7.0 hours cle credit including 3.0 hours of enhanced...

C L ED •S •B• ACONTINUING LEGAL EDUCATION

DELAWARE STATE BAR ASSOCIATION

PRESENTS

Property of Delaware State Bar AssociationPermission required to reproduce

Co-Sponsored by The Delaware State Bar Association and the Delaware Bar Foundation

Friday, October 28, 2016 • 8:20 a.m. – 4:30 p.m.

7.0 hours CLE credit including 3.0 hours of Enhanced Ethics for Delaware and Pennsylvania attorneys

Chase Center on the Riverfront 815 Justison St., Wilmington, DE

OFFICE AND TRIAL PRACTICE 2016

DSBACLE

FEATURED SPEAKER

GUEST AUTHOR

PROGRAM

Dean A. Strang is a lawyer in Madison, Wisconsin, best known for his work as one of Steven Avery's trial lawyers whose story was told in Netflix’s documentary, Making a Murderer. He has also written his first book, Worse Than the Devil: Anarchists, Clarence Darrow, and Justice in a Time of Terror. Mr. Strang served five years as Wisconsin’s first Federal Defender and cofounded Strang Bradley, LLC. He is an adjunct professor at Marquette University Law School, the Uni-versity of Wisconsin Law School, and University of Wisconsin's Division of Continuing Studies. Mr. Strang is a member of the American Law Institute and serves on several charity boards, including the Wisconsin Innocence Project. His second book will be published in early 2018.

The Office and Trial Practice Forum is an annual CLE offering focusing on practical and ethical topics which assist practi-tioners in the various duties of their firm or office. The featured speaker, Dean A. Strang, Esquire is a Wisconsin criminal attorney who’s representation of accused murderer, Steven Avery, resulted in his client’s conviction being overturned by the Wisconsin Supreme Court. Mr. Strang’s discussion of systemic injustice is accompanied by other discussions by distinguished speakers on the status of the death penalty in Delaware, professionalism, disability law, and authenticity in the workplace.

Dr. Karissa Thacker is a widely respected management psychologist who has served as a consultant in over 200 Fortune 500 com-panies including UPS, Best Buy, and AT&T. Her specialty is executive coaching with a focus on increased performance at work in combination with increased individual satisfaction at work. Her coaching method assumes that increases in effectiveness or produc-tivity without increasing personal satisfaction are not built to last. Karissa is the author of The Art of Authenticity, which debuted on 800-CEO-Read best seller list in the spring of 2016. She served as a senior consultant at RHR International, a global management consultancy specializing in executive development. She is the founder and president of Strategic Performance Solutions, Inc, a

management consulting firm focused on creating innovative solutions in the space of human performance and satisfaction at work. Dr. Thacker serves as adjunct faculty at the Lerner School of Business at the University of Delaware and is a regular contributor to Fast Company magazine.

FRIDAY, OCTOBER 28, 20168:20 A.M. – 4:30 P.M. Registration and Continental Breakfast begin at 8:00 a.m.



Co-Sponsored by the Delaware State Bar Association and the Delaware Bar Foundation


DSBACLE

Dean A. Strang, EsquireStrang Bradley, LLCFormer co-counsel for Steven Avery and featured in Making a Murderer

PROGRAM SCHEDULE

FRIDAY, OCTOBER 28, 20168:20 A.M. – 4:30 P.M. Registration and Continental Breakfast begin at 8:00 a.m.



Co-Sponsored by the Delaware State Bar Association and the Delaware Bar Foundation


8:00 a.m. – 8:20 a.m. | Registration and Continental Breakfast

8:20 a.m. - 8:30 a.m.Introductory Remarks The Honorable Andrea L. RocanelliJudge, Superior Court

8:30 a.m. – 9:30 a.m. Professionalism – A Critical Component to Successin the Legal Workplace Doneene Keemer Damon, Esquire Richards, Layton and Finger, P.A.C. Malcolm Cochran IV, EsquireRichards, Layton and Finger, P.A.Kathleen Furey McDonough, EsquirePotter Anderson & Corroon LLPTobey M. Daluz, EsquireBallard Spahr LLP

9:30 a.m. – 10:30 a.m. Professionalism and the Art of Legal Writing The Honorable Jack B. JacobsJustice, Delaware Supreme Court (retired)Joel Friedlander, EsquireFriedlander & Gorris, P.A.Jennifer Ying, EsquireMorris Nichols Arsht & Tunnell LLP

10:30 a.m. – 10:45 a.m. | Break

10:45 a.m. – 11:45 a.m. The Current State of Capital Punishment in Delaware The Honorable Paul R. WallaceJudge, Superior Court

11:45 a.m. – 12:45 p.m. Professionalism: A View from the Federal Bench The Honorable Richard G. AndrewsJudge, United States District CourtThe Honorable Sherry R. FallonMagistrate, United States District Court

12:45 p.m. –1:30 p.m. | Lunch (Provided)

1:30 p.m. – 2:30 p.m. Considering Systemic Injustice in Light of Making a Murderer Dean A. Strang, EsquireStrang Bradley, LLCIntroduced by Yvonne Takvorian Saville, EsquireWeiss & Saville, P.A.

2:30 p.m. – 3:00 p.m. The Changing Face of American Legal Education Rodney A. Smolla, EsquireDean, Widener University Delaware Law School

3:00 p.m. – 3:30 p.m. Disability Law and Inequality: From Theory to PracticeRobert L. Hayman, Jr., EsquireEmeritus Professor, Widener University Delaware Law School

3:30 p.m. – 3:45 p.m. | Break

3:45 p.m. – 4:45 p.m. Authenticity in the WorkplaceDr. Karissa ThackerAuthor of The Art of Authenticity

4:45 p.m. – 5:30 p.m. Book Signing by Dr. Thacker Books will be available for purchase before and after the seminar at the Barnes and Noble table.

DSBACLE

Introductory Remarks

The Honorable Andrea L. RocanelliJudge, Superior Court

The Honorable Andrea L. Rocanelli

The Honorable Andrea L. Rocanelli was appointed to the Superior Court of the

State of Delaware by Governor Jack A. Markell on June 5, 2013. Previously, Judge

Rocanelli served as a judge of the Court of Common Pleas by appointment of

Governor Markell on April 21, 2009.

In the Court of Common Pleas, Judge Rocanelli was responsible for the Court’s

Drug Diversion Program in New Castle County and was a founding member of the

Delaware coalition involving community health and law enforcement to identify

alternative approaches to addressing prostitution in the community. Judge

Rocanelli was appointed as a Commissioner of SENTAC as a representative of the

Court of Common Pleas.

