amendment rule would be different from the other forty-nine states? Mr. Elliott: No, I don’t believe it would be. Justice Moore: Well, then, how do you square that with what you just told me? Mr. Elliott: Because you have to look at — you look at the history but you also look at the purpose behind the proceeding. Justice Moore: Well, where do you look? Do you look in Delaware? You said Delaware, in Delaware history, and that raises the question is there to be a potential for fifty different first amendment rules? Mr. Elliott: I don’t believe there is. Justice Moore: Well, then why would you look only at Delaware? Mr. Elliott: Well, I think you’d want to look at our practice. You could look at practices in other jurisdictions, but I think what’s really, specifically relevant to this Court is the Delaware practice.
While Wooley was an important guide to Delaware practice in the days of old common law pleadings, its vestigial significance to modern Delaware practice relates to executions upon judgments, mortgage foreclosures, and the extraordinary writs of certiorari, mandamus, prohibition, and quo warranto, none of which have anything to do with jury selection. Until 1948, when Delaware adopted new rules based on the Federal Rules of Civil and Criminal Procedure, Delaware courts still functioned under the Statutes of 27 Eliz. ch. 5 and 4 Anne ch. 16. It has been observed that in throwing off the “shackles of medieval scholasticism” in 1948, "[n]o other American jurisdiction, contemplating procedural change, could possibly have [had] farther to go.” Herrmann, The New Rules of Procedure in Delaware, 18 F.R.D. 327, 337 n. 16 (1956).
It also has been suggested that trial courts have always retained inherent power to control the release of jurors’ names, even in the absence of a statute. If that is so, and we think it is, then this only further undercuts any notion of an historic practice of constitutional proportions, and buttresses the opposite conclusion.
Eight of these jurisdictions, Colorado, Hawaii, Idaho, Indiana, Maine, Minnesota, Mississippi, and North Dakota, have adopted the Uniform Jury Selection and Service Act in its entirety. 13 U.L.A. at 437.
Gannett’s restrictive interpretation of the statute requires the insertion of a comma after the first clause ("The names of prospective jurors shall be disclosed to the public”) to separate it from the discretionary language ("unless the Court determines that_”). If the legislature had intended to separate the clauses, it could easily have done so. We note that Gannett also cites a Delaware statute, 10 Del.C. § 4518, in support of its contention that jurors’ names have historically been announced in court. That statute did not specifically require that jurors names be announced in court. In any event, it was repealed in 1975. 60 Del.Laws, c. 225, § 2.
Again, we note that neither Gannett nor any other party to this appeal cited this complete statutory history to us.
The following colloquy occurred: Justice Moore: [The juror's identity] means more than knowing whether the juror is related to a person in the prosecution, whether the person has any views for or against capital punishment? That name is more important than those issues? Mr. Elliott: I think it is very important. Justice Moore: Is it more important than those issues? Mr. Elliott: I think yes.
The Delaware statute and the Jury Selection Plan both describe information which requires the dismissal of prospective jurors from a jury panel. 10 Del.C. § 4509(b); Jury Selection Plan § 10. Among other things, jurors will be automatically disqualified if they do not read or speak English, are mentally or physically infirm, or have been convicted of a felony.
We also observe that the National Center for State Courts is now preparing a manual on managing notorious cases, including issues of jury selection, jury security, and media and trial management. 17 Report of National Center for State Courts, back cover (Jan. 1990).
We observe, however, that one of the problems which the trial judge could have avoided was the sua sponte exercise of his discretion without first notifying the State and defendant of his intended action. That issue was mooted by the hearing held after Gannett intervened. The better course in the future would be for the trial judge to exercise his discretion on such an important matter only after giving the State and defendant an opportunity to be heard.
"Congress shall make no law ... abridging the freedom of speech, or of the press-” U.S. Const, amend. I.
The trial judge was also influenced by a third concern: the need to encourage juror participation. This concern, however, would appear to be immersed in, and result from, the promotion of juror privacy.
The names of jurors were public at William Penn’s trial in 1670 for inciting an unlawful assembly. For a summary of Penn’s account of the trial, see W. Forsyth, A History of Trial by Jury 337-44 (2d ed. 1878). The jury persisted in finding Penn guilty of no crime, despite the judge’s insistence that Penn was guilty. “ 'Here some of the jury seemed to buckle to the questions of the court; upon which Bushel, Hammond, and some others, opposed themselves, and said they allowed of no such word as an unlawful assembly in their verdict-’” Id. at 340. Finally, ”[t]he court ... commanded that every juror should distinctly answer to his name, and give in his separate verdict, which they unanimously did, saying. Not guilty ‘to the great satisfaction of the assembly.’ ” Id. at 343. Jurors’ names were also public at the 1735 trial of John Peter Zenger in the colony of New York. J. Alexander, A Brief History of the Case and Trial of John Peter Zenger 57-58 (S. Katz ed. 1963).
The majority apparently believes that this passage provides no evidence of the state of the common law. at the time of the Revolution because the jury was impanelled under a statutory provision (i.e., 3 Geo. II, c. 25). This is simply incorrect. English law, whether judge-made or statutory, became the common law of the American colonies when they declared their independence. Manoukian v. Tomasian, 237 F.2d 211 (1956), cert. denied, 352 U.S. 1026, 77 S.Ct. 588, 1 L.Ed.2d 596 (1957). Thus, the statute of which Blackstone writes was as much a part of American common law as, for example, the Statute of Frauds (29 Car. II, c. 3 (1677)). The relevance of examining English law lies in determining the background against which the Bill of Rights was enacted. The Supreme Court has found that the framers of the First Amendment wished to preserve the tradition of openness that the English had enjoyed. Richmond Newspapers, 448 U.S. at 589-90, 100 S.Ct. at 2834-35 (Brennan, J., concurring in the judgment). The historical record demonstrates that-public knowledge of the identity of jurors was a part of this tradition.
The Fourth Circuit found a strong tradition of openness in In re Baltimore Sun Co., 841 F.2d 74 (1988), although it granted access to jurors’ names on common law rather than First Amendment grounds.
Ala.Code § 12-16-57; Colo.Rev.Stat. § 13-71-106; Idaho Code § 2-206; Ind.Code Ann. § 33-4-5.5-7; Mass.Gen.Laws Ann. ch. 234, § 9; Mo.Rev.Stat. § 494.410; N.H.Rev.Stat.Ann. § 500-A:3; N.J.Stat.Ann. § 2A:70-3; N.C. Gen.Stat. § 9-4; N.D.Cent.Code § 27-09.1-05; 42 Pa.Cons.Stat.Ann. § 4521; Utah Code Ann. § 78-46-10; W.Va.Code § 52-1-5; Wis.Stat.Ann. § 756.04.
Ariz.Rev.Stat.Ann. § 21-312; Colo.Rev.Stat. § 13-71-110; ' 10 DelC. § 4513; Haw.Rev.Stat. § 612-15; Idaho Code § 2-210; Ky.Rev.Stat. Ann. §§ 29A.060, 29A.070; Me.Rev.Stat.Ann. tit. 14, § 1254-A; Md.Cts. & Jud.Proc.Code Ann. § 8-202; Mass.Gen.Laws Ann. ch. 234, § 18; Minn.Stat.Ann. § 593.42; Miss.Code Ann. § 13-5-32; Mont.Code Ann. § 3-15-503; NJ. Stat.Ann. § 2A:71-2; N.M.Stat.Ann. § 38-5-11; N.D.Cent.Code § 27-09.1-09; 42 Pa.Cons.Stat. Ann. § 4522; Utah Code Ann. § 78-46-13; W.Va.Code § 52-1-9. .Ala.Code § 12-16-74; Ariz.Rev.Stat.Ann. § 21-325; Idaho R.Civ.Proc. 47(e); Mont.Code Ann. § 3-15-507; N.M.Stat.Ann. § 38-5-13; Okla.Stat.Ann. tit. 22, § 594; 42 Pa.Cons.Stat. Ann. § 4524; Tenn.Code Ann. § 22-2-306; Texas Crim.Proc.Code Ann. § 35.01; Wyo.Stat. § 1-11-116. Two states, Indiana and Nebraska, have statutes that strictly control access to jurors’ names. However, it is not clear that the control extends to revealing names during voir dire and impanelling. Ind.Code Ann. § 33-4-5.5-12; Neb. Rev.Stat. § 25-1635.
The majority supplies two distinct formulations of the "logic” test, using them interchangeably. Initially, the majority asks "whether public access to jurors' names plays a significant positive role." Ante, at 749 (emphasis in original). In the next sentence, the majority asserts that " ‘the historical practice [must] play[ ] “an essential role" in the proper functioning of government.’” Id. (emphasis added) (quoting In re Reporters Comm., 773 F.2d at 1332). In re Reporters Committee predates Press-Enterprise II by almost a year, so one must conclude that the quoted language constitutes an impermissibly strict version of the "logic” test. Nevertheless, the majority decides that Gannett fails the logic test because “[i]t strains credulity to suggest that such an announcement was essential to the proper functioning of the trial." Ante, at 751. Obviously, there is a marked difference between a "significant positive role" and "an essential role.” It also strains credulity to believe that the entire judicial system would come tumbling down if an occasional trial or voir dire were closed under the conditions faced by the trial courts in Globe Newspaper and Press-Enterprise I. Nevertheless, the Supreme Court has found that openness itself plays a "significant positive role” in these situations, and that it should not be overridden without a finding of compelling need.
Indeed, Thomas Jefferson viewed jury service as the most important means by which the people participate in government. "Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making them.” Letter from Thomas Jefferson to L’Abbé Arnoud (July 19, 1789), reprinted in 7 T. Jefferson, The Writings of Thomas Jefferson 423 (A. Lipscomb & A. Bergh eds. 1905). Jefferson added, "However, it is best to have the people in all the three departments, where that is possible.” Id.
The majority suggests that Gannett has no standing to assert that openness improves the fairness of the judicial system. ‘'Gannett’s argument, that announcement of jurors’ names promotes fairness, confuses the defendant’s rights under the sixth amendment with the public’s rights under the first amendment.” Ante, at 750. This assertion is puzzling, since the belief that openness enhances fairness is drawn from the Supreme Court's First Amendment jurisprudence.
Moreover, the Supreme Court has recognized the role of openness in allowing the public to contradict the testimony of witnesses. See Richmond Newspapers, 448 U.S. at 570 & n. 8, 100 S.Ct. at 2823 & n. 8; Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608 (1979).
The majority concedes that the trial court applied the wrong standard in evaluating the threat to the defendant's fair trial rights. Assuming arguendo that Gannett had a right of access, the trial court found that there was a "reasonable probability or reasonable likelihood” of harm, expressly rejecting Press-Enterprise II’s higher standard. State v. Pennell, Del.Super., Cr.A. Nos. IN88-12-0051 to -0053, Gebelein, J. (Oct. 2, 1989) (ORDER). Had the majority of this Court found that a First Amendment right existed, the application of this flawed standard alone would have merited reversal. I also question the trial court’s decision to hold a hearing and provide the reasons for its Order after the restrictions on access had been imposed.
In this regard, the fact that all of the jurors in the Pennell trial stated that they would not object to having their names published is quite relevant. It may also explain why the majority did not rely upon juror privacy as a basis for restriction upon appeal.
Of course, if there were evidence that a defendant’s associates might try to threaten or injure jurors, a compelling reason for anonymity would exist. See, e.g., United States v. Scarfo, 3d Cir., 850 F.2d 1015 (1988), cert. denied, — U.S.-, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); United States v. Barnes, 2d Cir., 604 F.2d 121 (1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1988). However, the fact that anonymous juries have been impanelled despite Sixth Amendment objections raised by the defendant has little bearing on the question of whether jurors' names may be routinely withheld from the public. Compare Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) with Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (public has no Sixth Amendment right to attend trial, but does have a First Amendment right). Moreover, it should be stressed that neither the State, the trial judge, nor the majority has ever alleged that the safety of the Pennell jurors would be threatened by disclosure of their names.
See, e.g., Pichirallo & Rezendes, Jurors Found North Convincing, Wash. Post, May 6, 1989, at A-1, col. 5 (trial of Oliver North); Richardson, Hedgecock Jury Chosen Quickly, San Diego Union, Nov. 29, 1984, at A-1, col. 1 (trial of mayor on conspiracy and perjury charges); Wicker, Defense Questions Panel of 18, Greensboro Record, July 3, 1980, at El (trial of members of Ku Klux Klan on murder charges); Goshko, Hearst Panel Largely Middle-Class, Wash. Post, Feb. 5, 1976, at A-3, col. 1 (trial of Patricia Hearst).
STATE of Delaware v. Steven B. PENNELL, Defendant.
Superior Court of Delaware, New Castle County.
Submitted: Dec. 14, 1989.
Decided: March 2, 1990.
Peter N. Letang, Kathleen M. Jennings and Jeffrey M. Taschner, of the Dept, of Justice, Wilmington, for the State.
Eugene J. Maurer, Jr., Wilmington, for defendant.
Richard G. Elliott, Jr. and David L. Finger, of Richards, Layton & Finger, Wilmington, for intervenor Gannett Co.
[OPINION BY GEBELEIN, Judge. type=majority]
OPINION
GEBELEIN, Judge.
The defendant in this action had been charged with three counts of First Degree Murder, in what was alleged to be serial killings. The autopsies of victims revealed that in two cases the victim had been struck in the head with a cylindrical object, such as a hammer, had been strangled, had suffered ligature marks on the wrists and ankles, had suffered injuries to the nipples from a pinching-type tool, such as pliers or a vise-grip, and had present the residue of duet tape in the area of the face and hair. The third victim, though not beaten in the head or strangled, had suffered removal of a nipple and bruises to her buttocks (similar to those found on one of the other victims). Finally there was evidence that she, too, had been bound hand and foot at the time of her injuries.
Because of the nature of these crimes and other murders or disappearances for which the defendant was not charged, the case received both national and local press coverage during the investigation as well as during pretrial and trial proceedings. During the investigation, the local press published details of the crimes, speculated upon additional disappearances and gave warnings to women in the areas concerned. After the defendant’s arrest, additional coverage occurred in the local press. A national television show broadcast details of the crimes and ran footage of the defendant’s arrest. This coverage occurred upon local television as well.
Early in the prosecution of this case, Gannett sought access to search warrant applications and returns that had been sealed by Justice of the Peace Courts. With a limited exception, those files were opened to the press by this Court. The search warrant return deletion involving personal items of a sexual nature seized by the police from defendant’s residence was released after the trial.
