DELISLE v. RIVERS (1997)

Lawrence DeLisle was convicted in a Michigan state court of the premeditated murder of his four children and the attempted murder of his wife.   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.   On appeal, DeLisle continues to argue that he was denied due process because:  1) the evidence against him was insufficient to prove premeditation and intent to kill;  2) members of the jury which convicted him were biased;  and 3) the trial court refused to grant his request for a bench trial.   For the reasons that follow, we will 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, 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.

DeLisle was arrested on August 10, 1989.   On the following day, he 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.   On June 21, 1990, following a jury trial, DeLisle was found guilty on all counts.   DeLisle was subsequently sentenced to five concurrent terms of life imprisonment.

The trial court denied DeLisle's motion for a new trial, and the Michigan Court of Appeals affirmed DeLisle's conviction.   After the Michigan Supreme Court denied DeLisle's application for leave to appeal, he filed the present application for a writ of habeas corpus.   Following a hearing, the district court denied the petition.   DeLisle filed a timely notice of appeal.

B.

The tragic deaths of the DeLisles' children engendered a great deal of media attention and captured public sympathies.   The tragedy evolved into a public sensation, however, when Wyandotte police officers revealed to the media that DeLisle had confessed to intentionally driving his family into the Detroit River, and that he would be formally charged with murder.

DeLisle was interrogated by Wyandotte police officers beginning at approximately 10:45 p.m., on August 10, 1989.   The interrogation lasted into the early morning hours of the following day.   During the questioning, DeLisle made numerous inculpatory statements.   In particular, he stated that he had purposely driven his family into the Detroit River on August 3, 1989, and that he had attempted to blow up his home eight years earlier, by leaving a candle burning near a gas leak in the basement while his wife and son were asleep.

DeLisle moved promptly to suppress the fruits of this interrogation.   On December 21, 1989, well before the June 1990 trial date, the trial court agreed that DeLisle's statements to the police had not been made voluntarily and, accordingly, it ordered their suppression.   In a pretrial appeal, the trial court's decision was affirmed by the Michigan Court of Appeals, People v. DeLisle, 183 Mich.App. 713, 455 N.W.2d 401 (1990), and the Michigan Supreme Court denied leave to appeal, People v. DeLisle, 447 Mich. 987, 525 N.W.2d 445 (1994).

Notwithstanding their suppression for purposes of his trial, however, DeLisle's admissions were widely publicized by the media.   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 prominent headings as:  “DeLisle's confession ruled out” and “Prosecutor:  DeLisle tried twice.”   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.”

Not satisfied with secondhand police accounts of DeLisle's statements, certain members of the media filed suit demanding access to the tape recordings of the interrogations.   On January 10, 1990, pursuant to an order from the Michigan Court of Appeals, excerpts from tapes of DeLisle's interrogation were played to media representatives.   On the following day, The Detroit News and the Detroit Free Press published lengthy transcripts of DeLisle's interrogation in articles headlined, “I don't deserve to live,” and “DeLisle tells of torment.”   Although DeLisle's statements were often incoherent, they were plainly incriminating.   For example, according to the Detroit Free Press, when asked about the events on August 3, 1989, DeLisle said:

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.

With regard to DeLisle's 1981 attempt to blow up his home, the newspaper also reported 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.

․

[Q]: Did you have those same feelings this night when you were driving into the river, that you wanted to go with them?

[A]: Yes.

The newspapers reported that 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.”

C.

The trial court made its first attempt to seat a jury for DeLisle's trial in late January 1990.   Recognizing that the pretrial publicity had been widespread and potentially prejudicial to the defense, the trial court permitted prosecution and defense attorneys to prepare a lengthy questionnaire to be completed by prospective jurors.   On January 25, 1990, after a panel of jurors had completed the questionnaire, the defense filed a motion for change of venue.   The trial court deferred decision on the motion, pending an attempt to seat an impartial jury.

The initial jury venire was dismissed when the state's appeal of the trial court's suppression ruling caused a stay of DeLisle's trial.   A second panel of jurors convened to complete the questionnaire on May 31, 1990.   The defense again moved for a change of venue, and the trial court again deferred a ruling on the motion until it could determine whether an impartial jury could be seated.   The trial court conducted voir dire, June 6-8, 1990.   Prospective jurors were questioned individually, rather than en mass, and prosecution and defense attorneys were given virtually unlimited opportunity to question prospective jurors about their knowledge of the case, and their ability to render a fair and impartial judgment.

In order to pass 41 prospective jurors for cause, enough to yield 12 jurors and two alternates in the event that both the prosecution and the defense used all of their peremptory challenges, the trial court and the parties interviewed 68 members of the venire.   The court excused 16 venirepersons for cause, sua sponte.   Of these 16, seven were excused because they admitted that they had made up their mind, could not be fair, or believed that DeLisle was guilty.   Five were excused for hardship;  two were excused because they said they could not be fair when children were involved;  one was excused because he had made plans to visit the scene of the accident;  and one was excused because he did not believe he could be fair because he had been a police officer for 28 years.   The court excused one juror the state had challenged for cause, who could not presume DeLisle innocent.

Over the course of the three days of voir dire, DeLisle's attorney challenged 15 venirepersons for cause.   The trial court granted 10 of these 15 challenges.   Of those excused on DeLisle's challenge for cause, only one clearly expressed a belief that DeLisle was guilty;  a few doubted that the tragedy could have been an accident;  one was excused because he could not follow the burden of proof;  and a few admitted that they did not think they could be fair.   Most of those excused on the defense's challenges were excused because they indicated that they would have some trouble putting aside what they had heard or read about the case.   Thirty-seven jurors were passed without challenge for cause, including all 12 of the jurors who would eventually decide DeLisle's fate.