By appointment of the Delaware Supreme Court, Judge Rocanelli serves as a

member of various commissions and committees, including the Delaware

Commission on Continuing Education and as the judiciary’s representative to the

State Council for Interstate Adult Offender Supervision. Judge Rocanelli

previously has served as a member of the Permanent Advisory Committee on the

Delaware Uniform Rules of Evidence, and on committees of the Delaware State

Bar Association, including the DSBA Committee on Access to Justice in CCP

Consumer Debt Collection Actions and the DSBA Committee on Diversity. Judge

Rocanelli is a member of the Rodney Inn of Court, serving on the Executive

Committee for a number of years and as President.

In 2013, Judge Rocanelli was recognized with the Judicial Partnership Award by

the Delaware Division of Substance Abuse and Mental Health, awarded to a leader

who advances the causes of individuals challenged with mental health and/or

substance abuse disorders. In 2010, Judge Rocanelli was recognized by the

Delaware Bar Association with the Women’s Leadership Award, awarded to a

member of the Delaware Bar whose character, strength, personality, achievement

and activities in matters affecting women lawyers have served as an inspiration to

and a model for women lawyers in their professional careers. In August 2009,

Judge Rocanelli was recognized by the ABA Commission on Lawyer Assistance

Programs with an award for her outstanding contribution to the bench, bar and

public through efforts to maintain the integrity of the legal professions and

improve the quality of life for lawyers.

Judge Rocanelli received her J.D. from Harvard Law School, and her B.A., summa

cum laude, from Boston College. After several years of private practice in Boston,

Judge Rocanelli practiced law in Delaware with the firm of Morris, Nichols, Arsht

& Tunnell. Judge Rocanelli served as Chief Counsel of the Office of Disciplinary

Counsel for the Delaware Supreme Court, with responsibility for the practice of

law and legal ethics in the state of Delaware.

Judge Rocanelli’s present term ends June 4, 2025.

Professionalism – A Critical Component to Successin the Legal Workplace

Doneene Keemer Damon, Esquire Richards, Layton and Finger, P.A.

C. Malcolm Cochran IV, EsquireRichards, Layton and Finger, P.A.

Kathleen Furey McDonough, EsquirePotter Anderson & Corroon LLP

Tobey M. Daluz, EsquireBallard Spahr LLP

DONEENE KEEMER DAMON, executive vice president of the firm, focuses primarily on formation and operational issues relating to Delaware statutory and common law trusts in all types of commercial and business transactions, representing issuers, underwriters, investors, and trustees. Doneene also represents banks and trust companies in connection with their trust and agency services under Delaware and New York law in various commercial transactions, including their roles as trustee, collateral agent, custodian, master servicer, depository agent, and exchange agent.

Doneene’s varied corporate trust transactional practice includes asset-backed securities, including auto loans and leases, credit cards, student loans, residential mortgages, home equity loans, equipment leases, litigation settlements, insurance policies, and intellectual property; royalty trusts; liquidation trusts; and voting trusts. Doneene is also experienced in capital securities and hybrid capital securities; mutual funds, exchange traded funds, and private equity funds; and collateralized loan obligations, cross-border leasing transactions, project finance transactions, and defeasance transactions. In addition, Doneene represents health-care clients in all types of commercial and transactional matters, including the purchase and servicing of health-care receivables and the issuance of tax-exempt bonds.

Representative Experience

• Asset-backed securities, including auto loans and leases, credit cards, student loans, residential mortgages, home equity loans, equipment leases, litigation settlements, insurance policies and intellectual property

• Capital securities

• Hybrid capital securities

• Collateralized loan obligations

• Cross-border leasing transactions

• Mutual funds and exchange traded funds

• Health care receivables

• Liquidation trusts

• Voting trusts

• Independent director and independent manager

• Private equity funds

• Defeasance transactions

Publications

• “The Alphabet Soup of the Federal Crisis Programs,” Bloomberg Law Reports, July 2009

• “The Role of the Trustee,” Practising Law Institute

Doneene Keemer [email protected]: 302.651.7526Fax: 302.498.7526

One Rodney Square920 North King StreetWilmington, DE 19801

Professional Recognition

• National Association of Professional Women, VIP Woman of the Year Circle, 2015-2016

• Jean Allard Glass Cutter Award, American Bar Association, Business Law Section, 2015

• American Bar Foundation Fellow

• American College of Commercial Finance Lawyers Fellow

• Chambers USA

• The Best Lawyers in America

• National Diversity Council Leadership Excellence in the Law Award 2014

• Pennsylvania Diversity Council, 2014 Leadership in Law Honoree

• Temple University Beasley School of Law Gallery of Success, 2014 Honoree

• The International Who’s Who of Women Lawyers

• The International Women’s Review Board for Excellence in Law

• YWCA Trailblazer Award

LeadershipIn addition to her leadership roles in the firm as a member of the Executive Committee and chair of the Diversity Committee, Doneene holds leadership positions in many organizations, including:

• American Bar Association - Business Law Section

• The Business Lawyer, Editorial Board

• Committee on Trust Indentures and Indenture Trustees, Former Chair

• Committee on Corporate Director Diversity, Former Co-Chair

• Banking Law Committee

• Diversity Committee, Lawyers of Color Subcommittee Chair

• Section Sponsorship Task Force, Chair

• Securitization and Structured Finance Committee, Vice Chair and Director for Diversity

• UCC Committee

• Committee on Partnerships and Unincorporated Business Organizations, Membership and Diversity Co-Chair

• Commission on Women, Liaison

• Structured Finance Industry Group

• Trustee Subforum

• Outside Counsel Subforum

• Women in Securitization, Mentor Subcommittee, Co-Chair

• Delaware State Bar Association

• Advisory Board, Multicultural Judges and Lawyers Section

• Carpenter-Walsh Delaware Pro Bono Inn of Court

• Christiana Care Health System, Inc. and Health Services, Inc., Board of Directors

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• Delaware Community Foundation, Board of Directors

• Lawyers Committee for Civil Rights Under Law, Board of Trustees

Education

• J.D., cum laude, Temple University School of Law, 1992

• B.S., Accounting, cum laude, St. Joseph’s University, 1989

Admitted to Practice

• Delaware, 1992

• District of Columbia, 1994

• New York, 2012

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Office and Trial Practice Seminar on ProfessionalismProfessionalism - A Critical Component to

Success in the Legal Workplace

Doneene Keemer Damon – Richards, Layton & Finger, P.A., moderatorC. Malcolm Cochran IV – Richards, Layton & Finger, P.A.Toby Daluz – Ballard Spahr LLPKathleen McDonough – Potter Anderson & Corroon LLP

October 28, 2016

1

What is Professionalism?