At the time of the suppression hearing in this case, March, 1989, the Court had become increasingly sensitive to the amount of media coverage generated by this unique case. Consideration was given at that time to closure of the suppression hearing; but, since the trial was six months away and the Court anticipated that steps could be taken to provide an unbiased jury, the hearing was conducted in open Court. Additional daily news coverage followed. During the summer months, hearings were conducted relating to the evidentiary issues surrounding DNA identification, again daily media coverage followed. These hearings, due to the schedules of expert witnesses, continued to the eve of trial. All of these pretrial proceedings were conducted in an open fashion, guaranteeing the public and the commercial media free access to all that occurred in this proceeding.
On July 28, 1989, this Court entered an administrative order directing the Prothonotary to keep confidential the names of jurors subpoenaed for the petit jury panel in this capital murder case. The order was filed in the Prothonotary’s file on July 31, 1989. In September 1989, Gannett Co., Inc., publisher of the News Journal (hereinafter, “News Journal” or “Journal”), moved to intervene and to vacate the order. After an open hearing on these motions, the Court ruled from the bench granting the motion to intervene and denying, at that time, the intervenor’s motion to vacate the administrative order.
The bench decision was followed shortly by a written opinion which concluded that the jurors’ names were not public records to which the public had access; that the news media had no greater right of access than the public; and that the Court’s discretionary authority to invoke confidentiality was permitted by statute and by the Plan of the Superior Court of Delaware for the Random Selection of Grand and Petit Jurors. State v. Pennell, Del.Super., Cr. A. Nos. IN88-12-0051-0053, Gebelein, J., 1989 WL 167445 (Oct. 2, 1989).
The Court also ruled that the case did not involve First Amendment freedom of press issues because the media had no right of access to these records and the order was not a prior restraint order because it did not prohibit the media from publishing anything, but rather prohibited Court personnel from divulging information. Id.
In deciding to keep the names confidential, the Court weighed such factors as the defendant’s right to a fair trial, the pretrial publicity, the possibility of harassment of jurors, the possibility that the jury could become contaminated or disqualified, and the jurors’ privacy rights.
The decision was appealed by the News Journal to the Supreme Court of Delaware, which affirmed the decision to keep the jurors’ names confidential. Gannett Co., Inc. v. State, Del.Supr., 571 A.2d 735.
The trial has now concluded. The defendant was found guilty of two counts of first degree murder, for which he was sentenced to two consecutive life terms. The jury could not reach a decision on the third count of first degree murder. The convictions have been appealed and the State is continuing its investigation on the third count, as well as other disappearances potentially linked to this defendant.
The News Journal now moves this Court to vacate the July 28, 1989 order and release the jurors’ names. The Journal argues that the defendant’s right to a fair trial is no longer implicated because the trial has ended; that the jurors’ have no post-verdict privacy rights; and that the Journal has a right of access to the list of names.
This Court previously concluded that the media’s right of access is identical in scope to the rights of the general public. State v. Pennell, supra at 4. In that decision, the Court concluded that under the common law, which is codified as Delaware’s Freedom of Information Act (FOIA), and the statutory right of discretion to keep jurors’ names confidential, the records are not public records to which the public has access once the Court determines that the names should be confidential.
Because the media’s right of access is no greater than the public’s right of access, the names shall not be disclosed if “the Court determines that any or all of this should be kept confidential or its use limited in whole or in part....” 10 Del.C. § 4513(a). See, United States v. Gurney, 5th Cir., 558 F.2d 1202 (1977) reh’g denied, 562 F.2d 1257 (1977), cert. denied sub nom. Miami Herald Pub. Co. v. Krentzman, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978) (denying access to the names and addresses of jurors because the documents were not part of the public record).
Except for the decisions dealing with this specific case, there is no case law interpreting 10 Del.C. § 4513 and there is little legislative history. However, in enacting the Chapter on Jury Selection and Service, which includes that provision, the State legislature patterned the Delaware statutes after the Federal Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. State v. Robinson, Del.Super., 417 A.2d 953, 956, n. 1 (1980).
The Federal statute provides that in devising a written plan for selection of jurors the plan shall:
... fix the time when the names drawn from the qualified jury wheel shall be disclosed to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.
28 U.S.C.A. § 1863(b)(7) (West Supp.1989) (emphasis added).
Similarly, the Delaware statute permits confidentiality at the Court’s discretion and the Superior Court Jury Plan § 16 provides that the names may be kept confidential if it is “in the interest of justice.”
In requiring District Courts to adopt a plan with certain requirements, the Congress acted deliberately to provide the Courts with discretion. It said, “the plan approach is designed to provide a significant measure of flexibility so that localities may adjust the administration of jury selection to their particular needs.” H.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 1792, 1799 (hereinafter H.R. No. 1076). Likewise, the Delaware statutes on jury selection and service, which require a similar plan, were enacted to improve court efficiency. See, S.B. 46, 134th Gen. Assembly, Synopsis (Jan. 28, 1987) (amended and adopted without changing this provision, Feb. 17, 1987).
Specifically regarding the federal provision on release of jurors’ names, the Congress said that the section allows each district to provide for disclosure of names, permitting the present diversity of practice to be continued. H.R. 1076 at 1801. It recognized that some courts keep jurors names confidential and other courts routinely publicize the names. Id.
Besides recognizing and allowing courts continued use of discretion in publicizing jurors’ names, the Congress also recognized the administrative burden of preparing juror lists and noted that disclosure was not permitted routinely. H.R. No. 100-889, 66, 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 5982, 6026 (hereinafter H.R. No. 100-889).
The Federal statute has now codified the common law practice of allowing Courts to determine if a list is required and provides that the list will not be disclosed except pursuant to the jury plan or for challenging compliance with selection procedures or after the master jury wheel is emptied and refilled. 28 U.S.C.A. § 1864(a). Similarly, the Delaware statutes and jury, plan leave disclosure decisions to the Court and do not permit disclosure of records except in accordance with the jury plan or as needed to challenge compliance. 10 Del.C. § 4513(a) and (b).
In using its discretion to keep the names confidential, the Court cannot make its decision arbitrarily. United States v. Tucker, C.A. Ga., 526 F.2d 279 (1976) cert. den., 425 U.S. 958, 96 S.Ct. 1738, 48 L.Ed.2d 203 (1976); United States v. Stokes, C.A. Ga., 506 F.2d 771 (1975) (although both of these cases related to situations where the defendant was entitled to access to the jury list, they noted that the standard of review for 28 U.S.C. § 1863(b)(7) was whether the decision to withhold the names was arbitrary). Similarly, such discretionary decisions in Delaware cannot be arbitrary, without proper consideration of the facts and the law pertaining to the matter. Here, the law states that the jurors’ names may be kept confidential if the Court so determines, 10 Del. C. § 4513(a), and if it is in the interest of justice. Super.Ct. Jury Plan § 16. Neither the Code nor the jury plan establish a particular time for the names to be released. This is consistent with the Federal law which recognizes that the time frame should be determined by the Court. It also is consistent with preventing an arbitrary decision because it allows the Court to consider the pertinent facts of each case to determine when or if the names should be released.
In this case, although the trial has concluded, the Court considers some of the same law and factors considered in its previous opinion. Even if the defendant’s right to a fair trial is no longer implicated, the Court must recognize that jurors, who are members of the public, have privacy concerns that the Court will weigh. State v. Pennell, supra at 30.
It is important that the public knows that their privacy may be respected so that they will readily participate when they are subpoenaed by the Court to fulfill their obligation. The public does not seek this duty; the Court demands it subject to contempt of court proceedings ....
Id.
This duty and service of the highest obligation of citizenship should be an interesting and rewarding experience to be looked back on with interest and pleasant recollection by those who are privileged to be selected. United States v. Thomas, 2d Cir., 757 F.2d 1359, 1365, n. 1 (1985) (affirming decision to empanel anonymous jury).
The mere fact that a trial has ended does not mean that the criminal justice system should disregard any rights of these members of the public. If these rights are disregarded, the justice system can only add to the difficulties already experienced in getting prospective jurors to participate in the system, especially in a trial that is lurid and highly publicized.
The News Journal states in its motion that jurors have no post-verdict privacy rights. This Court absolutely rejects this arrogant conclusion. First, the Delaware statute and the Superior Court Jury Plan establish no time frame in which the Court must release the names. Second, the history of jury voir dire in Delaware has been that while the jurors’ names have been routinely announced, their privacy has been respected by having their answers to publicly asked questions taken at side bar, often with no record preserved of their answers. The historical fact is that in capital cases, many times some or all of the individual voir dire has been conducted in a jury room, in camera. State v. Pennell, supra at 18, n. 6. Thus, Delaware has routinely recognized a juror’s right to privacy as to personal information of a sensitive nature. Third, the legislative history of the Federal statute, which is similar to Delaware’s, recognized that localities must have a significant measure of flexibility to adjust procedures to their particular needs. H.R. No. 1076, supra at 1799. By enacting legislation patterned after that statute, the State legislature created a similar measure of flexibility for this Court. Fourth, the United States Supreme Court has expressly recognized such rights in Press-Enterprise Co. v. Super.Ct. of Co., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (hereinafter, Press-Enterprise I).
The News Journal cites one federal district court’s opinion that “the court cannot assert a juror’s privacy post-verdict.” United States v. Franklin, N.D.Ind., 546 F.Supp. 1133, 1144 (1982). In Franklin, the defendant was charged with violating the civil rights of another man by attempting to shoot him. The trial involved some unique security problems to the court, its personnel, witnesses and the defendant himself. There was much national and local media attention. After a verdict of not guilty was returned, the Court advised the jury it had enjoined the participants and “all others” from attempting to interrogate the jurors about their deliberations or the reason for their verdict.
The media filed a motion to vacate the order and a writ of mandamus. While modifying the order to exclude the provision that enjoined “all others” from interrogating the jury about its deliberations, the Court said that the trial court “has the power to bring post-verdict interrogation of jurors under his control.” Franklin at 1139 (citing Miller v. United States, 2d Cir., 403 F.2d 77 (1968)). While recognizing that it is “a general proposition [that] the Court cannot assert a juror’s privacy post-verdict,” Franklin at 1144, the Court, in its modified order provided that, “It shall be and remains the exclusive private decision of the members of this jury panel as to whether or not they desire to be interviewed regarding this trial by members of the press and the public.” Id. at 1145.
In rendering its decision, the Court said that a major premise for its decision was that the defendant was acquitted. It said that whether the reasoning or result would apply to a criminal case where there was a conviction was reserved for another time. Id. at 1138.
In addition to the fact that the Court did not address the issue of what would occur if there had not been an acquittal, the Court based its decision solely on the impact such interrogation would have on jury deliberations and the authority of the Court to prevent post-verdict interrogation. It did not attempt to assert the jurors’ right of privacy post-verdict. In fact, it said it “had absolutely no intention of attempting to do so.” Id. at 1144.
Since Franklin, a similar order was imposed on the media and the public. United States v. Harrelson, 5th Cir., 713 F.2d 1114 (1983) cert. den. sub nom. El Paso Times, Inc. v. United States Dist. Ct. for the Western Dist. of Texas, 465 U.S. 1041, 104 S.Ct. 1318, 79 L.Ed.2d 714 (1984). In Harrelson, the Court ordered that all persons were prohibited from approaching, questioning or interviewing any juror, or his relatives, friends or associates, concerning the jury’s deliberations, except with leave of the court granted upon good cause shown. The court found that the jurors, even after completing their duty, are entitled to privacy and protection against harassment. Id. at 1118. The Appeals Court said that the trial court judge had not abused his discretion by ordering that "no person could make repeated requests for interviews or questioning after a juror has expressed a desire not be interviewed.” It said that “common sense tells us that a juror who has once indicated a desire to be let alone and to put the matter of his jury service behind him by declining to be interviewed regarding it is unlikely to change his mind; and if he does, he is always free to initiate an interview.” Id. The Circuit Court rationale is far more persuasive than that of the District Court Judge in Franklin.
Here, the jurors during voir dire were asked if having their names published by the press would preclude their ability to be fair. At that time, some of the jurors indicated that they did object to the publication of their names, but that they could be impartial. At the conclusion of the lengthy trial, the jurors, having been exposed to the constant attendance of the media, unanimously told this Court that they did not wish the press to have access to their names. The News Journal also reported that when the jurors were released and escorted outside that the jurors declined to comment on the case. One alternate juror did speak, but declined to give his name. The Court notes the jurors’ response to its inquiry and to the media’s questions after the verdict as indicating that the jurors do not wish to be interviewed.
While understanding the jurors’ request for privacy, the Court must also consider the right of access of the press. It is well established that the press has no greater right than the public. The press and all others are free to report whatever takes place in the courtroom, but the particulars of jury deliberation are not available to the public or the press. Harrelson at 1118. See also, Gurney, supra at 1210-11. The reason for not making deliberations public is that, “Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.” Harrelson, supra (citing Clark v. United States, 289 U.S. 1, 13, 53 S.Ct. 465, 468, 77 L.Ed. 993 (1933)).
In addition to the above concerns, the Court must also consider other impacts on the jurors’ privacy that such release might have.
In the Pennell trial, the Court deviated from its routine procedure in capital cases and rather than announcing the names and then proceeding with some or all of the individual voir dire in camera, it withheld solely the names and juror questionnaires (with personal data) and allowed a completely open voir dire. In so doing, the jurors were asked personal questions ranging from educational background to positions on the death penalty. The press was free to print these answers. Some of the answers, if coupled with the names, could cause the jurors pain and embarrassment. For example, one juror was in a wheel chair and the Court had to inquire into his medical condition and how it might affect his ability to sit for long periods of time; one juror testified that his brother was accused of burglary and his case was pending in another state; another juror testified that his brother had been picked up for drunken driving.
These are personal matters about which the Court was required to inquire; and, that the jurors were required to answer, in order to provide the parties an opportunity to find a group of unbiased citizens to serve as jurors.
The United States Supreme Court has held that even when the Court determines that voir dire should be closed, it can satisfy the constitutional requirements of access to proceedings while safeguarding the juror’s valid privacy interests, interests that the Journal argues do not exist. Press-Enterprise I at 512, 104 S.Ct. at 825. In that opinion, the Court noted that one means to achieve this balance of rights would be to withhold a juror’s name to protect the person from embarrassment. Id. at 513, 104 S.Ct. at 825.