At the beginning of the third day of voir dire, June 8, 1990, DeLisle renewed his request for a change of venue.   His attorney noted that 23 of the 35 jurors that had been passed to that point, including those passed over DeLisle's challenge, had some knowledge of the suppressed statements.   The trial court restated its desire to “reserve ruling on [the] motion.”   DeLisle's attorney then stated:

I want to make it clear on the record that I would challenge for cause any juror who has knowledge of the confession.   My problem is, if I identify them now and challenge them by name solely on their knowledge, the Court will deny that challenge and I will disclose my list before the Prosecutor exercises a peremptory challenge.   Those jurors that I feel have the knowledge in this case not to be fair [sic].   So, I would ask if I be permitted to file that list subsequent to jury selection if we proceed to that.   And identify those jurors that I am challenging on that basis.

(Emphasis added.)   The court replied that DeLisle would “be permitted to do that.”

On June 11, 1990, the defense exercised 10 of its 15 peremptory challenges and the state exercised six of its 12.   DeLisle's attorney explained that he had not used all of his peremptory challenges because he did not have enough challenges to eliminate all of the jurors who had some knowledge of the suppressed statements made by DeLisle, and because he did not want to enable the prosecution to use its remaining challenges to eliminate the few jurors that the defense favored.

After the jury was seated, the trial court denied DeLisle's motion for change of venue.   Explaining its decision, the court noted that the defense had not used all of its peremptory challenges;  “only about 10” of the 68 venirepersons interviewed “indicated that there was a prejudice that would prevent them from deciding the case”;  “some time” had passed since the accident;  and “[t]here [was] no evidence ․ to indicate ․ strong community feeling or bitter prejudice towards the Defendant.”

We note, in passing, that under Michigan law, a party's failure to exercise all of its peremptory challenges may constitute a waiver of the party's right to challenge the impartiality of the jury.   See People v. Taylor, 195 Mich.App. 57, 489 N.W.2d 99, 101 (1992).   The Michigan Court of Appeals did not treat DeLisle's failure to use all of his peremptory challenges as a procedural default, see People v. DeLisle, 202 Mich.App. 658, 509 N.W.2d 885, 891 n. 4 (1993), and, accordingly, neither will we, see McBee v. Grant, 763 F.2d 811, 813 (6th Cir.1985).

All 12 of the jurors who eventually determined DeLisle's guilt admitted that they had heard about the case before being called for jury service.   Seven of these jurors admitted to no more than some recollection of the accident or of DeLisle's claim that the accident was caused by a leg cramp or a problem with his car.   For the most part, these jurors indicated that they had not heard much about the case, that they had forgotten about the case, or that their memories of the case had faded.   Significantly, none of the jurors had an opinion regarding DeLisle's guilt.

Five jurors indicated that they had some knowledge of the suppressed statements.   One of these jurors remembered only that DeLisle had changed his mind regarding whether he “did it.”   Three jurors remembered that DeLisle had been pressured to confess, and one was aware of both DeLisle's confession and the 1981 “candle incident.”   Each of these jurors specifically denied that he or she had formed an opinion regarding DeLisle's guilt.   All of the eventual jurors assured the court that they could presume DeLisle innocent, and that they would base their decision on the evidence presented at trial.

D.

DeLisle's trial began on June 11, 1990.   The state's first witness, Beverly Lake, testified that she lives in an 11th-floor condominium unit at the eastern end of Eureka Road in Wyandotte.   She explained that Eureka Road runs west to east and dead-ends to the east at the Detroit River.   She also noted that, at the eastern end of Eureka Road, between the pavement and the bank of the river, two wooden posts served as a barricade to traffic.

Lake testified that she was on her balcony with her parents on August 2, 1989, the night before the drownings, when she first saw the DeLisles' station wagon.   She testified that she saw the DeLisles' car being driven “at an extremely slow pace” to the very end of Eureka, and then watched it turn around, and head away from the river toward Biddle Avenue, which runs north to south and intersects Eureka to the west.   Lake took particular notice of the DeLisles' car because it was moving so slowly;  there had been a rash of car thefts and vandalism in the area;  and, since Eureka is not a through-street, she usually recognized passing cars.

The next evening, August 3, 1989, at approximately 9:00 p.m., Lake was again on her balcony with her parents, when she saw the same car with the same driver and passengers return.   She testified that she “recognized them specifically.”   She stated that the DeLisles' car again drove “extremely slowly ․ to the wooden barricade” at the very end of the street, and after “a considerable pause, probably 30 to 60 seconds,” the car turned around, and headed west away from the river.   According to Lake, the car returned about 20 minutes later, accelerated rapidly down the street, crashed through the posts, and disappeared into the river.   Lake testified that she heard the car “shift [ ] into passing gear”;  that the car proceeded in a straight path between the barricades without “swerving” or “deviat[ing]”;  and that there were no apparent signs of braking.

The state presented several other witnesses who confirmed that the DeLisles' station wagon drove straight down the middle of Eureka Road, at a high rate of speed, accelerating, and not swerving or braking.   Additionally, Lake's mother, Goldie Hunt, confirmed Lake's account of the events on August 2, 1989.   She agreed that the car she observed on that evening was the same car that plunged into the Detroit River the following night.

The DeLisles' car struck the “right third” of the left of the two barricade posts at the end of Eureka.   It also clipped a sign attached to the right post, though not the post itself.   Irving Rozian, an engineer and an expert in accident reconstruction, testified that a slight indentation on the left front wheel suggested that the car struck the curb at the end of the road with a slight angle to the right.   He explained that this angle was the likely result of a slight change of direction which would not have been observed as a “swerve.”   Rozian testified that this change of direction would be consistent with an attempt to drive between the barricade posts if the DeLisles' car was toward the left side of the road as it approached the end of the street.   Although he stated that it could have been accomplished by taking a more perfectly straight path, Rozian acknowledged that someone trying to split the protective posts at the end of Eureka could not hope to be much more successful than DeLisle.

Another expert in accident reconstruction, Sergeant Weldon Greiger, testified that the car traveled some 40 feet from the curb to impact in the river, and that, in order to do so, the car would have had to have been traveling at least 40-47 miles per hour.   Greiger estimated that, at maximum acceleration, it would have taken 7-1/212 seconds and 300 feet for the DeLisles' car to reach a speed of 45 miles per hour.   Greiger further testified that, in post-accident tests, the DeLisles' car brakes functioned properly.   Specifically, he stated that, while maintaining full acceleration at 45 and 55 miles per hour, the brakes had succeeded in bringing the car to a stop.   Finally, Greiger added that he had found no skid marks at the scene of the accident.   This fact was confirmed by Sergeant Daniel Galeski.