• Defined by the Merriam-Webster Dictionary as:

• the skill, good judgment, and polite behavior that is expected from a person who is trained to do a job well

2

Professionalism and The Delaware Lawyer

• The Delaware State Bar Association and The Delaware Supreme Court jointly adopted the Principles of Professionalism which became effective November 1, 2003• Not intended to establish minimum standards of

professional care or competence or as altering a lawyer’s responsibilities under the Delaware Lawyers’ Rules of Professional Conduct• Purpose of Principles of Professionalism is to promote

and foster ideals of professional courtesy, conduct and cooperation 3

Professionalism and The Delaware Lawyer

• Requires:• Integrity• Compassion• Learning• Civility• Diligence• Public Service

4

Principles of Professionalism for Delaware Lawyers

• In general, lawyers should develop and maintain qualities of integrity, compassion, learning, civility, diligence and public service that mark the most admired members of our profession• A lawyer should provide an example to the community in

these qualities and should not be satisfied with minimal compliance with mandatory rules governing professional conduct• Applies to office practice and to litigation

5

Principles of Professionalism for Delaware Lawyers - Integrity

• Integrity – personal integrity is the most important quality in a lawyer. • Requires:• Personal conduct that does not impair the rendering

of professional service of the highest skill and ability• Acting with candor – both in the expression of truth

and the refusal to mislead others in speech and demeanor

• Preserving confidences• Treating others with respect• Acting with conviction and courage in advocating a

lawful cause6

Principles of Professionalism for Delaware Lawyers - Compassion

• Compassion – respect for the personal dignity of all persons• A lawyer should treat all persons, including adverse

lawyers and parties, fairly and equitably and should refrain from acting upon or manifesting racial, gender or other bias or prejudice toward any participant in the legal process

7

Principles of Professionalism for Delaware Lawyers - Learning

• Learning – a lawyer’s commitment to learning involves academic study in the law followed by continual individual research and investigation in those fields in which the lawyer offers legal services to the public

8

Principles of Professionalism for Delaware Lawyers - Civility

• Civility – professional civility is conduct that shows not only respect for the courts and colleagues, but also for all people encountered in practice• Requires respect – promptness in meeting appointments,

consideration of others, responding to communications, resisting personal attacks

9

Principles of Professionalism for Delaware Lawyers - Diligence

• Diligence – a lawyer should expend the time, effort and energy required to master the facts and law presented by each professional task

10

Principles of Professionalism for Delaware Lawyers – Public Service

• Public Service – a lawyer should assist and substantially participate in civic, educational and charitable organizations• A lawyer should render substantial professional services

on a charitable, or pro bono, basis on behalf of those persons who cannot afford adequate legal assistance

11

Principles of Professionalism for Delaware Lawyers – Businesslike Office Practices

• Develop business plans that address appropriate objectives as well as changing economic, industry, and regulatory environments.

• Clearly define areas of responsibility. Assign responsibility and delegated authority to deal appropriately with the firm’s goals, objectives, operating functions and regulatory requirements.

• Establish performance objectives and provide regular appraisals to all employees. Specify the level of competence needed for particular jobs in requisite skills and knowledge requirements. Communicate clearly to all personnel the responsibilities and expectations for their activities. 12

Principles of Professionalism for Delaware Lawyers – Businesslike Office Practices

• Establish open communication channels to facilitate the flow of information throughout the firm and to those who need the information. Consult with individuals who have the expertise to make informed decisions.

• Provide the appropriate training, cross-training, and resources to help personnel perform their duties successfully. Assign duties to individuals who have been properly trained, can make sound judgments, do not have conflicting duties, and fully understand what is expected.

• Protect client information by establishing procedures that properly secure and dispose of confidential, sensitive and/or private information. 13

Professionalism – What Makes a Successful Law Office?

• A successful law firm leverages its strengths, invests in its people and always strives to meet and exceed its clients’ expectations

• Successful law firms embody the Principles of Professionalism for Delaware Lawyers

• Successful law firms have successful leaders

14


• Successful leaders have certain characteristics:• Intellectual horsepower• Credibility as a lawyer• Firm-mindedness• Fair-mindedness• Outstanding communication skills.

15


• Successful leaders:• Keep up to date with not only law firm management

best practices, but also study the history of law firm successes and failures.

• Aggressively recruit lawyers who can ultimately complement the management skill sets of the firm; that is, a good leader is not tempted to “hire in his or her own image.”

• Identify and groom potential successors. • Have earned the trust of others in the firm.

16


• Successful leaders:• Lead by example• Build consensus around a short set of core values,

ones that are clearly defined and about which the firm is prepared to hold its people accountable.

• Understand that values guide our individual behaviors, and collective behavior creates culture.

• Make firm culture and values an integral part of every conversation and decision.

17


• Successful leaders:• Value those working for and with them. • Set expectations, keep lines of communication open

and have the flexibility to know when to go in another direction.

• Appreciate the contributions and role of others• Focus on the development of others and succession

planning• Create positive work environments

18


• We should always bear in mind that leaders and managers are not necessarily one and the same. • Leaders are not working alone; they are

working with others and helping to instill a vision.

19

Professionalism In General –What to do when things go south

• Consider the potential impact of your response and actions on your reputation and professional relationships• If another party proves difficult to work with:• Address communication breakdowns in real time; do

not accept rude or inappropriate conduct• Don’t take it personally

• Refer to the Principles of Professionalism for Delaware Lawyers:• http://courts.delaware.gov/forms/download.aspx?id=3

9428 20

For more than 25 years, Mike Cochran has focused his practice on the litigation and trial of complex business and other civil disputes. He is a skilled advocate who has represented a wide variety of clients, ranging from multinational and publicly traded companies to local Delaware businesses and institutions. His clients have also included state and local governments, prominent public figures, estates, individuals and many others.

Mike has substantial experience in the Delaware Court of Chancery, the Delaware Superior Court and the United States District Court for the District of Delaware. Recently, he has been engaged in a series of cases involving complex trade secret and restrictive covenant claims. Mike has litigated a wide range of other, complex business disputes, injury and death claims, civil rights claims, and many more.

Honored with several awards for his work on behalf of Delaware’s abused and neglected children, Mike is committed to pro bono work and serves as chair of the firm’s Pro Bono and Community Service Committee. He also heads the Litigation Department’s Commercial and Business Litigation Group. Representative Experience

• Incyte Corporation v. Flexus Biosciences: Ongoing representation in Delaware Superior Court (“CCLD”) of biosciences company in defense of trade secret and related claims arising in connection with the development of cancer immunotherapy medication.

• RCS Capital Corp. v. Lightyear Capital LLC: Defense of expedited litigation in Delaware Bankruptcy Court alleging breach of confidentiality and non-competition agreements.

• McDole v. City of Wilmington: Ongoing defense of civil rights litigation brought against City of Wilmington and four of its police officers in connection with the death of an individual during a 2015 incident.

• Revolution Retail Systems, LLC v. Sentinel Technologies, Inc.: Representation of technology company in defense of claims brought in Delaware Court of Chancery alleging breach of confidentiality, noncompetition, and licensing agreements.

• Michael Spinks v. Estate of Ronald E. “Butch” Lewis: Representation of the estate of internationally known boxing promoter Butch Lewis in the defense of claims brought in the Delaware Court of Chancery by former heavyweight champion Michael Spinks alleging breach of fiduciary duty and conversion.