Further, while the New Journal argues that because the case has ended, the defendant’s rights are no longer implicated, there is authority which indicates that the status of the case should be weighed in determining if information should be released. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). In Nixon, the Court upheld a decision precluding release of certain tapes to the media, holding that the common law right of access is one best left to the sound discretion of the trial court, to be exercised in light of the relevant facts and circumstances. It noted that the lower court had as a principal reason for refusing to release the tapes, fairness to the defendants, who were appealing their convictions. 435 U.S. at 602, n. 14, 98 S.Ct. at 1314, n. 14, 55 L.Ed.2d at 582, n. 14. In that case, the appeals were resolved before the Supreme Court made its decision. Here, the appeal is pending. Also, in this case, the jury did not acquit the defendant on one count of first degree murder; it could not reach a decision. The investigation into that count is continuing. Likewise, other charges may be initiated against this defendant. See, United States v. Doherty, 675 F.Supp. 719, 724 (1987) (Sixth Amendment rights of the defendant are still vitally implicated).
The Court must also consider the potential for harassment that the jurors may experience if the names are released. See, State v. Pennell, supra, and cases cited therein; Press-Enterprise I, supra; Harrelson at 1118 (jurors, even after completing their duty, are entitled to privacy and to protection against harassment) (citing In re Express-News Corp., 695 F.2d at 810); Franklin at 1139 (jurors ought not be subject to harassment) (citing United States v. Crosby, 2d Cir., 294 F.2d 928, 950 (1961), cert. denied sub nom. Mittleman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). On December 27, 1989, this Court held an evidentiary hearing on this motion. At that hearing a series of newspaper articles about the Pennell trial were entered as exhibits by the Court. Those reports show that the Journal referred to one juror in the case as looking “more like a mad killer than Pennell;” that a boyfriend of a woman whose disappearance had been linked to Pennell although he was not indicted on that count, had threatened that he had a gun and would come to the Courthouse; that the Journal had interviewed jurors whose names were released in another capital murder case occurring at approximately the same time; and that one juror in that case had received several phone calls, on the day the verdict was returned, from friends astonished by the verdict. The attorney for Mr. Pennell testified that he had received threatening phone calls during the trial.
Other articles, not included at that hearing, reflect that friends and families of the victim whom Pennell was not convicted of killing are unhappy with the verdict. In one particular instance a family member of one victim whom Pennell was not charged with killing ran his own investigation of the crime, attended the court sessions everyday and had taken the victim’s son to the prison, courthouse, and other pertinent sites. That relative has expressed dissatisfaction with the jury’s verdict, being quoted as saying, “I know he’s guilty. I don’t need 12 people up there going over things to let me know. He’s guilty for five, not two.” News Journal, “Killer’s victims leave legacy of grief and anger”, Nov. 29, 1989.
This Court has previously concluded that this case is not a First Amendment freedom of access ease because the order is merely an administrative order, directing the acts of its own personnel pursuant to statutory authority. Further, it is not a prior restraint order prohibiting the publication of anything. Gannett Co., Inc. v. State, supra; State v. Pennell, supra; Gurney, supra. The withholding of jurors’ names is not a form of closure of proceedings, as the News Journal argues.
The United States Supreme Court in Press-Enterprise I, supra, at 464 U.S. at 512, 104 S.Ct. at 825 specifically noted that in an appropriate case jurors’ names could be withheld “to protect the person from embarrassment.” The Chief Justice speaking for the Court questioned why the trial court did not “consider whether he could disclose the substance of the sensitive answers while preserving the anonymity of the jurors involved.” Id. at 513, 104 S.Ct. at 825. Finally, as Justice Marshall noted in his concurring opinion:
In those cases where a closure order is imposed, the constitutionally preferable method for reconciling the First Amendment interests of the public and the press with the legitimate privacy interests of jurors and the interests of defendants in fair trials is to redact transcripts in such a way as to preserve the anonymity of jurors while disclosing the substance of their responses.
Press-Enterprise, supra, 464 U.S. at 521, 104 S.Ct. at 829.
Thus, the test in Press-Enterprise I is that, “Where the State attempts to deny the right of access in order to inhibit disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.”
Assuming that the Press-Enterprise standard would apply, the interests sought to be protected here have already been set forth. The State has an interest in protecting juror privacy, even after the trial — to encourage juror honesty in the future— that is co-extensive with the jurors’ own privacy interests. Press-Enterprise I, supra at 517, 104 S.Ct. at 827 (Blackmun, J. concurring). This State’s interests, which concern the protection of juror deliberations and the possibility of harassment or embarrassment have been discussed above. Likewise, the Court has a compelling interest in preserving a jury system where jurors will willingly serve.
The Court also seeks to protect the rights that the defendant still has, which include not only his rights on appeal, but the protection of his rights in any subsequent trial. Press-Enterprise I, supra; United States v. Doherty, 675 F.Supp. 719, 724 (1987) (even though the trial of the specific individuals accused is over, the underpinnings of the jury system and the Sixth Amendment rights of the defendants — especially of the defendant who was acquitted — are still vitally implicated).
The pretrial order in this case had been narrowly tailored to protect these interests. More restrictive means were considered by the Court and rejected. The Court could have issued an order similar to those cited above that absolutely preclude any persons from interviewing the jurors, their relatives, friends and associates post-verdict and subject them to penalties if they attempt to do so. See, Harrelson, supra; see also, Annotation, Validity and Effect of Restraints on Postverdict Communication Between News Media and Jurors in Federal Case, 93 A.L.R. 415 (1989).
The Journal has indicated that it is concerned that bias of jurors will not be reported if the names are not published. By allowing a completely open voir dire, which the press and the public attended daily, and by not prohibiting the media from photographing the jurors, the public and the press had the opportunity to observe the jurors and report on any biases uncovered. The media has advanced no other reason for wishing to publish the names; in fact, at oral argument it was suggested that the names might not even be published. It is curious to note that the role of the press in assuring a defendant an unbiased jury by publishing jurors’ names and, thus, involving the public at large in jury selection attaches only in sensational murder trials. In all other criminal trials apparently such publication of jurors’ names is unnecessary to assure unbiased jurors.
This Court concludes that it has the power in appropriate cases to withhold jurors’ names post-verdict. For example, in a case where community reaction to the verdict is at a fever pitch; or, where community tensions are at an extremely high level, the release of jurors’ names could prevent the jurors’ return to their communities without severe harassment. In that case, the Court must be able to act to protect the jurors, and therefore, the jury system. Where the jury has actually been threatened as well as in many organized crime cases, the post-trial release of jurors’ names could be physically dangerous to them. The Court again must be free to act to protect those jurors and the jury system.
In this case, despite the sensational publicity, the Court finds that a less restrictive act than continued confidentiality can protect the jurors’ legitimate privacy interests. In this ease, it is unlikely that the community will seek to harass or harm the jurors at this time. Likewise, the jurors’ answers to voir dire questions including many of an extremely personal nature were made while identified by number. The jurors’ names alone do not provide a connection to those sensitive or embarrassing answers. An alphabetical listing of the names of the eighteen jurors and alternates will be placed in the file in the Prothonotary’s Office. The juror qualification forms and all records relating to the numbers assigned to individual jurors will not be disclosed.
IT IS SO ORDERED.
The facts of this case, the pretrial publicity surrounding it and the full text of the order are detailed in Gannett Co., Inc. v. State, Del.Supr., 571 A.2d 735 (1989). Subsequent publicity included daily newspaper coverage and almost daily television and radio coverage. In addition, the case was the subject of several television special reports. The Courthouse was covered on almost a daily basis by live television and trial participants were routinely photographed going to lunch as well as arriving or leaving the Courthouse. The trial has been called the most sensational in Delaware history by the local news media.
Ten Del.C. § 4513(a) provides that, "The names of persons summoned for jury service shall be disclosed to the public and the contents of jury qualification forms completed by them shall be made available to the parties unless the Court determines that any or all of this information should be kept confidential or its use limited in whole or in part in any case or cases.” The Plan of the Superior Court of Delaware for the Random Selection of Grand and Petit Jurors § 16 incorporates the basic language of this statute.
In particular the Court weighed the dangers of jury contamination or disqualification in the light of the experiences in State v. Joyce L. Lynch, Del.Super., Cr. A. Nos. IK88-01-0040-0047, 1989 WL 64149 Ridgely, J., where a juror had to be excused because of the impact of a News Journal article: (Juror No. 11 entered chambers.) THE COURT: Come in, Mr. B.. Have a seat, please. BY THE COURT: Q. As you may know there has been a publication by the News Journal paper about information on the jury. I wanted to read to you a portion of the article as it relates to you, and then I will have some questions for you. It reads as follows, “R.B., 32, Harrington. Tall balding and thin. Has a three-year-old son and two-month-old daughter. He said that wouldn’t affect his impartiality given the closeness of the ages of his children to those of the Gibsons." Will this publication affect your ability to be a fair and impartial juror in this case? A. Not to my knowledge, no. ****** JUROR NO. 11: If it would be possible I would like to go on record saying I am upset by it, in the context that my wife is afraid of getting crank phone calls and things of that nature. BY THE COURT: Q. Do you believe this would have any impact upon your ability to serve as a juror in this case? A. No, not really because we don’t talk about it at home. This is the only time that she has mentioned the fact that she is upset by it. Q. Because of the feelings that your wife has do you seek to be excused as a juror in this case? A. If it is possible, yes. ****** MR. WERB: Your Honor, it would be defense counsel’s position that based on the candor of the remarks of Mr. B. that there is some serious concern with his ability to continue as a juror in this case. He has recited to the Court the concern, frustration and emotional upset his wife has experienced as a result of reading the contents of the article and in addition has expressed concern over the possibility of receiving crank phone calls, et cetera. When questioned about whether or not he desired to continue in his capacity as a juror in this case he appeared without reluctance to indicate that if he could be excused that would be his desire and my concern with his tendered service as a juror in this case would lead one to the result that he could potentially be influenced or swayed by public opinion and sentiment as well as the feelings of his wife. Two, there could be a possibility of a quick verdict or acting quickly to arrive at a verdict in this case so as to get this matter over and done with. I think in light of his responses it would be appropriate to have him excused from further service in this case. MR. WHARTON: Your Honor, we really have no position with respect to his request. However, if the Court is inclined to excuse him I would suggest that the Court — I guess if he is excused he would be leaving. I don’t know if he has any belongings to collect but if he has to return to the jury room he should be admonished not to discuss his concerns with anyone else. (Juror No. 11 entered chambers.) THE COURT: Have a seat, Mr. B.. JUROR NO. 11: Okay. THE COURT: Do you have any belongings with you in the jury room today: JUROR NO. 11: An umbrella. THE COURT: All right. I am going to excuse you from further jury service in this case. I am going to admonish you not to discuss our conversations with any fellow jurors. You may go to the jury room, retrieve your umbrella and then leave the courthouse.
The Delaware Supreme Court opinion concluded that no qualified First Amendment right of access exists in this case. Gannett, supra, 571 A.2d at 744.
29 Del.C. §§ 10001-10005.
10 Del.C. § 4513.
In amending 28 U.S.C. 1864(a) to exclude the requirement that the clerk or jury commission prepare an alphabetical juror list from the master jury wheel, the Congress said, "Many Courts report that no apparent good is served by the mandatory preparation of this list, in that it is rarely referred to and in fact is not permitted to be routinely disclosed. Furthermore, the preparation of this list is extremely burdensome, especially in those automated courts in which the master wheel itself is not alphabetized.” H.R. No. 100-889 at 6026.
Delaware, which has a small population base from which to draw jurors, is already experiencing difficulty in getting members of the community to participate. For example, in the Pennell case, more than 600 people were subpoenaed and less than 150 people reported. Of these, 106 prospective jurors were subjected to individual voir dire before a jury of twelve with six alternates could be empaneled. The Prothonotary’s Office stated that this percentage of participation was not uncommon.
As noted in the Affidavit of the Chief Bailiff of the Superior Court, a Court's exhibit in this case.
News Journal, Nov. 29, 1989.
In reporting on this, the News Journal reported that no explanation was given for why he was in a wheelchair.
The article indicates that the press talked to one juror at least twice on the same day. It does not indicate who initiated the interview either time.
In such cases it is possible that fear of such results and the knowledge that their names would be disclosed could impact on the jurors' ability to deliberate fairly. As noted in Gannett, supra, 571 A.2d at p. 756, n. 3, Justice Walsh's dissent: The names of jurors were public at William Penn’s trial in 1670 for inciting an unlawful assembly. For a summary of Penn's account of the trial, see W. Forsyth, A History of Trial by Jury 337-44 (2d ed. 1878). The jury persisted in finding Penn guilty of no crime, despite the judge's insistence that Penn was guilty. "'Here some of the jury seemed to buckle to the questions of the court; upon which Bushel, Hammond, and some others, opposed assembly in their verdict....”’ Id. at 340. Finally, "[t]he court ... commanded that every juror should distinctly answer to his name, and give in his separate verdict, which they unanimously did, saying, Not guilty ‘to the great satisfaction of the assembly.’ ” Id. at 343. In the William Penn trial, the publication of the jurors' names was ordered by the Court in an individual polling of their verdict in an attempt to coerce a “guilty verdict” — the very type of jury pressure that the American system of justice seeks to prevent. "The notions of a jury of one’s peers and of an impartial jury also developed during this period, but as exemplified in William Penn’s trial, they were not quite what we consider today.” V. Hans and N. Vidmar, Judging the Jury 29 (Plenum, 1986). In fact, at the time of the William Penn trial, jurors were usually selected by the Sheriff because of their bias toward the Crown. Id. at 29. Thus, while publication of jurors’ names as a coercive force was recognized by English Common law, it has no place in the American jury system.
Steven B. PENNELL, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Submitted: Oct. 16, 1991.
Decided: Dec. 18, 1991.
Eugene J. Maurer, Jr., Wilmington, for appellant.
Kathleen M. Jennings and Peter N. Letang, Dept, of Justice, Wilmington, for the State.
Before CHRISTIE, C.J., MOORE and WALSH, JJ.
[OPINION BY MOORE, Justice. type=majority]
MOORE, Justice.
The appellant, Steven B. Pennell (“Pennell”), was indicted and tried on three counts of first degree murder. The State claimed that these were “serial” murders. Pennell was convicted on two of those counts, but the jury was unable to reach a verdict on the third count. The jury imposed two life sentences on the defendant.