Bryan Ross was seated in his boat on the river and saw DeLisle's car go into and under the water.   Ross testified that the car went under in a matter of seconds and that DeLisle surfaced quickly “right above where the car had gone under.”   Ross added that DeLisle did not say anything and that he never went under the water again.   Rather, “[DeLisle] was just sitting there treading water.”   Suzanne DeLisle, on the other hand, “popped up downriver” and was “hysterical.”   Ross testified that “[s]he was spitting water and started screaming, ‘My babies', and then she'd go back under again.”

Eric Stoneburner, another boater, eventually pulled DeLisle and Suzanne from the river.   He testified that DeLisle did not say anything when he was pulled into the boat, but that Suzanne “was screaming for her babies.”   He also remembered that, after Suzanne was pulled into the boat, the DeLisles embraced and DeLisle “said something to th[e] effect, ‘Oh my God, what have I done.’ ”

E.

DeLisle's defense was that the death of his children was a tragic accident caused by a leg cramp and an engine throttle that became stuck.   DeLisle did not testify, and his account of the accident was introduced primarily through the testimony of his wife, Suzanne.

Suzanne's testimony concerning the events of August 2 and 3, 1989, was as follows:  On August 2, 1989, the family had been out for a pleasure drive and had driven down Eureka Road in an attempt to get into a nearby park.   The next evening, August 3, 1989, the family was out running errands and, at Melissa's request, decided to go to the river to watch the boats.   Although the DeLisles had not been able to reach the park by way of Eureka on the previous evening, DeLisle again drove down Eureka.   After crossing Biddle, DeLisle pulled over and stopped the car because his leg was bothering him.   He rubbed his right calf for a few minutes and the family decided to return home because their infant was crying loudly.

DeLisle then drove toward the water, east down Eureka, turned around, and proceeded to a drug store at the corner of Biddle and Eureka.   After leaving the drug store, DeLisle drove down an alley and, finding it difficult to make a right turn to head home, again pulled onto Eureka heading toward the river.

Suzanne reminded her husband that he could turn around in a nearby driveway.   DeLisle suddenly grabbed his leg and screamed that he was having a cramp.   The car began to accelerate, and DeLisle grabbed his calf with his right hand to “try[ ] to pull his right foot off of the accelerator.”   Both Suzanne and her husband tried to steer the car with their left hands, and the “wheel was moving back and forth.”   Although Suzanne claimed that DeLisle succeeded in pulling his foot off of the accelerator, she did not remember the car ever slowing down.

Suzanne testified further that the car's engine had “raced” in the past, including some times while the car was in drive.   She adhered to this testimony even when she was reminded of her previous deposition testimony that the “racing” had only occurred when the car was in neutral.   Both parties presented evidence regarding the mechanical condition of the car and, in particular, the throttle.   Two expert witnesses, Weldon Greiger and Jon Yager, testified that during one test of the DeLisles' car the engine “raced” while in neutral.   The engine eventually developed significant problems and the “racing” could not be duplicated.   One defense witness, mechanic James Cokewell, testified that the car's accelerator cable was bent, its engine mounts were cracked, and one of its throttle plates appeared to stick.   According to Cokewell, the DeLisles' vehicle was “dangerous” because these problems could contribute to excess or uncontrollable acceleration.

F.

On the second day of the trial, DeLisle moved to waive the jury in favor of a bench trial.   The prosecution objected to the motion, and the trial court formally denied the motion.   Following less than two days of deliberation, the jury convicted DeLisle on all counts and he was sentenced to five concurrent terms of life imprisonment.

On direct appeal to the Michigan Court of Appeals, DeLisle alleged numerous due process violations.   In particular, he argued that the evidence against him was insufficient to prove premeditation or intent to kill.   He also challenged the trial court's denial of his motion for a bench trial, his motion for a change of venue, and his motion to challenge for cause all jurors with knowledge of the suppressed statements.   The Court of Appeals readily concluded that the evidence was sufficient to sustain DeLisle's conviction, DeLisle, 509 N.W.2d at 888, and on the authority of People v. Kirby, 440 Mich. 485, 487 N.W.2d 404 (1992), it rejected DeLisle's argument that the trial court erred by not granting DeLisle's request for a bench trial.  DeLisle, 509 N.W.2d at 893.   The Court of Appeals did not specifically address DeLisle's argument regarding the blanket challenge for cause.   It did, however, consider at length the denial of DeLisle's motion for change of venue.   The court understood DeLisle's argument to be, essentially, that “the jury in [his] case was exposed to [his] inadmissible ‘confession’ through the media to such a great extent that they [sic] could not be expected to set aside such knowledge.”   Id. at 889.   The court rejected this argument, finding, “after a thorough review of the record, [it could] find no reason to disregard the jurors' assurances that they could render a fair and impartial verdict in [his] case.”   Id.  In particular, the court noted that only 21 of 68 potential jurors were excused for bias, and that all the jurors who heard the case indicated “that their memories of the case were vague because of the lapse of time.”   Id. at 891.   The court also found, after reviewing the pretrial publicity, that, although “[t]he tone of the news articles became inflammatory shortly after the incident” and “[t]here was ․ considerable coverage regarding defendant's confession,” the “inflammatory news coverage had basically stopped after January 17, 1990,” id. at 892, some five months before the trial.

After the Michigan Supreme Court denied DeLisle's application for leave to appeal, DeLisle, 447 Mich. 987, 525 N.W.2d 445, DeLisle filed the present application for a writ of habeas corpus.   In his petition, DeLisle renewed his challenge to the sufficiency of the evidence and to the trial court's denial of his request for a bench trial.   Although DeLisle did not persist with his challenge to the trial court's denial of his motion for change of venue, he reasserted his claim that he was denied due process because the trial court denied a blanket challenge for cause to any venireperson with knowledge of the suppressed pretrial statements.