• PCMS International Inc. v. 2295113 Canada, Inc.: Defense of trade secret, license and related claims in the Delaware Court of Chancery. Case involved complex computer software, contract and licensing issues.

• Teleglobe Communications Corp. v. BCE: Representation of subsidiaries of a major international telecommunications provider in the litigation of claims brought in the Delaware District Court and Bankruptcy Court relating to parent’s decision to withdraw funding. Case involved claims in excess of $500 million.

• Statoil Marketing and Trading (US) Inc. v. Western Refining Yorktown, Inc.: Representation of oil refiner in claims brought in the Delaware Superior Court arising from alleged breach of oil supply contract due to event of force majeure. Case involved claims in excess of $100 million.

• Hale v. City of Wilmington: Representation of the City of Wilmington and its

C. Malcolm [email protected]: 302.651.7506Fax: 302.498.7701

One Rodney Square920 North King StreetWilmington, DE 19801

police officers in a highly publicized civil rights case filed in the Delaware District Court, involving complex constitutional claims arising from the death of an individual as he was being taken into police custody.

• Occupy Delaware v. City of Wilmington: Representation of the City of Wilmington in the defense of civil rights claims brought in the Delaware Court of Chancery by the ACLU on behalf of Occupy Delaware, over the occupation of Peter Spencer Plaza in the City of Wilmington.

• Frontier Oil Corp. v. Holly Oil Corp: Representation of petroleum refiner in claims brought in the Delaware Court of Chancery arising from the alleged breach of a merger agreement. Case focused on the interpretation of a material adverse change provision in the merger agreement and on the doctrine of repudiation under Delaware law.

• DeBakey Corp. v. Raytheon Service Co.: Defense of joint venture partner in claims exceeding $50 million arising from failed venture for the development and sale of telemedicine systems. Case was tried in the Court of Chancery, resulting in a defense verdict.

• Evonik Stockhausen, Inc. v. Tyco Healthcare Group: Delaware counsel for plaintiff in Delaware District Court case involving claims exceeding $20 million arising from alleged breach of a commercial supply agreement.

• Chesapeake Corp. v. Shore: Representation of plaintiff in Delaware Chancery Court trial of claims arising from corporate control contest where defendants were found to have wrongfully adopted defensive measures in an effort to ward off corporate takeover.

• Emerald Partners v. Berlin: Representation of plaintiff in Delaware Chancery Court trial of claims for breach of fiduciary duty arising from a merger, resulting in Delaware Supreme Court decisions further defining the fiduciary duties of directors under Delaware law.

• VS&A Communications Partners L.P. v. Palmer Broadcasting Ltd. Pshp: Representation of defendant in the trial of an action brought in the Delaware Court of Chancery for specific performance of an asset purchase agreement for the acquisition of broadcast properties, resulting in defense verdict.

• Special Board Committees: Representation of a special litigation committee formed to investigate stock option vesting and related claims arising from the failed merger of two multinational telecommunications companies; representation of other special committees formed to investigate claims of misconduct by corporate officers and directors.

• Delaware Compensation Rating Bureau v. Insurance Commissioner of the State of Delaware: Representation of the Insurance Commissioner of the State of Delaware in litigation filed in the Delaware Court of Chancery regarding the Commissioner’s implementation of Delaware’s workers’ compensation reform statutes, forcing a statewide reduction in premium rates for Delaware businesses.

• Harden and City of Wilmington v. Christina School District: Representation of the City of Wilmington and individual plaintiffs in a Delaware Chancery Court case that resulted in the issuance of an injunction preventing school district from closing its elementary schools in the City of Wilmington.

• Keefe Commissary Network, LLC v. The Delaware Department of Correction: Representation of commissary and financial services contractor in bid dispute with the Delaware Department of Corrections. This Chancery Court litigation forced a re-bid of the contract at issue.

• Christiana Care: Representation of Delaware’s largest hospital system

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and subsidiaries in various matters, including AAA arbitrations of disputes with health benefits providers, peer review proceedings, emergency guardianship and malpractice matters.

• Nanticoke Hospital: Ongoing general representation.

• Townsend Fire Company v. VFIS: Representation of local fire company in Delaware Superior Court case seeking insurance coverage for damages resulting from the collapse of its fire hall during blizzard of 2010.

• PHB v. Travelers Insurance Company: Representation of local building contractor in insurance coverage dispute resulting from concrete failures.

• Liggett Group Inc. v. Affiliated FM Insurance Company, et al.: Representation of Reliance Insurance Company in Delaware Superior Court coverage action brought by tobacco companies for coverage of tobacco health-related lawsuits.

Recent Publications

• “Delaware’s Two Courts for Trade Secrets and Restrictive Covenants,” ABA Commercial & Business Litigation, January 26, 2016

• Lobbying, PACs and Campaign Finance: 50 State Handbook, 2016 ed., Delaware chapter, 2016

• “The 2014 Amendments to the Expert Discovery Provisions of Superior Court Civil Rule 26: A Practitioner’s Read,” Delaware State Bar Association, February 2015

• “Delaware’s Business Courts: The Complementary Nature of the Court of Chancery and the Superior Court’s Complex Commercial Litigation Division,” Delaware State Bar Association, May 2014

• “But the Examination Still Proceeds: A Primer on Surviving the Difficult Deposition,” ABA Section of Litigation 2012 Section Annual Conference, April 18, 2012

• “The Delaware Superior Court’s Complex Commercial Litigation Division,” BNA’s U.S. Law Week, October 4, 2011

• “Court of Chancery Issues New Guidelines for the Preservation of Electronically Stored Information,” ABA Commercial and Business Litigation

• “The Delaware Corner: A New Forum for Complex Commercial Disputes,” ABA Commercial and Business Litigation

• “The Delaware Corner: Poison Pills and a New Judge,” ABA Commercial and Business Litigation

Panels and Presentations

• “Deposition Do’s and Don’ts,” Delaware State Bar Association, 20th Annual Rubenstein-Walsh Seminar, Wilmington, Delaware, February 6, 2015

• “Delaware: The “Go-to” Forum for Global Business,” SCG Legal, Washington, D.C., September 7, 2014

• “Delaware’s Business Courts: Recent Developments and Best Practices,” ABA Section of Litigation and Delaware State Bar Association, Wilmington, Delaware, May 16, 2014

• “Deposition Practice in Complex Cases: The Good, the Bad, and the Ugly,” ABA Section of Litigation, Section Annual Conference, Washington, D.C., April 18, 2012

• “Lessons from Tragedy: Legal, Professional and Ethical Issues Raised

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by Bradley and Beyond,” Widener University School of Law, Wilmington, Delaware, November 4, 2011

• “Leadership Fights and Multi-Jurisdictional Gamesmanship in Deal Litigation,” ABA Commercial and Business Litigation Committee, June 2, 2011

• “Children & Families First Honors Director Mike Cochran,” Wilmington, Delaware, November 15, 2010