Pennell claims that: (a) the trial court abused its discretion in denying his motion for a mistrial based upon remarks made by the prosecutor in her final summation to the jury; (b) the trial court abused its discretion by admitting evidence concerning the disappearance of a prostitute in the area where Pennell’s victims were allegedly abducted; (c) the search of Pennell’s van, and the seizure of blue fibers therefrom, violated the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the Delaware Constitution regarding unreasonable searches and seizures; (d) the trial court abused its discretion in allowing an F.B.I. Agent to testify as an expert on serial murders; and (e) there was insufficient evidence to support the conviction for first degree murder for the death of one of the victims, Shirley Ellis.
We find no merit to Pennell’s claims and affirm his convictions.
I.
On November 29, 1987, a woman’s body was discovered and identified as Shirley Ellis (“Ellis”). She was known by police to be a prostitute. At the scene, the police found the victim wearing a pair of aqua blue pants. There was black duct tape in her hair. Ellis’ injuries were extensive, including ligature strangulation marks around her neck, numerous skull lacerations consistent with being struck by a hammer, wrist injuries suggestive of binding and pattern bruising to the left breast and nipple. The Medical Examiner determined that Ellis’ death was caused by strangulation and blunt force head trauma.
On June 29,1988, the nude body of Catherine DiMauro (“DiMauro”), a known prostitute, was discovered at a construction site. Numerous blue fibers were collected from her body and two red fibers were removed from her face. In addition, a piece of duct tape was removed from Di-Mauro’s hair. The injuries to DiMauro were very similar to those suffered by Ellis. Moreover, the Medical Examiner determined that DiMauro’s death was caused by multiple blunt force injuries and strangulation — the identical causes of Ellis’ death.
As a consequence of the Ellis and Di-Mauro murders, in July, 1988 the police began a decoy operation along a highway corridor which the victims were known to frequent. As part of the operation, female police officers wearing hidden microphones were dressed as prostitutes and engaged in conversations with men who stopped for them. The officers were not permitted to enter the vehicles of these men.
On August 22, 1988, another prostitute, Margaret Finner (“Finner”), was reported missing. She was last seen entering a blue van, which was described as having no side window and rounded headlights. This information was incorporated by police into their investigation and decoy operation. Finner was eventually found murdered, but there was insufficient evidence linking Pennell to the crime.
On September 14, 1988, Officer Renee Lano (“Lano”) was working as a decoy along Route 40 when she observed a blue van cruise past her seven times. Officer Lano called in the tag number of the van and learned that it was registered to Pennell. After Lano moved to a darker area of Route 40, the blue van stopped for her. The driver motioned for Lano to enter the van. Lano approached, but did not enter the van. She spoke with the driver, who was later identified as Pennell. During the conversation Lano became suspicious of Pennell and noticed that the interior of his van was covered with blue carpeting. Aware that blue fibers were found covering DiMauro’s body, Lano surreptitiously removed some blue fibers from the door jamb of Pennell’s van.
On September 20, 1988, the body of a young woman was discovered on rocks by the Chesapeake and Delaware Canal. The body was identified as Michelle Gordon, known to police as a prostitute. The Medical Examiner concluded that Gordon was the victim of a homicide, but because her body had been submerged in water, no determination could be made as to the cause of death. Injuries inflicted on Gordon’s body were very similar to those found on both Ellis and DiMauro.
The police began surveillance of the defendant. Pennell was observed repeatedly cruising the same area of the highway corridor that was the site of the decoy. On September 30,1988, the police stopped Pennell for a traffic offense. A search of his van uncovered a blood stain. Blue fibers and swatches of red cloth were taken from the van. Search warrants were subsequently issued for Pennell’s trailer, shed, vehicles and person. Pursuant to these warrants, police seized a buck knife which was in the defendant’s pocket, eight pairs of pliers, a bag of unused flexicuffs and two rolls of duct tape.
Pennell was charged with first degree murder for the deaths of Shirley Ellis, Catherine DiMauro and Michelle Gordon. The defense, essentially, was one of alibi. The trial began on September 26,1989, and lasted over two months. As part of its case in chief, regarding the “serial” aspect of the murders, the State was permitted to introduce evidence of the disappearance of a woman named Margaret Finner. The jury, however, did not know Pinner’s name or that she was eventually found murdered. Agent John Douglas, Director of the F.B.L’s Behavioral Sciences Unit, testified as an expert in the area of serial murders. After reviewing the deaths of Ellis, DiMauro and Gordon, he opined that they were all committed by the same person.
During the State’s closing arguments the prosecutor attacked the defendant’s credibility, stood in front of him and said:
Mr. Maurer told you in the opening statement in their cases, many, many weeks ago, that he stood behind his client. Ladies and Gentlemen, I stand in front of him and I say, Steven Brian Pennell, you murdered Shirley Ellis, you murdered Cathy DiMauro, and you murdered Michelle Gordon ... Ladies and Gentlemen, please find him guilty.
Defense counsel immediately objected to this statement and moved for a mistrial on the grounds of prosecutorial misconduct. The court denied the request for a mistrial, struck the statement from the record, and instructed the jury to totally disregard the prosecutor’s comments.
After lengthy deliberations the jury returned its guilty verdicts as to the deaths of Ellis and DiMauro.
II.
Pennell first complains of the prosecutor’s interjection of her personal beliefs as to his guilt. Clearly, those comments, as the State readily concedes, were inappropriate. We do not, however, believe that they adversely affected the defendant’s right to a fair trial.
All parties, and the Court, agree that arguments in the first person should be avoided. Section 5.8(b) of the ABA Standards, the Prosecution and Defense Functions, states that “[i]t is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” This Court has adopted that standard. See Hughes v. State, Del.Supr., 437 A.2d 559, 567 (1981). The prosecutor’s expression of a personal belief concerning the guilt of the accused may convey the impression that there is evidence not presented to the jury, but known to the prosecutor, which supports the charges against the defendant. United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985).
The State suggests that the prosecutor’s comments were an “invited reply” to allegedly improper comments made by defense counsel in his opening statement that “I stand behind” the defendant. The “invited reply” or “invited response” doctrine is utilized in situations where an improper defense argument provokes a prosecutor to respond likewise. See Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). Because we find that Pennell was not prejudiced by the prosecutor’s remarks, which were promptly corrected by the trial judge, we need not decide whether they were an invited response to defense counsel’s inappropriately phrased opening remarks. However, we note that the improper defense comment was not objected to and occurred over two months before the State’s summation. Moreover, we recognize that improper arguments by both the prosecution and defense counsel do not make for a right result. See United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985); Michael v. State, Del.Supr., 529 A.2d 752, 762-64 (1987).
Once a prosecutor’s remarks are found to be improper, the inquiry does not end. The Court must consider whether the remark prejudicially affected the defendant’s right to a fair trial. Sexton v. State, Del.Supr., 397 A.2d 540, 544 (1979). The three factors to be considered in making this determination are: 1) the closeness of the case, 2) the centrality of the issue, and 3) the steps taken to mitigate the effects of the error. Hughes v. State, 437 A.2d at 571 (quoting Dyson v. U.S., D.C.App., 418 A.2d 127, 132 (1980)).
Applying this standard convinces us that Pennell was not denied his right to a fair trial. The case against Pennell was not close. Concerning the DiMauro murder, there was substantial physical and circumstantial evidence linking Pennell to the crime. DNA and fiber testing inextricably tied the defendant to DiMauro. In addition, other evidence such as the duct tape and pliers were found in Pennell’s possession. The evidence linking Pennell to the Ellis murder also was substantial, even though Ellis was murdered almost a year prior to Pennell’s arrest. A thread, matching the pants Ellis was wearing when her body was found, was discovered in the defendant’s buck knife, and the duct tape found in her hair was of a special type used by those in Pennell’s occupation. Moreover, an expert witness opined that, due to the extremely unusual nature of the injuries inflicted upon the victims, they were all murdered by the same person. This was strong evidence which tied Pennell to Ellis’ murder.
Pennell relies upon Hughes v. State, Del.Supr., 437 A.2d 559 (1981), a case in which this Court reversed a conviction based upon a prosecutor’s comments. However, Hughes is clearly distinguishable from the case at bar. In Hughes, the prosecution repeatedly referred to the defendant as a “liar” in a case “based entirely on circumstantial evidence.” Id. at 571 (emphasis added). Moreover, the trial judge in Hughes did not give a curative instruction to the jury.
Turning to the centrality of the issue affected by the comment, it is true that the prosecutor’s comment directly attacked Pennell's credibility in connection with his alibi defense. However, centrality is also affected by the length of the proceeding. Pennell’s trial lasted over two months. Pennell also contends that the prosecutor’s statement was compounded by the fact that it came at the very end of the trial. While that is correct, the jury was immediately instructed to ignore the prosecutor’s comment.
In mitigating the error, the trial judge gave the following curative instruction:
Ladies and Gentlemen, the last comment by the prosecutor was improper, in using a personal opinion or statement to you, and as such, is stricken from the record. You should totally disregard the last— the last comments that were made and the manner in which they were made.
This Court has repeatedly held that even when prejudicial error is committed, it will usually be cured by the trial judge’s instruction to the jury to disregard the remarks. See Kornbluth v. State, Del.Supr., 580 A.2d 556, 561 (1990); Brokenbrough v. State, Del.Supr., 522 A.2d 851, 857 (1987); Diaz v. State, Del.Supr., 508 A.2d 861, 866 (1986). We are satisfied that the prosecutor’s error was immediately and adequately cured by the trial judge, which under all the circumstances rendered the error harmless.
III.
Pennell next contends that the trial court abused its discretion by admitting evidence of Finner’s disappearance. Specifically, the defendant argues that the evidence constituted impermissible “other crimes” evidence under Delaware Rule of Evidence 404(b) (“Rule 404(b)”).
As part of its case in chief, the State sought to present evidence of the disappearance of Margaret Finner. The State wanted to call Finner’s father, who would testify that she had disappeared, and E.T., who would testify that he saw Finner get into a blue van with no side windows and rounded headlights. This information was incorporated by the police into their investigation and led to Officer Lano’s contact with Pennell in a van matching that description.
The defense objected, claiming that such evidence would contravene Rule 404(b) by inferring that another crime had been committed by the defendant. The State contended that the evidence was relevant to show that the police were looking for a blue van with no side windows and rounded headlights. The State claimed this evidence was known by Officer Laño and was relevant in proving why she engaged the driver of a van matching that description in conversation.
The trial court agreed that the evidence was relevant, but disagreed with the State as to how the evidence should be presented. In admitting the evidence through a detective, the State was warned to “be very careful to avoid the interjection into this case of another potential criminal act.” Rule 404(b) provides that:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Of course, to trigger Rule 404(b), the State must attempt to introduce evidence of another crime, wrong or act committed by the defendant for which the defendant was not then on trial. If the detective’s testimony was offered to show, or did show, another crime, wrong or act committed by Pennell, it clearly would have been inadmissible under rule 404(b). See Getz v. State, Del.Supr., 538 A.2d 726 (1988). The State concedes this point. However, the evidence presented was not offered to show, nor did it show, that another crime was committed by Pennell. The testimony given was that a woman working as a prostitute was seen entering a blue van, that she did not return when expected, and that this information was used by the police in their investigation. The trial court admitted the evidence to explain why the police conducted the investigation as they did, and what information they had while conducting the investigation.
Moreover, the trial court took pains to insure that the jury did not learn any information from which it could infer that Pennell had committed another crime. The jury did not know Finner’s name or the fact that she was found murdered. The jury was not even aware that she never returned. They simply knew she did not return when expected. The fact that Finner’s disappearance was incorporated into the overall investigation simply shows that this was evidence the police had when undertaking the decoy operation. This was the purpose for which the evidence was admitted, and does not amount to “other crimes” evidence subject to Rule 404(b).
Since the proffered evidence was admissible under Rule 404(b), its admission is governed by the general relevancy Rules of Evidence. Del.R.Evid. 401, 402, 403. Under the foregoing circumstances, the evidence was clearly relevant to prove what information the police used in their investigation which led to the defendant’s arrest. It is clear that the trial court carefully weighed both the probative value and prejudicial effect of the evidence. Under the circumstances the trial court did not abuse its discretion in carefully limiting the admission of evidence concerning Finner’s disappearance.
IV.
Pennell contends that taking blue fibers from his van was an unconstitutional search and seizure. The State responds that the search and seizure comes within the “plain view” exception to the warrant requirement.
The State admits that it did not have a warrant either to search Pennell’s van or to seize the carpet fibers. All parties agree that the validity of Officer Lano’s search and seizure depends upon whether it was within the “plain view” exception.
Such an exception to the warrant requirement was first recognized by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Recently, the test was modified to require only that: 1) the police officer was legally in a position to view the evidence in plain view; and 2) the incriminating nature of the evidence must be immediately apparent. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990). Both of those criteria are met here.
Pennell argues that Officer Lano was not legally in a position to view the blue fibers which were seized. However, it is clear that Pennell, believing Officer Lano was a prostitute, invited her to enter his van. The defendant motioned for Lano to come into his van after driving past her numerous times. Thus, while standing at the doorway of the van as a result of this encounter, Officer Lano was able to see the blue carpeting that covered the interior of Pennell’s van.
During part of their conversation, which was monitored at all times by other police officers via a hidden microphone worn by Ms. Lano, Pennell asked her if she was a police officer. She answered that she was not. Pennell contends that this misrepresentation vitiates the legality of her presence in the doorway of his van. Defendant relies on an Ohio Supreme Court case which held that liquor control agents who misrepresented themselves, and gained entry into a fraternity party, were not “legally” on the premises for purpose of the plain view exception. State v. Pi Kappa Alpha Fraternity, 23 Ohio St.3d 141, 491 N.E.2d 1129, 491 N.E.2d 1129 (1986), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 93 L.Ed.2d 54 (1986). That case is contrary to well-established Supreme Court case law. See, e.g., Lewis v. United States, 385 U.S. 206, 210-12, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966). It should also be noted that Lano did not gain entry into a house through her alleged “deception”, rather, she stood beside the open door of defendant’s van under obvious circumstances where Pennell had a lesser expectation of privacy. New York v. Class, 475 U.S. 106, 112-13, 106 S.Ct. 960, 964-66, 89 L.Ed.2d 81 (1986).
Pennell further argues that the police did not have probable cause to seize the fibers because their evidentiary value was not immediately apparent. Wicks v. State, Del.Supr., 552 A.2d 462, 465 (1988) (citing Coolidge v. New Hampshire, 403 U.S. at 466, 91 S.Ct. at 2038). The police, however, are not required to know for a fact that an item is evidence in order to seize it. Id. (citing Texas v. Brown, 460 U.S. 730, 741-42, 103 S.Ct. 1535, 1542-43, 75 L.Ed.2d 502 (1983)).