The district court agreed with the Michigan Court of Appeals that the evidence against DeLisle was sufficient to permit a rational jury to find DeLisle guilty as charged.   It also agreed that DeLisle had no constitutional right to a bench trial.   Finally, the district court rejected DeLisle's argument that he should have been permitted to challenge for cause any prospective juror with knowledge of his suppressed statements.   The district court found that DeLisle's right to a fair trial had been adequately safeguarded by the thorough voir dire and the use of the questionnaire.   It explained that “each juror[ ] indicat[ed] that they [sic] would base[ ] the verdict on the evidence, ․ no juror express[ed] a predisposition to find [DeLisle] guilty,” and “only 15% of the prospective jurors interviewed in this case indicated a level of prejudice which would prevent them from deciding the case.”   The district court concluded that “[b]ased on the record in this case, [it] [could not] find that the jurors ․ ‘had such fixed opinions that they could not judge impartially’ [DeLisle's] guilt.”

II.

A.

A federal court's consideration of an application for a writ of habeas corpus, filed by a prisoner incarcerated pursuant to the judgment of a state court, is governed by 28 U.S.C. § 2254.   When reviewing a district court's disposition of such an application, this court reviews the district court's legal conclusions de novo, and any findings of fact for clear error.   McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.1996), cert. denied, 520 U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997).

Pursuant to section 104 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), Congress amended section 2254.   See 28 U.S.C. § 2254(d), (e)(1) (Supp.1997).   These amendments were signed into law on April 24, 1996, and they do not apply to “applications in noncapital cases that were already pending when the Act was passed.”  Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997).   DeLisle's application for a writ of habeas corpus was filed on March 8, 1995.   Accordingly, we consider his application under pre-AEDPA standards.

B.

 The state argues that DeLisle raised all of the issues on direct appeal to the Michigan Court of Appeals that he presented in his application for a writ of habeas corpus, and that “he may not seek to relitigate the points resolved against him on direct appeal without violating this Court's obligation to give full faith and credit to the judgment of a state court.”   We understand the state's argument to be an attempt to extend the rule of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), to DeLisle's challenge to the sufficiency of the evidence and the impartiality of his jury.

The United States Supreme Court has explained that Stone was a “prudential” decision, based in large part on the fact that the exclusionary rule “ ‘is not a personal constitutional right,’ ” and it has “repeatedly declined to extend the rule in Stone beyond its original bounds.”   See Withrow v. Williams, 507 U.S. 680, 686-87, 113 S.Ct. 1745, 1750, 123 L.Ed.2d 407 (1993) (citation omitted).   Specifically, the Court has expressly refused to extend Stone to due process challenges to the sufficiency of the evidence.   Jackson v. Virginia, 443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979).   We have no doubt, following the decisions in Withrow, 507 U.S. at 687-95, 113 S.Ct. at 1750-55, Kimmelman v. Morrison, 477 U.S. 365, 375-83, 106 S.Ct. 2574, 2582-87, 91 L.Ed.2d 305 (1986), and Rose v. Mitchell, 443 U.S. 545, 559-66, 99 S.Ct. 2993, 3001-05, 61 L.Ed.2d 739 (1979), that, where the fundamental and personal constitutional right to an impartial jury trial is at issue, federal habeas corpus review remains available notwithstanding a full and fair opportunity to litigate the issue in state court.   Accordingly, we now turn to the merits of DeLisle's application.

C.

 DeLisle argues that the district court erred when it held that the evidence presented against him is sufficient to prove that he acted with both premeditation and intent to kill when he drove into the Detroit River on August 3, 1989.   We disagree.

 In order to prove that a defendant is guilty of first-degree murder or first-degree attempted murder under Michigan law, the state must prove that the defendant acted with premeditation and intent to kill.   See Mich. Comp. Laws §§ 750.316, 750.91;  see also People v. Youngblood, 165 Mich.App. 381, 418 N.W.2d 472, 475 (1988);  People v. Ng, 156 Mich.App. 779, 402 N.W.2d 500, 503-04 (1986).   Premeditation and intent to kill may be inferred from circumstantial evidence.   See, e.g., Youngblood, 418 N.W.2d at 475;  Ng, 402 N.W.2d at 504.

 An applicant for a writ of habeas corpus is entitled to relief if, “after viewing the evidence in the light most favorable to the prosecution,” the court concludes that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

In this case, the evidence of premeditation and intent to kill is entirely circumstantial, a situation that is not unusual in murder cases generally.   Rarely is direct evidence of premeditation and intent to kill available in a murder case, except where a confession is received in evidence.   DeLisle's jury was required to examine the evidence of DeLisle's conduct and infer what he thought and what he intended to do from what he did and failed to do-the quintessential jury responsibility in a circumstantial evidence case.   Our duty is to determine whether, viewing the evidence in the record in the light most favorable to the prosecution, we are able to conclude that no rational juror could be convinced beyond a reasonable doubt that before driving into the Detroit River, DeLisle intended with premeditation to drown his wife and children.   We have carefully and deliberately considered the record in this case, and, like the trial court, the Michigan Court of Appeals, and the United States District Court, we are not able to reach such a conclusion.

DeLisle's intent to drown his family, and perhaps even himself, could reasonably be inferred from the fact that he drove slowly to the end of Eureka Road on two occasions shortly before the incident;  that on the evening of the drownings, the station wagon accelerated rapidly down Eureka Road and into the Detroit River, splitting the protective posts at the end of the street nearly perfectly, without any apparent swerving or braking, and despite the fact that the car's brakes were capable of bringing the car to a stop;  and that DeLisle surfaced quickly and did not call for help from boaters nearby, and made no apparent attempt to save his family.

 That some or most of this evidence may also be consistent with DeLisle's defense is ultimately of no consequence.   The jurors were the final judges of DeLisle's credibility and they were entitled to reject his story of a stuck accelerator and leg cramp.   We, of course, are not free to reject the jurors' credibility determination, and we may not now upset the jurors' verdict simply because the evidence does not “rule out every hypothesis except that of guilt beyond a reasonable doubt.”  Jackson, 443 U.S. at 325-26, 99 S.Ct. at 2792.

D.