• “The Ethical Dimensions of Deposition Practice,” 13th Annual Rubenstein-Walsh Seminar, Wilmington, Delaware, January 2008

• “Taking and Defending Effective Depositions in Delaware,” Lorman, Wilmington, Delaware, September 2007, 2008

Awards

• Christopher W. White Distinguished Access to Justice Commitment Award, Delaware State Bar Association, 2015

• Delaware Volunteer Firefighter’s Association President’s Award, 2014

• ABA Section of Litigation, Outstanding Subcommittee Chair, 2013-14

• Delaware Service to Children Award, 2012, Office of the Child Advocate for the State of Delaware

• J. Thompson Brown Award For Outstanding Contributions to Family Life In Delaware, 2010

Leadership• Co-Chair, Commercial and Business Litigation Committee, ABA Section

of Litigation

• Chair, Delaware Child Protection Accountability Commission (2006-2016)

• Co-Chair, Joint Committee on the Investigation and Prosecution of Child Abuse (2011-2013)

• Co-Chair, 147th Delaware General Assembly Task Force on the Funding of Ambulance and EMS Service in Delaware (2013-2014)

• Director, Delaware Bar Foundation

• Member, Delaware Superior Court Committee on Complex Civil Litigation

• Member, American Bar Association, Litigation and Business Law Sections

• Member, Delaware State Bar Association, Corporate Law and Litigation Sections

• Member, Delaware State Bar Association, Nominating Committee (2010-2012)

• Member, Delaware Child Death, Near Death, Still Birth Commission (2006-2016)

• Member, Governor’s Steering Committee on the Protection of Children (2010-2015)

• New Castle County Co-Chair, Combined Campaign For Justice (2014)

• Member, Delaware State Bar Association Musical Players

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Education

• J.D., Catholic University of America, Columbus School of Law, 1985

• B.A., University of Delaware, 1982

Admitted to Practice• Delaware

• United States District Court, District of Delaware

• United States Court of Appeals Third Circuit

• United States Supreme Court

Pro Bono Activities• Chair, Richards, Layton & Finger’s Pro Bono and Community Service

Committee

• Represents children in proceedings in the Delaware courts through Delaware’s Office of Child Advocate

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Kathleen Furey McDonough

Kathleen Furey McDonough has practiced law since 1985 with the

Wilmington, Delaware firm of Potter Anderson & Corroon LLP, and has

been a partner in the firm since 1993. Ms. McDonough is a 1985

graduate of the Temple University School of Law and graduated from

Saint Joseph’s University in 1979. Ms. McDonough is the head of the

Firm’s Labor and Employment Practice Group. Ms. McDonough also

represents secondary and post-secondary institutions with respect to

employment and education law issues. Ms. McDonough currently serves

on the Firm’s Executive and Diversity Committees.

DMEAST #27037419 v1

Tobey M. Daluz, Esquire

Tobey M. Daluz is a partner with Ballard Spahr LLP and handles corporate restructuring, workouts and

general bankruptcy litigation. She represents debtors, secured and unsecured creditors, insurers, indenture

trustees, and official committees in Chapter 11 bankruptcy cases. She also represents buyers of assets in

the context of sales under section 363 of the Bankruptcy Code.

Ms. Daluz is a member of the American Bankruptcy Institute and she is the founding Chair (now

member) of the Delaware Network of the International Women’s Insolvency and Restructuring

Confederation (IWIRC). She is a member of the Bankruptcy Law Section and Multicultural Judges and

Lawyers Section of the Delaware State Bar Association.

Ms. Daluz was appointed by the U.S. Court of Appeals for the Third Circuit to serve a three-year term on

its Lawyers Advisory Committee, which comments on proposed rules of the Circuit and serves as a

liaison between the court and legal community. Over the past decade, she has served on the Third

Circuit’s Merit Selection Panel and participated in the review and recommendation of candidates for five

Eastern District of Pennsylvania Bankruptcy Judge positions.

From 2011 to 2016, Ms. Daluz served on the firm’s Executive Management Committee as the Partner-in-

Charge of Attorney Career Advancement and was responsible for the recruitment, training, professional

development, compensation, and evaluation of nearly 275 non-partner lawyers. Effective July 1, 2016,

she was elected by her partners to serve a three-year term on the firm’s Board.

Ms. Daluz lectures both locally and nationally on the topics of bankruptcy and diversity in the legal

profession.

Professionalism and the Art of Legal Writing

The Honorable Jack B. JacobsJustice, Delaware Supreme Court (retired)

Joel Friedlander, EsquireFriedlander & Gorris, P.A.

Jennifer Ying, EsquireMorris Nichols Arsht & Tunnell LLP

JACK B. JACOBS

Before joining Sidley Austin LLP as Senior Counsel in October 2014, Jack B. Jacobs

served as a Justice of the Delaware Supreme Court since 2003 and as Vice Chancellor of the

Delaware Court of Chancery since October 1985. Mr. Jacobs holds an undergraduate degree

from the University of Chicago (B.A., 1964, Phi Beta Kappa), a law degree from Harvard

University (LLB., 1967), and an LLD (Hon.) from Widener University (2011).

Mr. Jacobs is also an Adjunct Professor of Law at the Law Schools of New York

University, Columbia University, Vanderbilt University, and the University of Pennsylvania. He

is a member of the American Law Institute (having formerly served as Advisor on the

Restatement (Third) of Restitution and currently on the Principles of the Law of Liability

Insurance Projects) and the Delaware and American Bar Associations. He also is Life Fellow of

the American Bar Foundation, and serves on the Advisory Boards of the University of

Pennsylvania Institute for Law and Economics, of the Harvard Corporate Governance Program,

and of the Rand Center for Corporate Ethics and Governance.

Mr. Jacobs has participated in academic symposia and continuing legal education

programs related to corporate and securities law sponsored by various law schools and

Continuing Legal Education organizations. He has authored (and co-authored) numerous law

review articles addressing various aspects of corporation law, mergers and acquisitions, and

corporate governance.

He has also guest lectured at numerous American and foreign law schools, and has

delivered (among others) the Distinguished Jurist Lecture at the University of Pennsylvania Law

School (March 2002); the Regent’s Lecture in Residence at the UCLA School of Law (January

2005); the Morrison & Foerster Lecture at Stanford Law School (February 2009); and was the

Distinguished Visiting Jurist at the Harvard Law School Corporate Governance Program (2008).