Officer Lano’s belief was clearly sufficient for probable cause purposes. Probable cause exists if the facts would make a reasonably cautious person believe that the item in plain view is useful as evidence in a crime. United States v. Miller, 769 F.2d 554, 557 (9th Cir.1985); see also State v. Phillips, Del.Super., 366 A.2d 1203 (1976) (similar standard applied to evidence of an incriminating nature). Officer Lano’s information, which led her to believe that the blue fibers from the van’s carpet may be useful as evidence, was extensive. She knew that a van matching Pennell’s was used in at least one abduction, and that DiMauro’s body was found covered in blue fibers which are most often found in carpet. In addition, the F.B.I. had given the police a profile of the person they thought was responsible for the murders. The profile described the individual as a white male, between 25 and 35 years of age, probably in the construction or building trades and residing in the general vicinity of the crimes. In their conversation at the van, Officer Lano elicited personal information from Pennell which coincided with the F.B.I. profile.
Defendant also challenges the two subsequent searches as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, that issue is rendered moot by our conclusion upholding the validity of the seizure of the blue fibers.
V.
Pennell argues that the trial court abused its discretion in allowing F.B.I. Agent Douglas to testify as an expert on serial murders. He contends that this was not the proper subject of expert testimony.
Pennell’s attempt to apply the Frye test and its progeny to Agent Douglas’ testimony is misplaced. Those cases concern the reliability, accuracy and admissibility of certain scientific tests. See, e.g., Frye v. United States, 293 F. 1013 (D.C.App.1923) (lie-detector test); Whalen v. State, Del.Supr., 434 A.2d 1346 (1980), cert. denied, 455 U.S. 910, 102 S.Ct. 1258, 71 L.Ed.2d 449 (1982) (sperm test); State v. Moore, Del.Super., 307 A.2d 548 (1973) (breathalyzer test). Agent Douglas, on the other hand, was providing an expert opinion based upon his knowledge and experience in the field of crime analysis. This Court has held that when an expert’s opinion is based solely upon his own knowledge and experience, the Frye test has no application. Bass v. State, Del.Supr., No. 14, 1984, Horsey, J., slip op. at 6 (Sept. 20, 1985) [505 A.2d 451 (table)] (expert comparing hair samples).
The admissibility of Agent Douglas’ opinion, therefore, is governed by Delaware Rule of Evidence 702 (“Rule 702”) which provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
This Court has held that knowledge is “specialized” only when not possessed by the average trier of fact. Wheat v. State, Del.Supr., 527 A.2d 269, 272 (1987). Douglas’ extensive experience with signature crimes and crime analysis was specialized, and if accepted by the jury, could be helpful to it in understanding behavior unknown to the general public. See id. (expert witness permitted to testify on behavior of intrafamily sexual abuse victims); see also United States v. Rogers, 769 F.2d 1418 (9th Cir.1985) (allowing F.B.I. agent to testify as to “signature” aspects of bank robberies for which the defendant was charged). Whether all three murders were committed by the same person was clearly a “fact in issue” for purposes of Rule 702. In addition, Agent Douglas was unquestionably qualified as an expert. Accordingly, the trial court properly found his testimony to be admissible opinion testimony under Rule 702.
Pennell also contends that Agent Douglas’ testimony went beyond the scope of the trial court’s ruling. The trial court permitted Agent Douglas to testify as to the “signature” aspects of the crime, but would not allow the introduction of “profile” evidence. “Profile” evidence is that which attempts to link the general characteristics of serial murderers to specific characteristics of the defendant. Such evidence is of little probative value and extremely prejudicial to the defendant since he is, in a sense, being accused by a witness who was not present at any of the crimes.
Defendant argues that Douglas’ testimony that the perpetrator was “not youthful” impermissibly implicated Pennell, who then was 32 years old. Upon examining the context of the comment, however, we are satisfied that Douglas’ statement was not improper. Douglas noted the sophistication of the crimes, which tended to negate their commission by an inexperienced youth. Thus, he stated: “we are not talking about, well, a youthful type of offender.” “Youthful” was in reference to the criminal experience of the perpetrator rather than his age. Moreover, Douglas never gave an age range for the offender and “youthful” is open to numerous interpretations. Thus, under all of the circumstances we are satisfied that Douglas did not impermissibly interject “profile” evidence into the case.
VI.
Finally, Pennell asserts that there was insufficient evidence to support his conviction for the death of Shirley Ellis. Our standard of review is whether the evidence, viewed in the light most favorable to the State, is such that “any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Williams v. State, Del.Supr., 539 A.2d 164 (1987).
A review of the record fully supports a conclusion that the evidence was sufficient to support Pennell’s conviction for the Ellis murder. Such evidence includes: 1) an aqua blue cotton fiber was found in Pennell’s buck knife which matched fibers found in Ellis’ pants in all microscopically significant characteristics, 2) duct tape of a type sold only to those in the building trades was found in Ellis’ hair (Pennell was an electrician), 3) pliers found in Pennell’s possession were identified as consistent with pinch type bruises on Ellis’ abdomen. Most significantly, the injuries sustained by DiMauro and Ellis were so strikingly similar that there was expert testimony to the effect that they were inflicted by the same person. The evidence that Pennell murdered DiMauro is overwhelming. Under the foregoing circumstances we find the evidence sufficient to sustain Pennell’s conviction for the murder of Shirley Ellis..
Accordingly, the judgment of the Superior Court is AFFIRMED.
Subsequent to the oral argument in this case, Pennell pled nolo contendré to first degree murder for the death of Gordon, and has been sentenced to death. He seeks to waive all appeals regarding that sentence.
At oral argument, defendant's counsel stated that his remark of "standing behind" the defendant was only a reference to his physical posi-tíon in the courtroom. While we accept that representation for present purposes, we are not unmindful of the subliminal effect such a statement may have upon a jury or any other reasonable person as suggesting counsel’s belief in the innocence of his client. Thus, as made, we consider it inappropriate under all circumstances.
Steven B. PENNELL, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Submitted: Feb. 11, 1992.
Decided: Feb. 18, 1992.
Steven B. Pennell, pro se. Joseph M. Bernstein, “stand-by” counsel, Wilmington, for defendant-appellant.
Richard E. Fairbanks, Jr. (argued), and Timothy J. Donovan, Jr., Dept, of Justice, Wilmington, for plaintiff-appellee.
Before CHRISTIE, C.J., HORSEY, MOORE, WALSH, and HOLLAND, JJ. (constituting the Court en banc).
[OPINION BY HOLLAND, Justice: type=majority]
HOLLAND, Justice:
The defendant-appellant, Steven B. Pennell (“Pennell”), was indicted on two separate charges of Murder in the First Degree. Pennell entered pleas of nolo contendere. On October 31, 1991, following a penalty hearing, the Superior Court sentenced Pennell to death by lethal injection for each crime. Pennell did not file a direct appeal.
An automatic appeal was docketed with this Court on November 1, 1991, pursuant to 11 Del.C. § 4209(g), and Supreme Court Rule 35. In accordance with the mandate of Delaware’s death penalty statute, we have reviewed the imposition of the death sentences by the Superior Court, following each of Pennell’s convictions of Murder in the First Degree. 11 Del.C. § 4209(g). We have concluded that the judgments and sentences of the Superior Court should be affirmed.
Procedural History
On November 8, 1991, Pennell informed the Clerk of this Court, in a handwritten letter dated November 3, 1991, “of [his] decision that no action will be started by [him] against the conviction or sentencing.” Pennell also expressed his “wish to have the automatic review of the death sentence pursuant to 11 Del.C. § 4209(g) and Supreme Court Rule 35 commenced as soon as all documents are received by this Court.” That letter also stated that Pennell would “respectfully object to any counsel other than [himself] being appointed” to represent him in this Court.
On November 14, 1991, Pennell, acting pro se, filed a handwritten document in this Court, titled “Notice to Dismiss Appeal and Affirm Judgment.” In that document, Pennell requested this Court to affirm the death sentences that had been imposed by the Superior Court “so that the proposed sentence can be carried out without delay.” On November 25, 1991, the record of the proceedings in the Superior Court was filed with this Court. On December 2,1991, this Court concluded that, in the interest of justice, this matter should be remanded to the Superior Court for an evidentiary hearing on Pennell’s applications: to represent himself on appeal, see Watson v. State, Del.Supr., 564 A.2d 1107 (1989); to dismiss the appeal; and to affirm the judgments of the Superior Court, which had resulted in the imposition of both death sentences.
On December 19, 1991, the Superior Court conducted an evidentiary hearing in accordance with this Court’s order of remand. Thereafter, on December 26, 1991, the Superior Court filed a written report of its findings dated December 20, 1991, pursuant to Supreme Court Rules 19 and 26(d)(iii). The written findings of the Superior Court carefully addressed the issues set forth in the remand by this Court.
The Superior Court found that Pennell’s decision to proceed pro se on appeal in this Court was made knowingly and voluntarily, with a full understanding of the dangers of pursuing self-representation and the disadvantages he may encounter as a result of not having an attorney representing him on appeal. The Superior Court also found that Pennell understood the limited nature of this Court’s proportionality review of a sentence of death pursuant to 11 Del.C. § 4209(g)(2). The Superior Court further found that Pennell realized that if his motion to affirm was granted, it would result in his execution. On January 7, 1992, this Court approved and adopted the findings of fact and conclusions of law set forth in the Superior Court’s written report dated December 20, 1991.
On January 7, 1992, based upon the Superior Court’s conclusion that Pennell was fully informed of the hazards of self-representation and had voluntarily waived his right to the assistance of counsel on appeal, Pennell’s request to proceed pro se in this Court was granted. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This Court also granted Pennell’s request to limit its examination of the proceedings in the Superior Court to the mandatory statutory review of the proportionality of the imposition of the penalty of death in each case, pursuant to 11 Del. C. § 4209(g)(2), (3) and (4). See Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). The Clerk of this Court was then directed to issue a brief schedule forthwith.
On January 10, 1992, Pennell filed a handwritten motion renewing his earlier motion to dismiss the appeal and to affirm the judgment of the Superior Court, pursuant to 11 Del. C. 4209(g)(4)(a). In the alternative, Pennell’s motion asked this Court to expedite its scheduling by proceeding “directly to oral argument without briefs,” Supr.CtR. 25(c); or to accept his motion “in lieu of a brief.” Pennell’s motion stated that he waived his right to submit an opening brief under 11 Del.C. § 4209(g)(3).
On January 16, 1992, this Court denied Pennell’s motion for summary affirmance of the death sentences imposed by the Superior Court. The choice by a defendant, who has been sentenced to death, to abandon further litigation “can be made, competently, knowingly and intelligently; and, when so made, will be honored by the courts.” State v. Bailey, Del.Super., 519 A.2d 132, 134 (1986). See also Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). However, this Court determined that such waiver was precluded because of the statutory mandate in Delaware which provides: “Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the recommendation on and imposition of that penalty shall be reviewed on the record by the Delaware Supreme Court.” 11 Del.C. § 4209(g)(1) (emphasis added).
On January 16, 1992, this Court granted Pennell’s motion for expedited scheduling, and granted Pennell’s request to waive the filing of an opening brief. Nevertheless, this Court requested the State to file a brief, on or before January 25, 1992, stating its position on the issues mandated to be reviewed by statute. 11 Del.C. § 4209(g)(2). This Court also granted Pennell the right to file a brief in response to the State’s brief.
On January 16, 1992, this Court also granted Pennell’s application to present oral argument. 11 Del.C. § 4209(g)(3). This Court also granted the State the right to present oral argument. The attorney who had been designated as “stand-by” counsel for Pennell in the Superior Court was directed to be present with Pennell at the oral argument before this Court.
On January 24, 1992, the State filed its brief. Pennell filed a handwritten reply brief on January 28, 1992. In his brief, Pennell stated that the evidence “unequivocally” supported the imposition of both sentences of death by the Superior Court. Pennell’s brief reiterated his request for this Court to “affirm the death sentence without delay.”
On February 11, 1992, this Court heard oral arguments by Pennell, pro se, and the State. Present at oral argument with Pennell was his “stand-by” attorney. Pennell made a cogent and reasoned argument which requested this Court to affirm the death sentences that had been imposed upon him by the Superior Court. (Appendix II). The State agreed with Pennell’s position and presented an independent oral argument requesting this Court to affirm the judgments and death sentences of the Superior Court. Id.
Facts
The record of the Superior Court in this matter, including transcripts, have been filed with this Court. The record reflects that the indictments in the matter subjudi-ce, charging Pennell with two counts of Murder in the First Degree, alleged that Pennell had intentionally caused the deaths of Michelle Gordon and Kathleen Meyer. Prior to his arraignment, Pennell advised the Superior Court that it was his desire to represent himself and to enter pleas of nolo contendere to each charge.
On August 20, 1991, the Superior Court held a hearing on Pennell’s motion to represent himself. At the conclusion of that hearing, the Superior Court reserved decision on Pennell’s request to proceed pro se and ordered an independent psychiatric evaluation of Pennell. A detailed written psychiatric report, dated September 10, 1991, was delivered to the Superior Court and is a part of the record. That evaluation concluded with the psychiatrist’s opinion that Pennell was “competent to stand trial, to represent himself and to enter a plea ...”
On October 11, 1991, the Superior Court granted Pennell’s motion to represent himself. In a carefully reasoned written decision which considered, inter alia, the report of the psychiatrist’s independent examination and the evidence presented at the August 20, 1991 hearing on Pennell’s motion, the Superior Court concluded that Pennell had “knowingly, intelligently, and voluntarily waived his right to counsel and invoked his right to represent himself at trial.” In that same written decision, due to what it characterized as “an abundance of caution and because of the nature of these charges,” the Superior Court appointed “stand-by” counsel for Pennell “should he later need help in representing himself or to step in as counsel should it later become necessary to terminate [Pennell’s] self-representation.” In addition to “stand-by” counsel, the Superior Court appointed an attorney to represent Pennell “for the limited purpose of handling any motions in limine seeking the exclusion of DNA evidence.”
On October 21, 1991, Pennell filed a pro se motion in the Superior Court to change his pleas from “not guilty” to nolo contendere. On October 30, 1991, the Superior Court held a hearing on Pennell’s motion to change his not guilty pleas. After a carefully conducted plea colloquy, the Superior Court concluded that Pennell had made a knowing and voluntary decision to enter pleas of nolo contendere to each charge of Murder in the First Degree and accepted those pleas.