 DeLisle's second claim on appeal is that the district court erred when it held that he was not denied due process when the trial court denied his blanket challenge for cause to all venirepersons with knowledge of the suppressed statements.   Specifically, DeLisle argues that, under the totality of the circumstances in his case, no juror with knowledge of the suppressed statements was capable of being impartial.   Although the Michigan Court of Appeals failed to address this argument, it is clear that DeLisle raised the argument both in his brief on direct appeal and in his application for leave to appeal to the Michigan Supreme Court.   Accordingly, he has met the exhaustion requirement of the habeas statute.   See Smith v. Digmon, 434 U.S. 332, 333-34, 98 S.Ct. 597, 598-99, 54 L.Ed.2d 582 (1978);  Harris v. Rees, 794 F.2d 1168, 1174 (6th Cir.1986).

As a preliminary matter, we note that it is not at all clear that DeLisle actually made the blanket challenge that is the basis for his present argument.   In support of his claim that he did make a blanket challenge to all venirepersons with knowledge of the suppressed statements, DeLisle refers this court to his attorney's June 8, 1990, statement “that [he] would challenge for cause any juror who has knowledge of the confession,” and his attorney's request that he “be permitted to file [a] list” of “[t]hose jurors that [he] [felt] have the knowledge in this case not to be fair.”   We are satisfied, on a plain reading of the transcript, that DeLisle's attorney did not make a blanket challenge;  rather, he requested that he be permitted to do so later in the trial.   Although the trial court acceded to DeLisle's request, we find no indication in the record that DeLisle ever followed through with a motion or a list of the jurors he wished to challenge.

The Michigan Court of Appeals did not address this important factual issue, and the district court appears to have simply assumed that DeLisle's attorney actually made a blanket challenge.   Because DeLisle's argument regarding the blanket challenge must be rejected on the merits, we are willing to assume that the challenge was made and denied.

It is important to make clear at the outset what DeLisle does not argue in this appeal.   First, he expressly disavows his previous claim that the trial court's denial of his motion for change of venue resulted in a denial of due process.   He explains that he has abandoned this argument because, he says, he does not want this court to be distracted from his claim that five jurors had knowledge, to some degree or other, of his suppressed statements.   Second, DeLisle does not now argue, and has not at any point argued, that particular jurors actually revealed a disqualifying animus or unfavorable predisposition toward him during voir dire.   Indeed, in his primary brief on appeal, DeLisle does not make a single, specific reference to the voir dire examination of the venirepersons who eventually served on his jury.   Rather, he relies only indirectly on the voir dire examination to establish which jurors had knowledge of the suppressed statements.   He then asks this court to presume that the “ability [of the jurors with such knowledge] to fairly and impartially consider only the evidence presented at trial was fatally tainted.”

That DeLisle's argument is based on a presumption of prejudice, rather than any evidence of juror hostility, is clear from the fact that DeLisle's claim is premised on the denial of a blanket challenge for cause.   As we have indicated, DeLisle made successful use of a number of challenges for cause during voir dire.   In fact, the trial court granted 10 of DeLisle's 15 challenges.   Obviously, DeLisle quite clearly understood his right to challenge venirepersons he thought displayed bias.   And, given that DeLisle passed each and every member of the eventual jury for cause, we are not surprised that he now takes a “presumptive,” rather than an “in fact,” approach to his allegation of juror bias.

 A defendant's due process right to an impartial jury does not include the right to jurors who are entirely ignorant of the facts of the case, or who have no “preconceived notion as to the [defendant's] guilt or innocence.”  Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).   Rather, “[i]t is sufficient if [a] juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”   Id.  In seating a jury, then, the trial court is called upon to “distinguish between mere familiarity with [the defendant] or his past and an actual predisposition against him.”  Murphy v. Florida, 421 U.S. 794, 800 n. 4, 95 S.Ct. 2031, 2036 n. 4, 44 L.Ed.2d 589 (1975).  “The relevant question is ․ whether the [prospective] jurors ․ [have] such fixed opinions that they could not judge impartially the guilt of the defendant.”  Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).

 Only in the most extraordinary circumstances must a state trial court disregard prospective jurors' assurances of impartiality, and presume that the jurors are prejudiced.   See generally Murphy, 421 U.S. at 798-99, 95 S.Ct. at 2035-36.   Although it is clear that the Supreme Court's decisions in this area, “[t]aken together, ․ demonstrate that pretrial publicity-even pervasive, adverse publicity-does not inevitably lead to an unfair trial,” Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976), the Supreme Court has presumed or inferred that a defendant was denied a fair trial in several cases where “a state-court conviction [was] obtained in a trial atmosphere that had been utterly corrupted by press coverage.”  Murphy, 421 U.S. at 798, 95 S.Ct. at 2035 (citing Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966);  Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965);  Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963);  Irvin, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751).   Whether such a presumption is warranted is determined by the totality of the circumstances, Murphy, 421 U.S. at 799, 95 S.Ct. at 2035-36;  and the trial court's determination, that a “jury as a whole” is impartial, under the totality of the circumstances, may be overturned only for manifest error, Patton, 467 U.S. at 1031-32, 104 S.Ct. at 2888-89.

The fact that prospective jurors in this case learned through extensive pretrial publicity some months prior to the trial that DeLisle made statements of admission concerning the crime for which he was tried is not, without more, the kind of extraordinary circumstance that creates a presumption of prejudice.   See Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991);  Patton, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847.   Indeed, the Supreme Court's holdings in Mu'Min and Patton “squarely foreclose[ ]” the argument that “jurors who read that [the defendant] had confessed to the murder [for which he is being tried] should [be] disqualified as a matter of law.”  Mu'Min, 500 U.S. at 432, 111 S.Ct. at 1909 (O'Connor, J., concurring).   Thus, in the absence of a showing of some “utterly corrupting” circumstances, Mu'Min and Patton make it clear that the trial court in this case was not required, as a matter of due process, to grant a blanket challenge for cause to every prospective juror with knowledge of DeLisle's suppressed statements.   Id. at 429, 111 S.Ct. at 1907;  Patton, 467 U.S. at 1031-35, 104 S.Ct. at 2888-91.

