161 F.3d 370 (6th Cir. 1998), 96-1198, DeLisle v. Rivers

Docket Nº:96-1198.
Citation:161 F.3d 370
Party Name:Lawrence DeLISLE, Petitioner-Appellant, v. Jessie RIVERS, Warden, Respondent-Appellee.
Case Date:November 30, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 370

161 F.3d 370 (6th Cir. 1998)

Lawrence DeLISLE, Petitioner-Appellant,

v.

Jessie RIVERS, Warden, Respondent-Appellee.

No. 96-1198.

United States Court of Appeals, Sixth Circuit

November 30, 1998

Argued June 17, 1998.

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[Copyrighted Material Omitted]

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Peter J. Van Hoek (argued and briefed), State Appellate Defender Office, Detroit, Michigan, for Petitioner-Appellant.

Arthur E. D'Hondt, Office of the Attorney General, Habeas Corpus Division, Lansing, MI, Jeffrey W. Caminsky (argued and briefed), County of Wayne Prosecutor's Office, John D. O'Hair (briefed), Detroit, Michigan, for Respondent-Appellee.

Before: MARTIN, Chief Judge; MERRITT, KENNEDY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which KENNEDY, NELSON, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined. MERRITT, J. (pp. 389-396), delivered a separate dissenting opinion, in which MARTIN, C. J., DAUGHTREY, COLE, CLAY, and GILMAN, JJ., joined. MOORE, J. (pp. 396-397), delivered a separate dissenting opinion.

OPINION

RYAN, Circuit Judge.

Lawrence DeLisle was convicted in a Michigan state court of the premeditated murder of his four children and the attempted murder of his wife. When his appeals within the Michigan appellate courts proved fruitless, he filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging numerous constitutional defects in his conviction. The district court denied DeLisle's application. DeLisle now renews his argument that he was denied due process, alleging: (1) some of the members of the jury that convicted him were biased; (2) the evidence against him was insufficient to prove premeditation and intent; and (3) the trial court improperly denied his request for a bench trial. For the reasons that follow, we affirm the judgment of the district court.

I.

A.

On August 3, 1989, shortly after 9:00 p.m., with his wife and four children as passengers, Lawrence DeLisle drove the family's station wagon down Eureka Road in Wyandotte, Michigan, at an increasingly high rate of speed, through a barrier of two wooden posts, and into the Detroit River. Although DeLisle and his wife, Suzanne, survived the incident, all four of their children--Bryan, Melissa, Kathryn, and Emily--drowned.

A few days later, at the request of Wyandotte police, DeLisle agreed to take a polygraph test, and accordingly, at about 7:30 a.m. on August 10, he was taken to a Michigan State Police facility. The exam began shortly after 10:00 a.m., and continued until about 5:30 p.m., with a break of an hour or so for lunch. These sessions were videotaped. At about 6:00 p.m., DeLisle was arrested and taken back to the Wyandotte police station. An audiotaped interrogation then began at approximately 10:45 p.m., and lasted until 1:00 a.m. During this interrogation, DeLisle "made statements which purportedly constitute

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a confession that he intentionally drove the family car into the river." People v. DeLisle, 183 Mich.App. 713, 455 N.W.2d 401, 402 (Mich.Ct.App.1990). His statements were rambling and confused, but representative of the most arguably inculpatory portions are the following:

I had a little cramp and I just egged it on.... As I was going down I just couldn't slam on the brakes. I didn't want to....

...

I just wanted to give, um, just scare my wife enough to slam on the brakes, come to a skidding halt and get her all upset.... Just let me be. I couldn't stop accelerating. I didn't.

When asked what he thought "should happen to [him] ... now," DeLisle replied, "Electrocution. Gas chamber, hang me. I don't care. I don't deserve to live."

In addition to his statements regarding the August 3, 1989, incident, DeLisle told police that eight years earlier he had attempted to blow up his home by leaving a candle burning near a gas leak in the basement while his wife and son were asleep. He stated that he wanted to "[j]ust blow up everything in [his] past." His statements about this incident included the following exchange:

[Q]: Did you know your little baby was in there?

[A]: Yes.

[Q]: And you know that the thing would have blown your baby up with it ...?

[A]: That's why I stayed for a half hour. Because I wanted to go.