Mr. Jacobs has been an invited guest speaker at various international corporate law conferences,

including Hong Kong (October 2003); Seoul, Korea (November 2004); Tokyo, Japan (November

2005 and June 2010); Stockholm, Sweden(March 2006); Amsterdam, Netherlands (April 2006);

Sydney, Australia(April 2008); (Tel Aviv and Jerusalem, Israel (2008, 2012, and 2013); Oxford

University (England, 2008 and 2011); Singapore, (January 2014); and Salzburg, Austria

(October 2015)

Mr. Friedlander has over 20 years of experience litigating breach of fiduciary duty actions and contract disputes relating to the control of Delaware entities. The current edition of The Best Lawyers in America recognizes him as “Litigation – Mergers and Acquisitions ‘Lawyer of the Year’ for Wilmington, Delaware.” The current edition of Chambers USA designates him as Band 1 and states: “[He] is noted for his successful representation of high-profile clients.” Mr. Friedlander has been profiled in The Wall Street Journal and named “Litigator of the Week” inThe Am Law Litigation Daily. He repeatedly has been selected for annual inclusion in The Best Lawyers in America, Benchmark Litigation, Chambers & Partners, and Delaware “Super Lawyers”. He is rated AV by Martindale-Hubbell.

Education University of Pennsylvania School of Law, J.D., 1992 Executive Editor, University of Pennsylvania Law Review Recipient, Fred G. Leebron Award for Constitutional Law The Wharton School of the University of Pennsylvania, B.S., cum laude, 1988 Benjamin Franklin Scholar; General Honors Program

Professional and Community Activities Chairman of the Board and President, Rodney Street Tennis & Tutoring Association President, Delaware Region, Jewish National Fund Board of Advisors, University of Pennsylvania Institute of Law and Economics Member, Delaware Supreme Court Rules Committee (2009-2016) Member, Delaware State Advisory Committee, U.S. Commission on Civil Rights (2014-2015) Past President, The Milton & Hattie Kutz Home, Inc., a skilled nursing facility Delaware State Bar Association Member, Nominating Committee (2015-2016)

Member, Executive Committee (2005-2006) Assistant to the President (1998-1999) Master, Richard S. Rodney Inn of Court (2002-2005) Associate Member, Delaware Board of Bar Examiners (1998-2003) Editorial Board, Delaware Lawyer (1998-2003) President, Delaware Chapter, Lawyers Division, Federalist Society for Law & Public Policy Studies (1994-1999) Adjunct Professor, Widener Law School, teaching Equity (1998)

Law Review Articles and Seminars “Is Delaware’s ‘Other Major Political Party’ Really Entitled To Half of Delaware’s Judiciary?,” 58 Arizona Law Review ___ (forthcoming 2016) “How Rural/Metro Exposed the Systemic Problem of Disclosure Settlements,” 40 Delaware

http://www.friedlandergorris.com/publications/Political%20Balance%20Article%20(6-16-16)%20(W0410096).PDFhttp://www.friedlandergorris.com/publications/Political%20Balance%20Article%20(6-16-16)%20(W0410096).PDFhttp://www.friedlandergorris.com/publications/DJCL%20-%2040(3)%20Friedlander%20877%20PDF%20(W0407919).PDF

Journal of Corporate Law 877 (2016) “Overturn Time-Warner Three Different Ways,” 33 Delaware Journal of Corporate Law 631 (2008) "The Rule of Law at Century's End," 5 Texas Review of Law & Politics 317 (2001) "Corporation and Kulturkampf: Time Culture as Illegal Fiction," 29 University of Connecticut Law Review 31 (1996) "Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan," 140 University of Pennsylvania Law Review 1049 (1992) Mr. Friedlander has spoken on corporate law issues at the University of Pennsylvania Law School, Harvard Law School, New York University School of Law, Columbia Law School, James E. Rogers College of Law at the University of Arizona, Widener University Delaware Law School, the Mercatus Center at George Mason University, and Hebrew University in Jerusalem, among other forums. In 2015, he participated in the inaugural session of the Salzburg Forum on Global Developments in Corporate Governance.

Prior Experience

Skadden, Arps, Slate, Meagher & Flom, 1993-1995 Law Clerk to The Honorable Jack B. Jacobs, Delaware Court of Chancery, 1992-1993

State Bar Admission

Delaware, 1993

http://www.friedlandergorris.com/publications/DJCL%20-%2040(3)%20Friedlander%20877%20PDF%20(W0407919).PDFhttp://www.friedlandergorris.com/publications/OverturnTimeWarner(final%20pdf)(W0121595).pdfhttp://www.friedlandergorris.com/publications/OverturnTimeWarner(final%20pdf)(W0121595).pdfhttp://www.friedlandergorris.com/publications/theruleoflawatcenturysend.pdfhttp://www.friedlandergorris.com/publications/corporationandkulturkampf.pdfhttp://www.friedlandergorris.com/publications/corporationandkulturkampf.pdfhttp://www.friedlandergorris.com/publications/constitutionandkulturkampf.pdfhttp://www.friedlandergorris.com/publications/constitutionandkulturkampf.pdf

Joel Friedlander’s Advice for Legal Writing

1. Think hard about the key argument you want to make

o Edit everything (especially headings and introductory paragraphs) to make that point

o Cut material that does not make the argument flow o Move the good stuff to the front o Move footnote substance to the text o Effective rhetoric is context specific; avoid cookie-cutter outlines,

inserts, sections o Avoid empty rhetoric, adjectives, adverbs

2. Clarity of expression is paramount

o One thought per sentence o One concept per paragraph o Each sentence must logically follow from the preceding sentence o Express each point; don’t assume that the reader will figure it out

3. Quote best language from best cases

o Quoted full sentences are authoritative o Do not paraphrase, clip quotes, or string cite without parentheticals; o Three sentence maximum per case; explain salient points of key cases o Introduce block quotes by summarizing the key language

4. Tell affirmative story in opening briefs and answering briefs; reply is for

dismantling the other side

5. Shape your narrative in chronological order

{FG-W0414759.}

Jennifer is an associate with the Intellectual Property Litigation Group. Her practice focuses on patent, copyright

and trademark cases encompassing many areas of technology. In 2014, she was included in Lawyers of Color’s

Annual Hot List.

EDUCATION

J.D., 2010, University of Pennsylvania Law School

Associate and Senior Editor, 2008-2010, University of Pennsylvania Law Review

Executive Editor, 2009-2010, East Asia Law Review

S.B., electrical engineering & computer science, 2005, Massachusetts Institute of Technology

S.B., management, 2005, Massachusetts Institute of Technology

CLERKSHIPS

Law Clerk to The Honorable Jack B. Jacobs, Delaware Supreme Court, 2010-2011

Intern to The Honorable Donald F. Parsons, Jr., Delaware Court of Chancery, 2008

ADMISSIONS TO PRACTICE

Delaware, 2010

U.S. Court of Appeals for the Federal Circuit, 2014

U.S. District Court for the District of Delaware, 2011

U.S. Patent and Trademark Office, 2006

PROFESSIONAL ACTIVITIES

American Bar Association

Delaware State Bar Association

mnat.com | 1201 North Market Street, 16th Floor | P.O. Box 1347 | Wilmington, DE 19899-1347

JENNIFER YING

ASSOCIATE Intellectual Property Litigation Group

(302) 351-9243 T

(302) 225-2570 F

[email protected]

http://www.mnat.com/

The Current State of Capital Punishment in Delaware

The Honorable Paul R. WallaceJudge, Superior Court

HONORABLE PAUL R. WALLACE

Paul R. Wallace was appointed to the Superior Court of Delaware by Governor Jack

A. Markell and began serving in January 2013.

Judge Wallace received his undergraduate degree from University of Maryland and

his Juris Doctorate degree from the Columbus School of Law of the Catholic

University of America. He is admitted to the Delaware and Pennsylvania Bars and

is a member of the Bars of the United States District Court for the District of

Delaware, the United States Court of Federal Claims, the United States Court of

Appeals for the Third Circuit, and the United States Supreme Court.