 After a thorough review of the record in this case, including a careful evaluation of the more than 700 pages of voir dire testimony, we are convinced that the circumstances surrounding DeLisle's trial do not compel the conclusion that “the jurors' claims that they [could] be impartial should not be believed.”  Patton, 467 U.S. at 1031, 104 S.Ct. at 2889.   DeLisle's trial was not conducted in the kind of circus-like atmosphere that corrupted the proceedings in Sheppard, 384 U.S. at 339-49, 86 S.Ct. at 1510-15, and Estes, 381 U.S. at 536, 85 S.Ct. at 1629-30, and we do not believe that the publishing of excerpts from DeLisle's interrogation in local newspapers months before the trial can be equated with the televised “spectacle of [a defendant] personally confessing,” Rideau, 373 U.S. at 726, 83 S.Ct. at 1419.   Clearly, it was the manner of the presentation, and not the content of the information conveyed, which distinguished Rideau, 373 U.S. at 726, 83 S.Ct. at 1419, from Patton, 467 U.S. at 1027-28, 104 S.Ct. at 2886-87, and Leonard v. United States, 378 U.S. 544, 545, 84 S.Ct. 1696, 1696, 12 L.Ed.2d 1028 (1964), from Murphy, 421 U.S. at 800, 95 S.Ct. at 2036.   We simply do not believe that prejudice inheres in newspaper coverage of a confession to the same degree that it inheres in the repeated televising of such a confession, or to a degree which warrants the presumption that local jurors were “fatally tainted.”   See Mu'Min, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493;  Patton, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847.

We recognize, of course, that newspapers can contribute quite powerfully to the creation of community-wide hostility toward a defendant.   See Irvin, 366 U.S. at 725-27, 81 S.Ct. at 1644-45.   However, we find no indication that such hostility existed at the time of DeLisle's trial.   The Michigan Court of Appeals found that newspaper coverage of DeLisle's suppressed statements ended with the mid-January 1990 reports of DeLisle's interrogation.   DeLisle does not challenge this finding of fact, and the voir dire testimony confirms either that the pretrial publicity had not inflamed widespread prejudice or that the passage of time had served to “soothe[ ] and erase[ ]” such feelings.   Patton, 467 U.S. at 1034, 104 S.Ct. at 2890.   In reviewing the voir dire examination of the jurors, we find that no more than 20 of the 68 prospective jurors indicated that they would be unable to put aside their knowledge or opinions about the case;  and that, of these 20, no more than 10 prospective jurors indicated that they had already concluded that DeLisle was guilty.   The record further reveals that, although the trial court would not exclude prospective jurors solely on the basis of their knowledge of the case, it conscientiously sought to exclude any juror who indicated that he or she could not honestly presume DeLisle innocent.

None of the jurors who decided DeLisle's fate was challenged for cause, none expressed any opinion regarding DeLisle's guilt, and all of the jurors assured the trial court that they would base their decision on the evidence presented at trial.   On the record before us, we find no extraordinary or utterly corrupting circumstances which would give us reason to reject these assurances of impartiality.   The Supreme Court has explained that those cases in which “pretrial publicity presents [an] unmanageable threat[ ]” to a defendant's right to an impartial jury trial are “relatively rare.”  Nebraska Press Ass'n, 427 U.S. at 551, 554, 96 S.Ct. at 2799, 2800.   This was not such a case.   What threats there were to DeLisle's right to a fair trial were capably managed by the trial court.

E.

 DeLisle's final argument on appeal is that he was denied due process when the trial court denied his request to waive the jury in favor of a bench trial.   Having already concluded that DeLisle's right to an impartial jury was adequately safeguarded, it is clear that DeLisle had no federal constitutional right to waive his jury over the objection of the prosecution.  Singer v. United States, 380 U.S. 24, 34-36, 85 S.Ct. 783, 789-91, 13 L.Ed.2d 630 (1965).

III.

For all the foregoing reasons, we AFFIRM the judgment of the district court.

In 1951 in Shepherd v. Florida, Justice Jackson, commenting on the sheriff's release of inadmissible confessions in a sensational murder case, said that “[i]t is hard to imagine a more prejudicial influence than a press release by the officer of the court charged with defendants' custody stating that they had confessed, and here just such a statement, unsworn to, unseen, uncross-examined and uncontradicted, was conveyed by the press to the jury.”  341 U.S. 50, 52, 71 S.Ct. 549, 550, 95 L.Ed. 740 (1951) (Jackson, J., concurring).   A unanimous Supreme Court reversed the conviction of four defendants that had occurred under such circumstances.

Even more unimaginable would be a sensational case in which a judicial press conference disclosed a coerced confession in full to the media prior to trial.   That is exactly what occurred in this case.   It is also what the majority does not acknowledge or discuss.   The Michigan trial judge suppressed DeLisle's confession as an involuntary, coerced confession, hypnotically induced by the police.   Two weeks later, other Michigan courts maximized the confession's prejudicial effect by openly conveying it to the press in the same court where DeLisle was subsequently tried and convicted.   As a result of the massive publicity that followed this judicial press conference, one half of the jurors who convicted DeLisle knew the details of the confession but did not know it was unreliable because, in Justice Jackson's words, the confession was “unseen, uncross-examined and uncontradicted” at trial.

In this habeas appeal, the question is whether these actions by the Michigan state courts and the police brought about pretrial publicity that deprived DeLisle of his right to due process of law and to an impartial jury.   It seems obvious here that the state courts failed to carry out their “affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity” arising from “unreliable or illegally obtained evidence” that must be suppressed from jury consideration.  Gannett Co. v. DePasquale, 443 U.S. 368, 378, 99 S.Ct. 2898, 2904-05, 61 L.Ed.2d 608 (1979).

I. The Facts

The facts of this case are dramatic but not in dispute.   But the majority “stress[es] the trivial and ignore[s] the important” facts at the heart of the case.   See Shepherd, 341 U.S. at 54, 71 S.Ct. at 551.   Immediately following the accident, both DeLisle and his wife said that he had panicked after he experienced a cramp in his leg.   They said that the car's engine often raced, a fact confirmed by post-accident tests.   They also said that each had pulled on opposite sides of the steering wheel, preventing the car from swerving, as the car travelled down the narrow road on a peninsula that ended at the river.   This was the second family tragedy in the station wagon.   DeLisle's father had committed suicide in the car seventeen months earlier.