On the day following his interrogation, DeLisle was arraigned on four counts of first-degree murder and one count of attempted first-degree murder, pursuant to Mich. Comp. Laws §§ 750.316, 750.91. DeLisle's admissions were widely publicized by the media, which based the stories on the accounts of Wyandotte police representatives. On August 12, 1989, newspapers around the country reported that DeLisle had confessed to intentionally driving his family into the Detroit River, and had been arraigned on multiple murder charges. Local newspapers later reported the story under such headings as "Prosecutor: DeLisle tried twice." And an article published in the November 10, 1989, edition of the Detroit Free Press stated that, according to the prosecution and the police, DeLisle had confessed both "to trying to blow up his house in 1981 while his wife and infant son slept," and to "purposely dr[iving] into the river to ease himself of financial burdens."

At the preliminary examination, in making the decision to bind DeLisle over for trial, the district judge relied in part on the videotape and audiotape of the August 10 interrogations. The judge, however, did not make those exhibits part of the record, as would usually have been done. Instead, the judge reviewed them in camera.

Not satisfied with secondhand police accounts of DeLisle's statements, certain members of the media filed suit demanding access to these exhibits. Both the prosecution and DeLisle resisted this demand, but in September 1989, one judge of the Detroit Recorder's Court--which at the time had jurisdiction--concluded that the First Amendment required that the media have access to the exhibits in question, and that a release would not pose "any great potential risk" to the defendant's right to a fair trial.

DeLisle's attorney immediately obtained a stay of the Recorder's Court order from the Michigan Court of Appeals, which court then remanded the case to the Detroit Recorder's Court to allow a record to be developed. The order further provided that the state district court judge in Wyandotte who had conducted the preliminary examination should make specific factual findings as to the extent to which he relied on the video- and audiotapes in binding DeLisle over for trial, and as to whether a release would prejudice DeLisle's right to a fair trial. In October 1989, accordingly, the state district court issued findings that it had relied on the exhibits "in determining whether or not the crimes charged had been committed and whether there was probable cause to believe the Defendant committed them," but that the tapes "contain[ed] statements prejudicial to the Defendant," which statements "may be inadmissible at the trial." It further concluded that "[t]here is a substantial probability

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that the Defendant's right to a fair trial would be prejudiced by public airing of [the tapes] before trial," and that "[r]easonable alternatives to closure would not adequately protect the Defendant's fair trial rights because of the high degree of publicity of this case and because the material which the Court has sealed are statements or confessions of the Defendant ... which may be inadmissible at trial."

Again, however, the Recorder's Court judge disagreed, holding that the district court's order was "conclusory" and not sufficiently specific to merit a prior restraint. It was the Recorder's Court judge's view that "[n]otwithstanding extensive pretrial publicity, empirical data demonstrates that there remains a high probability of seating a jury capable of rendering a fair and impartial verdict."

DeLisle appealed, and in late November 1989, the Michigan Court of Appeals vacated, in part, the Recorder's Court's order. There was, the court of appeals held, no constitutional requirement that the media have unlimited access to or opportunity to copy the tapes or transcripts of the tapes. However, there was a right on the part of the media "to attend criminal proceedings, including preliminary examinations, and to report what they have observed." Further, the court concluded that DeLisle had not shown "that there is a substantial probability that his right to a fair trial w[ould] be prejudiced by publicity that closure would prevent, or that reasonable alternatives to closure would not adequately protect his fair trial rights." Therefore, the court of appeals ruled, "The Recorder's Court shall ... allow limited public access to the exhibits in a manner reasonably calculated to put interested members of the public in the position they would have been in if the district court had reviewed the exhibits during the preliminary examination in open court." The Michigan Supreme Court denied leave to appeal.

While the media lawsuit was moving between the Recorder's Court and the Michigan Court of Appeals, the Wayne County Circuit Court assumed jurisdiction of the prosecution, pursuant to the state district court bind-over. DeLisle had moved in a timely fashion to suppress the fruits of the interrogation, and on December 21, 1989, more than six months before the ultimate June 1990 trial date, the circuit judge agreed that DeLisle's statements to the police had not been made voluntarily. Accordingly, he ordered their suppression. In a pretrial appeal taken in early January 1990, the trial court's decision was affirmed by the Michigan Court of Appeals. DeLisle, 183 Mich.App. 713...

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