Before taking the bench, Judge Wallace served for more than two decades with

Delaware’s Department of Justice, handling cases at every level, state and federal,

trial and appellate. Judge Wallace served as Delaware’s Chief of Appeals from 2008

until his appointment to the Superior Court. In that role, he was the State’s principal

courtroom advocate before the Delaware Supreme Court and the federal appellate

courts.

Prior to taking up a full-time appellate practice, Judge Wallace served as the Chief

Prosecutor for New Castle County and was a trial prosecutor handling a wide variety

of criminal matters. During his tenure with the Department of Justice, he also served

as legislative counsel to the Attorney General.

Judge Wallace is past chair of the Delaware State Bar Association’s Criminal Law

Section, a past member of the Delaware Supreme Court’s Permanent Advisory

Committee on the Delaware Lawyers’ Rules of Professional Conduct, and a current

member of the Court’s Permanent Advisory Committee on the Delaware Uniform

Rules of Evidence, the American Bar Association, the American College of Business

Court Judges, and the American Inns of Court. In addition to his adjunct duties at

Widener University School of Law, Judge Wallace is also a regular speaker and

author for local, state, and national educational institutions, professional

associations, and publications; his works focus primarily on matters relating to

criminal law and procedure, trial advocacy, and ethics.

In 2012, Judge Wallace was awarded the National Appellate Advocacy Award by

the Association of Government Attorneys in Capital Litigation.

Judge Wallace was a presiding judge on Superior Court’s Asbestos Docket for two

years. He joined the judges’ panel of the Court’s Complex Commercial Litigation

Division in 2015.

1

DELAWARE DEATH PENALTY

DSBA Office & Trial Practice Seminar

October 28, 2016

DELAWARE BY THE NOS.

Population - 45th in the US (897, 943)

Area - 49th in the US (2,490 sq. mi.)

Counties - 50th in the US (3)

Statehood - 1st in the US (Dec. 17, 1787)

Execution Rate –

3rd in the US (0.167)

Colonial Delaware - 1911

Capital punishment is

mandatory penalty for

specified crimes.

2

1911

Delaware’s First Mercy Statute

Only permitted a mercy recommendation for

certain rape convictions:

“. . . shall be deemed guilty of [a] felony and shall

suffer death; provided, however, that if the jury at

the time of rendering their verdict, shall

recommend the defendant to mercy, the court may,

if it seems proper to do so, impose the sentence of

life imprisonment instead of death.”

1911

Delaware’s First Mercy Statute

Only permitted a mercy recommendation for

certain rape convictions:

“. . . shall be deemed guilty of [a] felony and shall

suffer death; provided, however, that if the jury at

the time of rendering their verdict, shall

recommend the defendant to mercy, the court may,

if it seems proper to do so, impose the sentence of

life imprisonment instead of death.”

1917

Delaware extends Mercy Statute.

In any capital case jury could recommend

mercy.

Court then had discretion to impose life

instead of death.

3

1958

Delaware abolishes capital punishment.

It is the second state to do so in the 20th

century.

1961

Delaware legislature reinstates capital

punishment.

But only for first degree murder.

Also reinstates the Mercy Statute in the same

form.

1961-1972

Delaware’s Mercy Statute:

“That in all cases where the penalty for crime

prescribed by the laws of the State of Delaware

is death, if the jury shall, at the time of

rendering their verdict, recommend the

defendant to the mercy of the Court, the Court,

may, if it seems proper to do so, impose the

sentence of life imprisonment instead of death.”

4

1972

Furman v. Georgia

Holds death penalty, as then administered in the

United States, violated the Eighth Amendment’s

ban on cruel and unusual punishment.

Invalidates all then-existing state death penalty

regimes.

1961-1972









1961-1972









5

1973

State v. Dickerson

Holds that Delaware’s capital sentencing scheme

is invalid under Furman.

1974

Delaware legislature quickly enacts a new

capital punishment statute.

As Furman forbade “the uncontrolled

discretion of juries and judges in imposing the

death penalty” new Delaware statute goes back

to prescribing a mandatory death sentence for

first degree murder.

1976

Woodson v. North Carolina

Roberts v. Louisiana

Mandatory capital sentencing schemes violate the

Eighth Amendment.

State v. Spence

Delaware’s 1974 scheme invalid.

Nine death sentences vacated.

6

1977

Delaware enacts new law modeled after the

Georgia capital sentencing statute upheld in

Gregg v. Georgia.

Bifurcated Trials

Guilt decided in first phase.

Punishment decided in separate sentencing hearing.

New system allows for the presentation of

aggravating and mitigating evidence at the penalty

phase.

Penalty Phase - 1977

Jury could only sentence the defendant to death

if:

(1) Unanimously concluded that the prosecution had

proven, beyond a reasonable doubt, the existence

of at least one statutory aggravating circumstance.

(2) Jury’s decision to sentence the defendant to death

had to be unanimous and the jury’s sentence

determination was binding on the judge.

1978

White v. State

Delaware Supreme Court concludes the new

regime satisfies the Eighth Amendment.

7

Aggravating Circumstances

An “aggravating circumstance” is any factor relating to the

crime or to the offender which tends to make the

imposition of a penalty of death appropriate.

Mitigating Circumstances

It is within your province as the jury to determine the

aggravating and mitigating circumstances which exist in

this case and the weight they should be individually

accorded.

A “mitigating circumstance” is any factor relating to the

crime or to the offender which tends to make the

imposition of a penalty of death inappropriate.

“Aggravating” & “Mitigating”

1990 – Sanders v. State

GBMI is a mitigator as a matter of law.

Jury must be so instructed.

1991 – In re State

Victim impact evidence can be used.

Broad language of statute requires admissibility of

any relevant evidence.

8

“Aggravating” & “Mitigating”

1992 – Dawson v. Delaware

Unrelated First Amendment behavior can’t be used.

2012 – Small v. State

“[B]road definition [of “mitigating circumstance”]

includes any evidence which shows that the

defendant, although guilty, should not receive the

death penalty.”

1991

Brooks Armored Car Verdict (October)

68 DEL. LAWS c. 189 (Nov. 4, 1991)

Unanimous jury not required.

Jury’s recommendation by majority vote.

Jury’s function purely advisory.