The bizarre character of the accident and subsequent events made this a sensational murder case in Detroit, surrounded by massive, sustained news coverage for the year between the deaths and the end of the trial.   The police immediately suspected DeLisle of killing his children.   The detective assigned to the case, Daniel Galeski, contacted a Michigan State Police psychologist for suggestions on the most effective way to interrogate DeLisle.   The psychologist recommended a special agent with the State Police, John Palmatier, as an effective interrogator and suggested questioning DeLisle about his father's suicide.   Thereafter, under the pretext that he would undergo a polygraph examination, the police took DeLisle to State Police Headquarters in Lansing.   Sgt. Galeski and Agent Palmatier hypnotized DeLisle in the course of a six-hour interrogation.   The videotape of this session filled two videocassettes.   At the end of this interrogation, Galeski arrested DeLisle, drove him back to Detroit, booked him, read him his Miranda warnings, and then continued questioning him until 1:00 a.m.   This second interrogation was audiotaped and transcribed.

At the arraignment the next day, Galeski announced to the press that under his questioning DeLisle had “confessed” to attempting to kill his wife and to killing his children intentionally.   Later, the Mayor and Police Chief announced to the media that DeLisle “had confessed to everything” and that his “premeditation [went] back some time.”   The local press now had an even more sensational story.   Public fascination over DeLisle's impending murder trial and national news coverage encouraged the Detroit media to seek the tapes and transcript of DeLisle's “confession.”

Many members of the print and T.V. media attended DeLisle's preliminary hearing following his arrest at which Galeski recounted his and Palmatier's interrogations of DeLisle and the statements DeLisle made.   To support its case against DeLisle, the government then introduced the videotape, audiotape, and transcript of the interrogations.   Given the extensive press interest in this case and its presence in the courtroom, DeLisle's counsel moved to have the evidence sealed to protect his client's rights to a fair trial and an impartial jury.   The prosecution concurred with this motion.   At that point, Wayne County District Judge Lawrence Emmert adjourned the proceedings to review the tapes and transcript.   When he reconvened the next morning, he bound DeLisle over to the Detroit Recorder's Court on four counts of first degree murder and one count of attempted murder.   Judge Emmert did not release the tapes and transcript to the press.

Thereafter, the Detroit News and the Detroit Free Press challenged Judge Emmert's decision to seal the evidence from the preliminary hearing.   Both newspapers filed motions requesting access to the tapes and transcript of DeLisle's “confession.”   When Judge Emmert informed these parties that the District Court no longer had jurisdiction over DeLisle because he had been bound over to the Recorder's Court, they renewed their motions in the Recorder's Court.   The press motions argued that Michigan Court Rule 8.116, which simply provides public access to court proceedings, and the First Amendment itself gave them an absolute right to the evidence presented at the preliminary hearing, including the confession.   DeLisle opposed these motions, claiming his rights to a fair trial and an impartial jury required the Recorder's Court to seal the confession until his trial.

Answering these motions, Chief Judge Dalton Roberson of the Detroit Recorder's Court accepted the First Amendment argument of the press and ordered that the media be given immediate access to the tapes and transcript of DeLisle's confession.   He ruled that the First Amendment gives the press the absolute right to get from the police and the courts any statements made by the accused, a ruling for which there is no support in the federal case law whatsoever.   Although Judge Roberson never reviewed the tapes or read the transcript of DeLisle's interrogation, he found the defense had presented no evidence of “any potential risk to a fair trial.”   Opinion, No. 89010127, D.C. 27 (Div. # 1) No. 89918172, Sept. 15, 1989, at 4-5.   In fact, he found the defense's arguments were mere speculation, “involving the questions of just how extensively the contents of the exhibits would be covered by the petitioning media, how extensively the media accounts would be read, to what extent and in what manner might those who read them be affected, and most important of all, whether any of the persons who read accounts of such contents would be summoned as potential jurors in the trial of the case.”   Id. at 5.

Judge Roberson ordered the release of the tapes and transcript to the press at 3:45 on a Friday afternoon.   When DeLisle's counsel asked for time to appeal that order before its execution, Judge Roberson flatly refused unless counsel obtained a stay from the Michigan Court of Appeals by 5:00 p.m.   DeLisle's attorney promptly filed an emergency application for a stay and leave to appeal, which the Appeals Court granted shortly before 5:00 p.m.   Upon submissions by the press petitioners and defense counsel, the Michigan Court of Appeals remanded the case to the Detroit Recorder's Court to develop the record on this issue.   The order required the Recorder's Court to retain jurisdiction and instructed District Judge Emmert to provide specific findings whether “there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent,” and whether there are “reasonable alternatives to closure” that would “adequately protect the defendant's fair trial right.”   Order, Docket # 120752, L.C. # 89-10127, Sept. 27, 1989, at 1.

District Judge Emmert entered his findings and conclusions, which explained that the tapes and transcript “contain statements prejudicial to the Defendant and evidence which may be inadmissible at the trial of this cause.”   Findings and Conclusions, Case No. 89918172, Oct. 10, 1989, at 1.   His decision not to release the tapes and transcript to the press was, in his words, “essential to preserve higher values, including basic fundamental fairness, the right of the Defendant to a fair trial and due process of law.”   Id. at 1-2.   He further concluded that reasonable alternatives to closure did not exist given “the massive and continual pretrial publicity” the case had already received.   Id. at 3.   Rather than allow “an explosion of publicity on the eve of trial [that] would prejudice the Defendant[ ] ․ and do violence to ․ traditional concepts of fairness,” District Judge Emmert decided “[j]urors should hear these materials for the first time when they can make an unbiased decision in the settled atmosphere of the courtroom.”   Id. at 4.