After accepting Pennell’s pleas of nolo contendere, the Superior Court directed the State to present evidence that would establish a prima facie case for each charge of Murder in the First Degree. With respect to the death of Michelle Gordon, the State introduced, without objection, the entire record of the guilt/innocence phase of a prior trial. State v. Pennell, Del.Supr., 602 A.2d 48 (1991). At the prior trial, a jury had convicted Pennell of Murder in the First Degree with respect to the death of Shirley Ellis and Catherine DiMauro, but had been unable to reach a unanimous verdict with respect to a charge of Murder in the First Degree involving the death of Michelle Gordon. Id. The Superior Court also ruled that the proceedings of the prior trial, as they related to the deaths of Ellis and DiMauro, were admissible in both the Gordon and the Meyer cases to identify the perpetrator, because the mo-dus operandi of all four murders was the same. Id. D.R.E. 404(b). With respect to the death of Kathleen Meyer, the State presented the live testimony of Sergeant James R. Hedrick, a Supervisor in the Criminal Investigation Unit of the New Castle County Police and the live testimony of Harold A. Deadman, a Special Agent employed by the Federal Bureau of Investigation.
The State’s evidence demonstrated that Kathleen Meyer was last seen alive on September 10, 1988. She left her home in Brookmont Farms off Route 40, on foot, at about 9:30 p.m. Because a missing person, Margaret Finner, was last seen entering a blue van, the police were on the look-out for such a vehicle. That evening, by chance, an off-duty police officer saw a young woman hitchhiker matching Meyer’s description enter a blue van on Route 40 near the entrance to Brookmont Farms. The officer made a note of the blue van’s license number. It was later determined that the registered owner of the van was Steven Pennell.
The State’s evidence demonstrated that Michelle Gordon’s body was found on September 20, 1988 on rocks by the Chesapeake and Delaware Canal. Two days earlier Gordon had been seen entering Pennell’s van on Route 40 by a witness who knew both her and Pennell. An autopsy indicated that Gordon had been bound and tortured before she died, in a manner similar to the acts relating to the murders of Ellis and DiMauro. The Medical Examiner opined that cocaine in Gordon’s system may have made her heart less capable of withstanding the shock of the torture and beating she sustained. Consequently, the Medical Examiner opined that Gordon had died while she was being tortured. After Gordon’s death, the perpetrator mutilated her body.
The State also presented physical and scientific evidence to connect Pennell to the murders of both Gordon and Meyer. Kathleen Meyer’s body was never recovered. However, the police obtained blood samples from her father and mother. Those blood samples were submitted for DNA analysis along with the carpeting from Pennell’s van. The analyst was able to isolate blood in that carpeting which was consistent with blood from a child of Kathleen Meyer’s parents. The State also presented forensic evidence to connect Pennell with the murder of Michelle Gordon. Head and pubic hairs matching those of Gordon were found in Pennell’s van. It was determined, after scientific analysis, that several of the head hairs had been damaged in a way that was consistent with having been struck by a blunt object. The expert opinion of the Director of the Behavioral Science Unit of the Federal Bureau of Investigation, presented during testimony at Pennell’s prior trial, was that Ellis, DiMauro and Gordon had all been murdered by the same person.
Following the presentation of the State’s evidence, the Superior Court determined that there was a factual basis for each of the charges of Murder in the First Degree, to which Pennell had entered a plea of nolo contendere. Thereafter, the Superior Court stated that it was convinced, beyond a reasonable doubt, that if the State’s evidence were presented at a trial, Pennell would be found guilty as charged. As a result, the Superior Court found Pennell guilty of Murder in the First Degree with regard to the death of Michelle Gordon and the death of Kathleen Meyer.
On October 31, 1992, the Superior Court conducted a penalty hearing to determine whether Pennell should be sentenced to life imprisonment or death, with regard to each of his convictions of Murder in the First Degree the previous day. Pennell waived his right to have that determination made by a jury. Prior to the penalty hearing, the State had advised Pennell that it would seek to have a sentence of death imposed for each conviction. The State also gave Pennell written notice, prior to the penalty hearing, of the statutory and non-statutory aggravating circumstances it would seek to establish. 11 Del.C. § 4209(c)(1).
At the penalty hearing, without objection, the State again introduced the entire record of the guilt/innocence phase of Pennell’s prior trial. Pennell v. State, Del.Supr., 602 A.2d 48 (1991). The State also introduced into evidence the penalty phase of that prior trial. Id. That record reflected that Pennell had been convicted of Murder in the First Degree with regard to the similar deaths of Shirley Ellis and Catherine DiMauro, under circumstances similar to the deaths of Gordon and Meyer. That trial record also reflected the specific manner in which Michelle Gordon had died. The State contended that the record of the prior trial, and its evidence in the present proceedings, established two statutory aggravating circumstances: first, that a course of conduct by Pennell had resulted in the death of two or more persons 11 Del. C. § 4209(e)(l)(k); and, second, that the murder of Michelle Gordon was outrageously or wantonly vile, horrible, or inhuman in that it involved torture. 11 Del. C. § 4209(e)(l)(i).
A non-statutory aggravating circumstance was introduced by the State in the case of Michelle Gordon. The State presented the live testimony of M.S., Michelle Gordon’s mother. M.S. testified as to the impact of Michelle Gordon’s death upon her family. Petition of State, Del.Supr., 597 A.2d 1 (1991).
Pennell did not contest the State’s evidence in either case and did not present any mitigating evidence during the penalty hearing. However, in a closing argument, he repeated his request to have sentences of death imposed by the Superior Court judge:
The only thing I would like to put on the record, I believe the Court knows how I feel. The law was developed from one book and it’s that book I quote from. In Numbers, Chapter 35, Verse 30, “Whoever kills a person, the person shall be put to death” — also, in Genesis, Chapter 9, Verse 6, “Whoever sheds man’s blood by man, his blood shall be shed.”
This Court has found me guilty on testimony of witnesses, so I ask that the sentence be death as said by the State laws and God’s laws. That’s all I have to say.
Prior to announcing a sentencing decision, the record reflects that the Superior Court judge recessed the court and deliberated for several hours.
Later on October 31, 1991, during the mid-afternoon, the Superior Court judge announced his sentencing decision. The judge found that the State had established, beyond a reasonable doubt, two statutory aggravating circumstances: first, with respect to each conviction, that Pennell’s course of conduct had resulted in the death of two or more persons, 11 Del.C. § 4209(e)(l)(k); and, second, that the murder of Michelle Gordon was outrageously and wantonly vile, horrible and inhuman in that it involved torture, 11 Del.C. § 4209(e)(l)(i). In mitigation, the judge found that Pennell had a supportive family and “until these incidents, been a substantial provider for his family, as well as a father and husband and son.”
The Superior Court judge then weighed the aggravating factors, the mitigating factors, the circumstances of the crimes, and Pennell’s character, criminal record, and propensities. The record reflects the judge’s deliberative process in determining the appropriate sentence. It was, in part, as follows:
In this case, the circumstances of the offenses are the most egregious possible. The evidence shows that in the coldly premeditated fashion, the Defendant abducted Michelle Gordon. He held her in captivity alone and afraid. He bound her hand and foot, he tortured her, he murdered her, mutilated and disposed of her body. The victim of this murder experienced terror, fear, pain and hopelessness before she died. Her suffering and death call for retribution.
In the case of Kathleen Meyer, we know less of her last hours. We know only that she died at the hands of the Defendant and probably she died in his van. Her death calls for retribution. We know, too, that these are not the only victims of this Defendant.
We know that he also murdered Catherine DiMauro and Shirley Ellis. It has been established beyond a reasonable doubt that the Defendant has committed these two additional murders of women who were tortured and murdered in a similar fashion similar to the fashion employed in the murder of Michelle Gordon. We know, therefore, that his propensity for violence and torture were not limited to Michelle Gordon. The Court must balance the circumstances of these two deaths, Kathleen Meyer and Michelle Gordon, against his family situation.
Mr. Pennell is an intelligent individual. He has demonstrated that intelligence to the Court in these proceedings. That very intelligence makes these crimes even more reprehensible. Mr. Pennell took with him the tools necessary to bind the victims’ limbs, the tools necessary to cause mutilation and kill. These were planned murders.
... The enormity of these two crimes, their cold premeditation and their callous execution clearly outweigh any mitigating factors. The Court, therefore, concludes that the Defendant is a threat to commit additional violent acts.
Mr. Pennell has asked this Court to impose the death penalty. He states that if the Court is convinced he committed these offenses, the law of Delaware and the law of God prescribe death as the penalty. The Court makes its decision not upon that request of the Defendant. The Court makes its decision solely on the facts of these crimes and the laws of the State of Delaware.
The Superior Court judge concluded that the proper sentence for each of Pennell’s convictions of Murder in the First Degree, relating to the deaths of Michelle Gordon and Kathleen Meyer, was death by lethal injection.
Death Penalty Review
The Delaware capital punishment statute mandates this Court’s review of the death sentences that were imposed upon Pennell by the Superior Court. See Dawson v. State, Del.Supr., 581 A.2d 1078, 1107 (1990). Although the review which the statute mandates by this Court is limited, that review is not perfunctory. See Dobbert v. Florida, 432 U.S. 282, 295, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977). 11 Del.C. § 4209(g)(2) provides as follows:
(2) The Supreme Court shall limit its review under this section to the recommendation on and imposition of the penalty of death and shall determine:
a. Whether, considering the totality of evidence in aggravation and mitigation which bears upon the particular circumstances or details of the offense and the character and propensities of the offender, the death penalty was either arbitrarily or capriciously imposed or recommended, or disproportionate to the penalty recommended or imposed in similar cases arising under this section.
b. Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in subsection (e) of this section and, where applicable, § 636(a)(2)-(7) of this title.
In performing our review, in accordance with the statute, we are cognizant that “death as a punishment is unique in its severity and irrevocability.” Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
We have traditionally commenced our mandatory statutory review by initially addressing subparagraph (b) of Section 4209(g)(2). Dawson v. State, 581 A.2d at 1107. Accordingly, we begin with an examination of the evidence in the record to support the findings of the Superior Court judge which relate to the establishment of statutory aggravating circumstances. 11 Del.C. § 4209(e). The first statutory aggravating circumstance that the Superior Court judge found to have been established by the State was that Pennell’s “course of conduct resulted in the deaths of 2 or more persons....” 11 Del.C. § 4209(e)(l)(k). The judge found that this statutory aggravating circumstance had been established with respect to both the conviction relating to the murder of Michelle Gordon and the conviction relating to the murder of Kathleen Meyer.
The record reflects that the first statutory aggravating circumstance had been established beyond a reasonable doubt, as a matter of law, by virtue of Pennell’s pleas of nolo contendere in these cases and by the admission, without objection, of the record evidencing Pennell’s prior separate convictions of two other charges of Murder in the First Degree. The latter convictions, relating to the deaths of Shirley Ellis and Catherine DiMauro, have been reviewed by this Court and are final. State v. Pennell, Del.Supr., 602 A.2d 48 (1991). The record also reflects, beyond a reasonable doubt, that Meyer, Gordon, Ellis and DiMauro were murdered by Pennell in a manner which established a similar “course of conduct.” 11 Del.C. § 4209(e)(l)(k).
The Superior Court judge found the existence of a second statutory aggravating circumstance with regard to the conviction that related to the death of Michelle Gordon. The judge found that the murder of Michelle Gordon “was outrageously or wantonly vile, horrible or inhuman in that it involved torture....” 11 Del.C. § 4209(e)(l)(i). In support of that finding the State introduced, without objection, the trial testimony by the State Medical Examiner. According to that testimony, Michelle Gordon died while she was being tortured.
The record reflects that the Superior Court judge properly found, beyond a reasonable doubt, the existence of one statutory aggravating circumstance with respect to the murder of Kathleen Meyer. The record also reflects that the Superior Court judge properly found, beyond a reasonable doubt, the existence of two statutory aggravating circumstances with respect to the murder of Michelle Gordon. Therefore, this Court concludes that the evidence supports the Superior Court judge’s finding that the State had established beyond a reasonable doubt, the existence of at least one statutory aggravating circumstance with respect to each of Pennell’s convictions of Murder in the First Degree in the matter sub judice. 11 Del. C. §§ 4209(e)(1), (g)(2)(b).
Two additional inquiries are required by subparagraph (a) of Section 4209(g)(2): first, whether the Superior Court judge’s imposition of the death penalty was either arbitrary or capricious, and second, whether the death penalty imposed was disproportionate to the penalty imposed in similar cases arising under the statute. Dawson v. State, 581 A.2d at 1108; Riley v. State, Del.Supr., 496 A.2d 997, 1026 (1985). “Each question requires a consideration of the totality of evidence in aggravation and mitigation which bears upon the particular circumstances or details of the offense and the character and propensities of the offender.” Id.; 11 Del.C. § 4209(g)(2). Dawson v. State, 581 A.2d at 1108.
After a careful review of the entire record, we find that Pennell’s sentences of death were neither arbitrarily nor capriciously imposed by the Superior Court judge. The judge stated unequivocally that his sentencing decision was not based upon Pennell’s request to have the death penalty imposed. The record reflects that the Superior Court judge carefully considered the totality of the evidence in aggravation and mitigation, which related to the particular circumstances of the murder of Michelle Gordon and the murder of Kathleen Meyer. The judge also carefully considered Pennell’s character and propensities. The Superior Court judge succinctly and poignantly expressed the basis for his decision to impose the death penalty in each of the cases that are now before this Court. The record supports those decisions and reflects that each decision was the product of a deliberate, rational and logical deductive process.
The remaining question which we must now address, is whether the Superior Court judge’s imposition of the death penalty upon Pennell in each case was disproportionate to the penalty recommended in similar cases arising under the Delaware capital punishment statute. To answer that final inquiry, this Court has reviewed the “universe” of cases established in Flamer, Riley, DeShields, and Dawson, as well as all of the subsequent cases falling therein, i.e., we have compared Pennell’s sentence with the penalties in all first degree murder cases which have gone to trial and a death penalty hearing. Dawson v. State, 581 A.2d at 1108; DeShields v. State, Del.Supr., 534 A.2d 630, 649 (1987); Riley v. State, 496 A.2d at 1027-28; Flamer v. State, Del.Supr., 490 A.2d 104, 140 (1983); (Appendix I). This Court has also considered objective factors such as the gravity of the offense, the circumstances of Pennell’s crimes, and the harshness of the penalty. See Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3009-11, 77 L.Ed.2d 637 (1983).