Judge is ultimate sentencing authority.

2002

Ring v. Arizona (June 24, 2002)

Holds that a statutory aggravating circumstance,

which makes a defendant eligible for death

sentence, is the “functional equivalent of an

element of the offense” of capital murder.

Must be found unanimously and beyond a

reasonable doubt by the jury.

73 DEL. LAWS c. 423 (July 22, 2002)

9

2003

Garden v. State (January)

Jury’s life recommendation must be given “great

weight” and overturned only if no reasonable

person could agree with a life sentence.

Jury’s death recommendation could be

overturned if judge concluded that aggravation

did not outweigh mitigation.

2003

74 DEL. LAWS c. 174 (July 15, 2003)

§ 4209 (d)(1) – “The jury’s recommendation

concerning whether the aggravating circumstances

found to exist outweigh the mitigating

circumstances found to exist shall be given such

consideration as deemed appropriate by the Court.

. . . The jury’s recommendation shall not be

binding upon the Court.”

2003

74 DEL. LAWS c. 174 (July 15, 2003)








10

2003

74 DEL. LAWS c. 174 (July 15, 2003)








2015

Only Alabama, Delaware and Florida

permit the trial judge to override the jury

SCOTUS may still take up the question of

whether this is consistent with the “special

procedural safeguards” required “‘to minimize

the risk of wholly arbitrary and capricious

action’ in imposing the death penalty.”

2016

Hurst v. Florida (Jan. 12, 2016)

SCOTUS does find Florida’s death penalty statute

to be constitutionally deficient because it did not

comply with the Ring requirement of a jury finding

of a statutory aggravating circumstance.

11

2016

Rauf v. State (Aug. 2, 2016)

Delaware Supreme Court finds Delaware’s death

penalty statute to be constitutionally deficient

because, it is “the majority’s collective view that

Delaware’s current death penalty statute violates

the Sixth Amendment role of the jury as set forth

in Hurst.”

Rauf v. State, --- A.3d ---- (2016)

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

2016 WL 4224252 Only the Westlaw citation is currently

available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO

REVISION OR WITHDRAWAL.

Supreme Court of Delaware.

Benjamin Rauf, Defendant–Appellant,

v. State of Delaware, Plaintiff–Appellee.

No. 39, 2016 |

Submitted: June 15, 2016 |

Decided: August 2, 2016

Synopsis

Background: In prosecution for first-degree

intentional murder, first-degree felony

murder, and other offenses, after State

announced its intention to seek the death

penalty if defendant was convicted of either

of the murder counts, the Superior Court,

Paul R. Wallace, J., certified questions of

law.

Holdings: The Supreme Court held that:

[1]

Delaware’s capital sentencing statute

unconstitutionally allows a judge to find an

aggravating circumstance for the weighing

phase;

[2]


unconstitutionally fails to require jury

unanimity regarding an aggravating

circumstance for the weighing phase,

overruling State v. Cohen, 604 A.2d 846;

[3]


unconstitutionally allows a judge rather than

the jury to weigh aggravating and mitigating

circumstances, overruling Brice v. State, 815

A.2d 314, Swan v. State, 28 A.3d 362, Ortiz

v. State, 869 A.2d 285, Reyes v. State, 819

A.2d 305, and Norcross v. State, 816 A.2d

757;

[4]


unconstitutionally fails to require the finding

that aggravating circumstances outweigh

mitigating circumstances to be made beyond

a reasonable doubt; and

[5]

the unconstitutional procedures in the

statute could not be severed.

Certified questions answered.

Strine, C.J., filed a concurring opinion, in

which Holland and Seitz, JJ., joined.

Holland, J., filed a concurring opinion, in

which Strine, C.J., and Seitz, J., joined.

Valihura, J., filed an opinion concurring in

part and dissenting in part.

Vaughn, J., filed a dissenting opinion.

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Rauf v. State, --- A.3d ---- (2016)


West Headnotes (6)

[1]

Jury Statutory provisions

Sentencing and Punishment Procedure


violates the Sixth Amendment by

allowing a sentencing judge in a

capital jury proceeding, independent

of the jury, to find the existence of

an aggravating circumstance,

statutory or non-statutory, that has

been alleged by the State for

weighing in the selection phase of

the capital sentencing proceeding.

U.S. Const. Amend. 6; 11 Del. C. §

4209(d)(1).

Cases that cite this headnote

[2]





failing to require unanimity for the

jury’s finding, beyond a reasonable

doubt, of an aggravating

circumstance, statutory or

non-statutory, that has been alleged

by the State for weighing in the

selection phase of the capital

sentencing proceeding; overruling

State v. Cohen, 604 A.2d 846. U.S.

Const. Amend. 6; 11 Del. C §

4209(c)(3)(b)(2).


[3]





failing to require the jury, rather than

the sentencing judge, to make the

critical finding that the aggravating

circumstances outweigh the

mitigating circumstances; overruling

Brice v. State, 815 A.2d 314, Swan

v. State, 28 A.3d 362, Ortiz v. State,

869 A.2d 285, Reyes v. State, 819

A.2d 305, and Norcross v. State, 816

A.2d 757. U.S. Const. Amend. 6; 11

Del. C § 4209.


[4]



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Rauf v. State, --- A.3d ---- (2016)




allowing a finding by a

preponderance of the evidence,

rather than beyond a reasonable

doubt, that the aggravating

circumstances outweigh the

mitigating circumstances. U.S.

Const. Amend. 6; 11 Del. C § 4209.


[5]

Statutes Criminal justice

The unconstitutional procedures in


could not be severed from the

remainder of the statute, because the

respective roles of the judge and jury

were so complicated under the

statute and the court was unable to

discern a method by which to parse

the statute so as to preserve it, and

thus, the entire statute was

unconstitutional. U.S. Const.

Amend. 6; 11 Del. C § 4209.


[6]

Jury Death penalty

Sentencing and Punishment Unanimity

The Sixth Amendment right to a jury

trial extends to all phases of a death

penalty case, and specifically to the

ultimate sentencing determination of

whether a defendant should live or

die, and although states may give

judges a role in tempering the

harshness of a jury or in ensuring

proportionality, they may not

execute a defendant unless a jury has

unanimously recommended that the

defendant should suffer that fate.

(Per Strine, C.J., for a majority of the

court.) U.S. Const. Amend. 6.


West Codenotes

Held Unconstitutional

11 Del. C. § 4209

Certification of questions of law from the

Superior Court. Questions answered. Cr. ID

No. 1509009858

Attorneys and Law Firms

Santino Ceccotti, Esquire (Argued ), Ross

A. Flockerzie, Esquire, David C. Skoranski,

Esquire, Office of the Public Defender,

Wilmington, Delaware for Appellant.

Elizabeth R. McFarlan, Esquire, John R.

Williams, Esquire, Sean P. Lugg, Esquire

(Argued ), Delaware Department of Justice,

Wilmington, Delaware for Appellee.

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