A definitive comparison of the “universe” of cases is almost impossible. Dawson v. State, 581 A.2d at 1108; Riley v. State, 496 A.2d at 1027; Flamer v. State, 490 A.2d at 144. All of the penalty hearings in the “universe” of cases which preceded Pennell’s were conducted before a jury-
individual jurors bring to their deliberations “qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury’s function to make the difficult and uniquely human judgments that defy codification and that “buil[d] discretion, equity, and flexibility into a legal system.”
Dawson v. State, 581 A.2d at 1108 (citing McClesky v. Kemp, 481 U.S. 279, 811, 107 S.Ct. 1756, 1777, 95 L.Ed.2d 262 (1987)). In this matter, Pennell waived his right to a jury during the penalty hearing. However, the fact that Pennell was sentenced to death by a judge, rather than a jury, does not change the nature of this Court’s comparative analysis.
This Court has reviewed the factual background of the applicable “universe” of cases. Pennell, like other defendants sentenced to death in Delaware, was found guilty of committing the unprovoked, coldblooded, execution-style murders of persons who lacked the ability to defend themselves, e.g., Dawson v. State, 581 A.2d at 1108, DeShields v. State, 534 A.2d at 649, Riley v. State, 496 A.2d at 1027. Pennell, like other defendants sentenced to death in Delaware, was found guilty of committing each murder during a course of conduct that resulted in the death of two or more persons, e.g., Deputy v. State, Del.Supr., 500 A.2d 581, 602 (1985); Bailey v. State, Del.Supr., 490 A.2d 158, 173 (1983) and Bailey v. State, Del.Supr., 503 A.2d 1210, 1211 (1984); and Flamer v. State, 490 A.2d at 123-124.
However, this Court’s review of the “universe” of cases in the context of Pennell’s present appeal is unique in that the “universe” of cases includes a prior penalty hearing for Pennell which resulted in a jury being unable to recommend the imposition of a death sentence. State v. Pennell, Del.Supr., 602 A.2d 48 (1991). While this is a unique circumstance in Delaware’s capital punishment jurisprudence, other jurisdictions expressly recognize that a judge and a jury may disagree about the appropriateness of imposing a sentence of death, even in a single proceeding. The Florida death penalty statute, for example, permits a judge to reject a jury’s recommendation of life and to impose a penalty of death during a single trial. However, under that Florida statutory scheme, “in order to sustain a sentence of death [by the judge] following a jury recommendation of life, the facts suggesting a sentence of death [by the judge] should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, Fla.Supr., 322 So.2d 908, 910 (1975) (cited with approval by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 249, 96 S.Ct. 2960, 2965, 49 L.Ed.2d 913 (1976) and Dobbert v. Florida, 432 U.S. 282, 295, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977)).
This Court finds the Tedder analysis didactic, by analogy, for present purposes, notwithstanding the fact that the analogy is incomplete. First, we recognize that although the inability of the jury to reach a unanimous verdict during the penalty phase of Pennell’s first trial resulted in the imposition of two life sentences, its indecision cannot be equated with a “recommendation” of a life sentence by the jury. Second, we recognize that Pennell’s penalty hearing before a jury and his penalty hearing before the Superior Court judge were separate proceedings with a different totality of evidence.
Taking the foregoing distinctions into consideration, the facts in this record, a fortiori, support the decision of the Superior Court judge to impose sentences of death. The record reflects that when Pennell appeared before the Superior Court judge for sentencing, he had been convicted of two additional murders that were not known to the jury at his prior trial. Each of what were then a total of four murders had been committed by Pennell on separate occasions, in a similar manner, over a period of time, and with no apparent motive other than to inflict pain and death. Thus, when Pennell was sentenced for the deaths of Kathleen Meyer and Michelle Gordon, he was unique among the “universe” of Delaware defendants because the record reflected, beyond a reasonable doubt, he was a relentless serial murderer.
The Superior Court judge carefully evaluated the totality of the circumstances reflected in the evidence of the penalty hearing. The Superior Court judge concluded that “the enormity of these two crimes (Gordon and Meyers’ murders), their cold premeditation and then callous execution clearly outweigh any mitigation factors and warranted the imposition of the death penalty for each conviction.” The record supports that decision. It reflects that the weight of the aggravating circumstances completely overwhelmed the mitigating circumstances in each case.
Finally, even if our review of Pennell’s sentence was limited to the killings to which he entered pleas of nolo contendere, leaving aside the earlier convictions, the circumstances of the deaths of Kathleen Meyer and Michelle Gordon would support the imposition of the death penalty. The cruel and outrageous nature of the deaths of these helpless women, when compared with the “universe” of Delaware cases, demonstrates the appropriateness of the imposition of death, without consideration of any prior conduct on the part of Pennell.
Conclusion
This Court has determined that the facts supporting the sentences of death, which were imposed upon Pennell by the Superior Court judge, for the murders of Michelle Gordon and Kathleen Meyer, are so clear and convincing that virtually no reasonable person could differ. Accord Dobbert v. Florida, 432 U.S. 282, 295, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977). This Court concludes that the death sentences imposed upon Pennell “are not comparatively disproportionate to the sentences in the other first degree murder cases that have proceeded to a penalty hearing pursuant to the Delaware capital punishment statute, and in which at least one statutory aggravating circumstance was found to exist by the jury.” Dawson v. State, 581 A.2d at 1109. Therefore, the judgments of the Superior Court, which resulted in Pennell’s convictions and the imposition of the death sentences, are AFFIRMED.
The matter is remanded to the Superior Court for further proceedings, in accordance with this opinion. The parties shall have until February 26,1992 to file motions for reargument. This Court’s order of November 6,1991, staying the execution of Pennell’s death sentences, shall terminate upon the issuance of this Court’s mandate. The Clerk of this Court is directed to cause a copy of this opinion to be hand-delivered forthwith to the parties and to the Commissioner of the Department of Correction.
APPENDIX I
FIRST DEGREE MURDER CASES THAT WENT TO PENALTY HEARINGS SINCE 1985
Case Name: William P. Baynard
Case No.: S84-050137, 0141
County: New Castle
Sentence: Life Imprisonment
Case Name: Ransford Bryan
Case No.: S87-11-0063
County: Sussex
Sentence: Life Imprisonment
Case Name: Vicky Chao
Case No.: IN88-031025-1025 & 1027, 1028
IN88-0832-0836
County: New Castle
Sentence: Life Imprisonment
Case Name: Carmelo J. Claudio
Case No.: IN87-030067-68
County: New Castle
Sentence: Life Imprisonment
Case Name: Lawrence R. Collingwood, Jr.
Case No.: K87-09-0895-0901
County: Kent
Sentence: Life Imprisonment
Case Name: David F. Dawson
Case No.: IK87-010834 thru 0847
County: Kent
Sentence: Death
Case Name: Kenneth W. DeShields
Case No.: IS84-080075-1075, -1275, -2075
County: Sussex
Sentence: Death
Case Name: Sebron Ernest Flemming, III
Case No.: IN90-09-1047
County: New Castle
Sentence: Life Imprisonment
Case Name: Edward A. Fountain, Jr.
Case No.: IN84^120293 through 0297
IN84-121795 through 1797
County: New Castle
Sentence: Life Imprisonment
Case Name: Randolph Graham
Case No.: IK86-010059
County: Kent
Sentence: Life Imprisonment
Case Name: James E. Harris, Jr.
Case No.: IN90-08-0479; 0498
County: New Castle
Sentence: Life Imprisonment
Case Name: Charles K. Kelly
Case No.: IN85-10-1671, 1672, 1673
County: New Castle
Sentence: Life Imprisonment
Case Name: Tze Poong Liu
Case No.: IN88-03-1013 through 1015
IN88-04-0838 through 0840
County: New Castle
Sentence: Life Imprisonment
Case Name: James Edward Llewellyn
Case No.: IN91-01-1135, 1137, 1140 and 1142
IN91-01-1136, 1138, 1141, 1143, 1146
IN91-01-1139 and 1144
IN91-01-1145
County: New Castle
Sentence: Life Imprisonment
Case Name: Christopher Delamore Long, Jr.
Case No.: IN91-01-1109 through 1121
County: New Castle
Sentence: Life Imprisonment
Case Name: Joyce L. Lynch
Case No.: IK88-010040
County: Kent
Sentence: Life Imprisonment
Case Name: Stanley Newell
Case No.: IN89-006109
County: New Castle
Sentence: Life Imprisonment
Case Name: Ernest Charles Parson, Jr.
Case No.: IN86-120380, 86-11136-1137
IN86-1144, 1147, 0381-0383, 1135
County: New Castle
Sentence: Life Imprisonment
Case Name: Steven B. Pennell
Case No.: IN88-120051-0053
County: New Castle
Sentence: Life Imprisonment
Case Name: Steven B. Pennell
Case No.: IN91-07-0114; 0015
County: New Castle
Sentence: Death
Case Name: Vincent Perry
Case No.: IN85-101668-1673
County: New Castle
Sentence: Life Imprisonment
Case Name: Maurice Polk
Case No.: S87-12-0093
County: Sussex
Sentence: Life Imprisonment
Case Name: Paul Arnold Robertson, Jr.
Case No.: IN91-01-1148 through 1160
County: New Castle
Sentence: Life Imprisonment
Case Name: Kenneth Louis Rodgers
Case No.: IN91-01-1109 through 1160
County: New Castle
Sentence: Life Imprisonment
Case Name: Frederick James Roop
Case No.: IN84-101691, 1692
County: New Castle
Sentence: Life Imprisonment
Case Name: Reginald N. Sanders
Case No.: IK86-030898 through 0903
County: Kent
Sentence: Death — Reversed and Remanded for a new penalty hearing
Case Name: Christie C. Shipley
Case No.: IK85-020820 and 0821
County: Kent
Sentence: Life Imprisonment
Case Name: Melvin Smart
Case No.: S84-08-0037 and S84-08-0038
County: Sussex
Sentence: Life Imprisonment
Case Name: Desi Sykes
Case No.: IK88-11005
County: Kent
Sentence: Life Imprisonment
Case Name: Richard C. Thompson
Case No.: IK86-010059
County: Kent
Sentence: Life Imprisonment
Case Name: Frank C. Whalen, Jr.
Case No.: IK77090035, 0036; IK78-030029
County: New Castle (venue changed)
Sentence: Life Imprisonment after two prior death sentences were reversed.
Case Name: Lonnie Williams
Case No.: IN89-08-0638 through 0645
IN89-09-0938 through 0943
County: New Castle
Sentence: Life Imprisonment
APPENDIX II
IN THE SUPREME COURT STATE OF DELAWARE
Steven B. Pennell vs. The State of Delaware
No. 407, 1991
February 11, 1992
BEFORE: Chief Justice Andrew D. Christie
Justice Henry R. Horsey
Justice Andrew G.T. Moore, II
Justice Joseph T. Walsh
Justice Randy J. Holland
APPEARANCES:
Richard E. Fairbanks, Jr., Esq. On behalf of the State of Delaware
Steven B. Pennell
Appearing pro se
Joseph Bernstein, Esq.
Stand-by counsel for Defendant
February 11, 1992
February 11, 1992
Courtroom No. 1
2:00 p.m.
JUSTICE CHRISTIE: The Court is assembled this afternoon to hear argument in the automatic appeal in the case of Pennell versus the State. We understand that Mr. Pennell represents himself, having waived the right to have an attorney, and that it has been explained to him that he would make the first presentation, and that he could reserve part of the half hour for rebuttal, and that he has chosen to reserve as much as 20 minutes for his initial presentation, and ten minutes for the rebuttal.
Mr. Pennell may now proceed.
MR. PENNELL: Thank you.
Chief Justice Christie and Justices of the Supreme Court of Delaware. Good afternoon, gentlemen.
I would first like to express my gratitude in allowing me to appear before this Court, because I know of this Court’s policy of not allowing pro se litigants. So, again, I say thank you.
In my presentation before this Court today, I will attempt to show that the death penalty imposed in this case was not the product of passion, prejudice or other arbitrary factors, in that the trial Judge at each step of the proceedings advised of the seriousness of the criminal charges, that certain rights existed that could be beneficial, such as the right to counsel, the right to a jury trial, and so on. That after the finding of guilty beyond a reasonable doubt, the Trial Judge showed no abuse because of discretion, nor determined in an unreasonable manner that, one, the two statutory aggra — excuse me, aggravating circumstances put forth by the State existed beyond a reasonable doubt.
Two, that although no mitigating factors were offered, he chose to exercise judgment in including factor that he knew existed.
And, three, that after careful weighing of each of these circumstances, concluded that the aggravating circumstances substantially outweighed any mitigating factors, and that this determination, along with the circumstances of the crime, the character and the propensities of the defender, directed that the death penalty was appropriate.
Furthermore, in this case, the factual circumstances, plenty so, that the death sentence is not proportionate to penalties imposed in similar cases under Delaware’s Death Penalty Statute.
After being indicted on two charges of first degree murder, a plea was offered to the State and the Court. As part of this plea, it was stated that the imposition of the death penalty would not be opposed but rather sought. In circumstances such as this, it would be very easy to quickly accept this type of a decision after minimal attempt in advising the defendant otherwise. Passions, prejudices are not acting upon one’s own will, instead upon reasoning and exercise of judgment could become the determining factor in accepting and acting on such an offer.
But in this case, the Trial Judge acted cautiously and with a constant exercise of careful judgment. The record will show that numerous attempts were made to be sure that this decision was made willingly, knowingly, and intelligently. In such a plea — and that the Trial Judge’s proceedings showed in accepting such a plea that every opportunity was present to withdraw if it was decided not go forward with such a plea.
Furthermore, the Trial Judge stated that any motion to withdraw such a plea would be looked upon favorably, not only before sentencing, but after sentencing as well.
Acting in such a way as the Trial Judge did shows that his motivations were not willful and unreasonable action done without consideration, nor that it was in disregard of facts or laws or determining principles. This is stated only so that the record reflects that there is a foundation that the Trial Judge did not act in any way that might show arbitrariness, capriciousness, before, and especially during, the penalty phase of the trial — case.
Now, turning to the issues of this review, in accordance with 11 Delaware Code 4209(g)(2), this Court must examine pertinent parts of the penalty hearing, a determination must be made on whether the evidence supports the Judge’s findings of statutory aggravating circumstances.
Two aggravating circumstances were found. The first, of conduct resulting in the deaths of two or more persons.
This is established from the Judge’s findings of guilty on each of the two counts of first degree murder. This Court has upheld in the past that when jury or Judge has found a defendant guilty of first degree murder of two victims in the guilt phase of trial, then the aggravating circumstances of causing the deaths of two persons has been established beyond a reasonable doubt.
Besides being found guilty of the deaths of these two persons, there was also the previous related two convictions of causing the deaths of two others which was upheld by this Court.
In that opinion expressed by this Court, it was stated that the evidence is overwhelming in connection with the death of Katherine DiMauro, and likewise the evidence was sufficient to sustain the conviction for the murder of Shirley Ellis. Due to the State’s claim that these were serial murders, and the evidence linking them to each other, one cannot be viewed without the other. Thus, the first aggravating circumstance is substantially supported by the evidence.
The second statutory aggravating circumstance found that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture. In the past, this type — excuse me. In the past, this type of aggravating factor has been debated as being vague. That is not an issue here, in that the evidence and testimony supports its description sufficiently.
This factor can probably be defined best by looking at a parallel statute in other states where an accused committed the offense in an especially hideous, cruel or depraved manner, and explained by crime which is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim’s death. Including in this, a victim’s uncertainty as to her ultimate fate, and in a depraved manner where there is evidence of debasement, or perversion, or indifference to the suffering of the victim.
The Trial Judge stated in his findings after a penalty hearing that Michelle Gordon was held captive, alone and afraid, bound hand and foot, was tortured, mutilated, and that she experienced terror, fear, pain, and hopelessness before she died. He also stated the related cases of Catherine DiMauro and Shirley Ellis showed they were tormented and murdered in a similar fashion.
The evidence, photographs of the victims and testimony, Medical Examiner’s conclusions, shows that Gordon, as well as the related victims, were tortured while bound and helpless before their deaths. This infliction of extreme pain was beyond that necessary to accomplish the underlying killing. The perpetrator must have sensed a pleasure in the killings, if as the State claims that these were serial killings, killings that were done by one person. Since he did not commit just one, but continued the same depraved manner on the others, this pleasure is evident.
Again, the record supports the Judge’s findings that evidence established beyond a reasonable doubt that these murders were outrageous or wantonly vile, inhuman, in that it involved torture. The factual circumstances of these crimes plainly suggests that the trial Judge’s findings of these two statutory aggravating circumstances should be upheld.
The Trial Judge, after concluding that aggravating factors indeed existed, then found mitigating factors, even though none were offered. The Trial Judge drew on his knowledge of the case to conclude that the defendant has a supportive family, and that until these incidents had been a substantial provider for his family, as well as a father, a husband, and a son.
After weighing these two factors, along with the circumstances of the crimes, and the character, record, an propensities of the defendant, he concluded that the aggravating circumstances, along with the circumstances of the crime, clearly outweighed the mitigating factors.
This determination was not made in an arbitrary or capricious manner, but according to the Laws of Delaware, a reasonable trier of the facts would conclude the same.
The Trial Judge’s decision was competently made through his use of specific and detailed guidance and training throughout his career. As he did before the penalty hearing, and during the hearing, the trial Judge acted cautiously, and exercised judgment in concluding that since the aggravating factors outweighed the mitigating factors, and that the imposition of the death penalty was appropriate in this case. The sentence was a matter within sound discretion of the Trial Judge, that was not beyond statutory or Constitutional limits, and should not be reversed by this Court.
In determining whether a sentence imposed was arbitrarily or capriciously, this Court needs only to review that the statutory scheme or procedure to ensure that it was not. Our statute was modeled after the Georgia Death Statute which the U.S. Supreme Court upheld because it suitably directed and limited so as to minimize wholly arbitrary and capricious action.
This determination, plus the record, reflects the Trial Judge did not impose in any unreasonable manner; that it was indeed fair, solid, and with adequate determination resting on substantial cause.
The final determination for this Court is whether the sentence is disproportionate to the penalties imposed in similar cases conducted under the Delaware Statute. In comparing this case to the others in Delaware’s universe of cases, which was established in Flamer, Riley and Dawson, this Court will find again an unrevoked, cold-blood murder of a person or persons who lacked the ability to defend themselves.
Two objective criterias should be used by this Court in making this determination. One, the gravity of the crime; and, two, the sentences imposed in other death penalty cases.
In addressing the gravity of the offense first, it has been established that these women were tortured, exposed to physical and mental anguish far beyond that accompanying a normal death. The trial Judge stated that these crimes were the most egregious as possible. That the enormity of these two crimes, their cold premeditation, and their cowardice execution, clearly outweigh any mitigating factors.
This case, similar to other death penalties cases, goes even one step further, considering the way the circumstances were repeated again, and again, and again.
The gravity of this offense is within the category of extremely serious crimes for which prosecutors constantly seek, and juries constantly impose, the death penalty.
As this Court stated in Whalen, and is appropriate here, given the Death Statute, requiring a reckless state of mind, which can be proved by intentional conduct, and the facts of this case, one could hardly say that a death penalty is disproportionate.
And, gentlemen, that’s my position on this whole thing. It is also my position that I hope this Court will affirm the decision by showing that it was not arbitrarily or capriciously imposed, and that the imposition was not disproportionate to sentences imposed in other cases.
Matter of fact, it — in my opinion of this case comparing this case to the others, the others might be disproportionate.
So, gentlemen, that’s my position.
JUSTICE CHRISTIE: Very well, your remarks have been noted. We will now hear from the State.
MR. FAIRBANKS: May it please the Court. It is perhaps an unusual and, frankly, unique position to be here before this Court in the case in which the State and the defense are in total agreement. This Court’s automatic review is set forth by statute and its limited review.
This Court essentially is asked to answer two questions. One, whether or not the statutory aggravating circumstances found by the Trial Judge, ultimate sentencer in this particular case, was proven beyond a reasonable doubt. And, two, whether there’s evidence of arbitrariness or capriciousness in the imposition of the death penalty, or was it disproportionate.
I think the answer to all of these questions is clear. Steven Pennell appears before this Court having been convicted in this particular case by plea of nolo contendere of two first degree murders involving two women Kathleen Meyer and Michelle Gordon.
He also stands before this Court having been convicted of the brutal killing of two other women, Shirley Ellis and Catherine DiMauro.
All of these crimes, and certainly with the possible exception of Miss DiMauro, whose body was in no condition for us to determine precisely the manner of her death, these women were all tortured, and these killings were all deliberate instances in which Mr. Pennell went out, obtained and sought — looked after these women, brought them into his van, or other vehicle, took them off, tortured them, mutilated them, in a undescribably horrible and cold, calculating way, and then finally killed them.
The one victim in this case, Michelle Gordon, is perhaps the luckiest in a strange way. She died under torture, and so that the ultimate and complete act of torture that Pennell had planned for her was — as evidenced by his conduct with Ellis and DiMauro, was not fully completed, and that he ultimately mutilated her in part after her death. However, what is clear is that these were very violent, serious serial killings.
To move on quickly to the statutory review process by this Court, the first case this Court is asked to determine whether or not the statutory aggravating circumstances were found beyond a reasonable doubt. There can be no question that both the statutory aggravating circumstances found in this case were established beyond a reasonable doubt.
First of all, the first statutory aggravating circumstance which applies to both Gordon and Meyer, was that during the during a course of conduct, Mr. Pennell’s conduct resulted in the death of two or more people. That’s clear.
As the State’s expert in the original trial, which was made part of the record in this Court, made clear, these crimes, including the Gordon crime, was part of a serial killing. It was all done by the same individual, done in pattern, with a single individual responsible for — for all of these killings.
So that there’s no question, and indeed his conviction by plea of nolo contendere established in this particular case, as this Court ruled in Bailey, that there were a course of conduct involving more than— two or more people.
The second statutory aggravating circumstance, and this applies only to Gordon, because Meyer, the body unfortunately was decomposed to a point in which we could not fully determine what occurred to her. Gordon, the medical testimony was that she, in effect, had been frightened to death. Mr. Pennell had started to engage in torture, had beaten her; however, because she had some cocaine in her system, her heart, with the added adrenaline, caused by the torture that he was undertaking upon her, she had been bound, and then beaten severely on the buttocks, that her heart simply gave out. She died, quite literally, under torture. There is no question that someone who is killed in such a manner has committed a crime in an utterly vile, horrible and inhuman manner that involved torture. And it is that statutory aggravating circumstance that the State established, and is that statutory aggravating circumstance which is clearly Constitutional.
The second prong of this Court’s analysis is whether or not the sentence was imposed in an arbitrary, capricious manner, or whether it was disproportionate.
The evidence here is fairly clear. There is no evidence on this record of arbitrariness or capriciousness in the Trial Court’s conduct. As Mr. Pennell points out, at every point during this proceeding, the Trial Judge gave Mr. Pennell the benefit of the doubt. He looked ultimately at the nature and consequences of these crimes, and in fact went further than Mr. Pennell did in expressly finding statutory — excuse me, nonstatutory mitigating circumstance to which Mr. Pennell offered no evidence. But that the Trial Judge had in the record as a result of the prior trial, and prior penalty hearing. As to proportionality, the evidence is quite clear.
This case is a little different for two reasons. One, serial killing of this nature, and torture of this nature, is fairly unique. Fortunatély, unique in the eyes of the Delaware Death Penalty Statute, this Court has not had to face this type of crime. It is unique, but not disproportionate.
Secondly, this case is somewhat unique, because Mr. Pennell has gone through now two penalty hearings. In the first penalty hearing, the jury was unable to agree on the death penalty and thus he was sentenced to life for the death of Ellis and DiMauro.
This second penalty hearing is not disproportionate to that penalty hearing which is part of the universe upon which this Court is directed to examine. Because now he stands — there are significant differences. Now he stands convicted, not of two murders, but of four murders. All done in essentially the same manner, in serial fashion, having gone out, secured victims, bound them up, tortured them, and killed them. There is no question that these are proportionate in any real sense of the word.
This Court has noted that comparing capital case is like comparing proverbial apples and oranges. That is particularly true in this case. This case is unique, but this case is one which as the Trial Judge found is so horrible, is from a defendant who has committed so many murders, that there is but not one answer to that question and that is that it is proportionate to all sentences imposed in death in this state.
I have nothing further. Thank you, Your Honor.
JUSTICE CHRISTIE: Mr. Pennel, do you have further remarks you wish to make to the Court.
MR. PENNELL: Yes, I do.
JUSTICE CHRISTIE: You may come forward and make them.
MR. PENNELL: I will be very brief on my remarks in reply. It’s been my position, as this Court knows, that I do not oppose the death penalty in this case that I rather sought the penalty myself. It was my decision, which the Court checked, and decided that it was willing, and it was an intelligent decision, to put a plea in in nolo contendere, and allow the death penalty to go forward.
It is my hope that this Court will affirm this decision without a delay, and for that reason, as this Court well knows, I have put a motion in. Just to add to the record, that I am competent, that I am intelligent enough to make a decision to waive any and all rights that I may have within the State, and within the United States Courts.
It is my request, my wish, to go further — to go on with this as quickly as possible, and not to take up any more of this Court’s time.
I will ask if the Court does have any questions concerning the motion, I would be willing to answer it now, or we could just let the Trial Judge handle it once the case, if affirmed, is remanded back for resentencing.
JUSTICE CHRISTIE: The Court has no questions. Your remarks are noted. The Court will take this case under consideration. You may be seated.
MR. PENNELL: Thank you, gentlemen.
JUSTICE CHRISTIE: The Court will announce a decision promptly in connection with this matter, and the Court will stand adjourned.
(Recess taken at 2:25 p.m.)
State of Delaware:
SS:
New Castle County
I, Julie A. Chapin, Official Court Reporter of the Superior Court, State of Delaware, do hereby certify that the foregoing is an accurate transcript of the testimony adduced and proceedings had, as reported by me in the Supreme Court of the State of Delaware, in the case therein stated, as the same remains of record in the Office of the Prothonotary at Wilmington, Delaware, and that I am neither of counsel nor kin to any party or participant in said action nor interested in the outcome thereof.
WITNESS my hand this 14th day of February A.D., 1992.
Julie A. Chapin, RPR-CM Official Court Reporter
On November 4, 1991, this Court entered an order staying the execution of the sentences of death imposed by Superior Court. That order, as amended on November 6, 1991, provides that the stay of execution shall remain in effect "until the completion of this Court’s judicial review of the pending appeal.”
A videotaped record of the February 11, 1992 oral argument is on file with the Clerk of this Court.
Oral argument was originally scheduled for February 4, 1992. However, due to a death in the immediate family of Pennell's original "stand-by" attorney, that argument was postponed. Oral argument was rescheduled for February 11, 1992, following a remand of this case to the Superior Court to appoint a substitute “stand-by” attorney for Pennell. The record reflects that Pennell had no objection to the appointment of substitute "stand-by" counsel and requested pro se that oral argument be rescheduled as soon as possible by this Court.
The Superior Court’s order specifically asked the psychiatrist who had been appointed to conduct the independent psychiatric examination of Pennell to determine the following: 1.The defendant’s ability to understand the dangers of representing his own interests at trial; 2. The defendant’s ability to understand the roles of the various participants in the trial, including prosecution, judge and jury; 3. The defendant’s ability to understand court procedure; 4. The defendant's ability to appreciate the charges against him; 5. The defendant’s ability to appreciate the range and nature of possible penalties, including, most importantly, the possible sentence of death with regard to the Murder First Degree charges; 6. The defendant’s ability to understand the purposes of a guilt phase and penalty phase of a First Degree Murder trial and his right to have a jury or a judge determine both guilt and sentence; 7. The defendant’s ability to present to a jury, or the Court, available pertinent facts concerning the offense; 8. The defendant’s ability to testify relevantly; and 9. The defendant’s motivation for desiring to offer a "no contest" plea to this charge.
At the August 20, 1991 hearing on Pennell’s motion to proceed pro se, Pennell had indicated that he had no objection to the appointment of "stand-by” counsel and would be willing to consult "stand-by” counsel on procedural matters.
This attorney had represented Pennell during his earlier trial and the appeal which followed. State v. Pennell, Del.Supr., 602 A.2d 48 (1991). Pennell had agreed to this limited appointment of counsel during the August 20, 1991 hearing in the Superior Court. .On August 30, 1991, while the Superior Court had Pennell’s motion to proceed pro se under advisement, with the assistance of appointed counsel, Pennell was arraigned and entered pleas of not guilty to each charge of Murder in the First Degree.
Chief Justice Andrew D. Christie will retire on February 29, 1992. Therefore, the time in which to file motions for reargument in several pending matters, including this one, has been abbreviated to seven (7) days pursuant to a separate order.