Recorder's Court Chief Judge Roberson once again quickly reversed Judge Emmert's decision and reaffirmed his order requiring the release of the confession to the press under the First Amendment.   As before, Judge Roberson did not review the tapes or transcript before he made his decision.   Nonetheless, after finding “[n]othing in the District Court's Findings and Conclusions specifically demonstrat[ing] a substantial probability that defendant's right to [an impartial jury and] a fair trial would be prejudiced by further publicity,” he held that sealing the evidence was an improper prior restraint of First Amendment speech.   Opinion, No. 89010127, D.C. 27 (Div. # 1) No. 89918172, Oct. 18, 1989, at 2 (internal quotations omitted).   Calling the District Court's opinion “conclusory,” Judge Roberson stated “empirical data demonstrates that there remains a high probability of seating a jury capable of rendering a fair and impartial verdict,” citing “the prosecutions of John Z. DeLorean and Karen Norman” as proof.   Id. at 2-3.   Accordingly, he reaffirmed his earlier opinion ordering the Recorder's Court to release the tapes and transcript to the media.   Id. at 3.

DeLisle's counsel again appealed Judge Roberson's order to the Michigan Court of Appeals.   This time, the Michigan Court of Appeals found the press had a First Amendment right of access to DeLisle's “confession,” but limited this right to reviewing DeLisle's statements in the Detroit Recorder's Court.   The press was not allowed to make copies of the tapes or the transcript.   The Court felt this order would “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.”   Order, Docket # 120752, L.C. # 89-10127, Nov. 20, 1989, at 1.   In all other respects, the Court denied DeLisle leave to appeal because it was “not persuaded that defendant can show that there is a substantial probability that his right to a fair trial will be prejudiced by publicity that closure would prevent, or that reasonable alternatives to closure would not adequately protect his fair trial rights.”  “Unless defendant can make such showings,” the Court held “the public and media are entitled to see and hear the evidence relied upon by the district court in binding defendant over.”   Id.

Meanwhile, Judge Robert Colombo of the Detroit Recorder's Court had assumed responsibility for DeLisle's murder trial.   DeLilse's attorney asked Judge Colombo to suppress any statements his client had made to the police during the interrogations.   Judge Colombo heard testimony from Sgt. Galeski, DeLisle's uncle, and Michael Abramsky, Ph.D. See People v. DeLisle, 183 Mich.App. 713, 455 N.W.2d 401, 403 (1990).   His uncle testified that DeLisle was in a trance and hallucinating immediately after the interrogations.   Dr. Abramsky corroborated this by testifying that, after reviewing the tapes, he believed Galeski and Palmatier had used hypnotic techniques on DeLisle.   In his opinion as a licensed clinical psychologist, Dr. Abramsky thought DeLisle's statements were the direct result of these techniques.   See Id. at 405.   Judge Colombo agreed.   After reviewing the tapes and transcript himself, Judge Colombo concluded that DeLisle's statements were the involuntary products of hypnosis and its psychological influence over his exhausted mind.   Accordingly, on December 21, 1989, Judge Colombo ruled DeLisle's confession was involuntary, coerced, and inadmissible at trial.   See id. at 403 (affirming this decision).

Despite Judge Colombo's clear ruling that the statements would not be admitted at the trial, two weeks later, on January 5, 1990, the Michigan Supreme Court made the confession available to the press when it refused to review the order of the Court of Appeals.   Order, No. 87846, C.O.A. No. 120752, L.C. No. 89-10127, Jan. 5, 1990 (Levin and Archer, JJ., dissenting).   So, on January 10, 1990, the Detroit Recorder's Court played the tapes of DeLisle's interrogations for the press in open court and allowed the media to review the transcript.   Because they were not allowed to make copies, many members of the press brought court reporters to make verbatim transcripts of DeLisle's statements.   The next day, under headlines like “ ‘I don't deserve to live’ ” and “He didn't want to stop, police tape says;  ‘I don't know why’,” the local newspapers published selected portions of DeLisle's suppressed statements.   The media's portrayal of DeLisle as the “confessed murderer” of his children commenced that day and spread across local, state, and national news.

Contrary to the findings of the majority and the Michigan courts in this case, see supra at 25-26;  People v. DeLisle, 202 Mich.App. 658, 509 N.W.2d 885, 891-92 (1994) (“Once the media had access to the confession, ․ that coverage was short lived.   During the 51/212 months preceding the trial, news coverage focused on the status of the case and not on its facts.”), the press's portrayal of DeLisle as the confessed murderer of his own children continued unabated until his trial.¹  Within a month of his trial, the Michigan Court of Appeals affirmed Judge Colombo's suppression of his statements, prompting the local press to run extensive stories describing DeLisle's confession once again.   In fact, a spate of articles appeared the week before jury selection.   Because juror questionnaires had been distributed beforehand, these press reports had a heightened effect, given the piqued curiosity of DeLisle's potential jurors.

This explains why all of the potential jurors in the venire knew about the case and over two-thirds already knew details of the suppressed confession.   The judicial press conference, the massive publicity, and the no-holds-barred attitude of the Detroit press also explain why during the days when the jury was actually being empaneled a number of members of the venire were interviewed on the nightly news and were quoted as saying that, based on his confession, they thought DeLisle was guilty.   Similar comments were made in the jury room as the venire members waited to be questioned.   By this time, the proceedings had turned into a circus, as destructive of rational fact-finding as in the Sheppard v. Maxwell case.   Cf. 384 U.S. 333, 352-63, 86 S.Ct. 1507, 1516-23, 16 L.Ed.2d 600 (1966) (castigating the state court for creating a “carnival atmosphere” through its arrangements with the press).   It would have been difficult for DeLisle to get a fair trial in Detroit under any circumstances.   After it became obvious that the judicial press conference had tainted all the potential jurors in the community, the trial became a travesty.

The overwhelming media attention to the trial led Judge Colombo to permit the construction of a glassed-in media booth in the back of the courtroom during the proceedings.   Cameras were set up and running during the trial.   Although DeLisle's counsel repeatedly moved for a change of venue and made a blanket, for-cause challenge against any jurors who knew about the confession, Judge Colombo seated a jury in Detroit.   He refused to change the venue.   All twelve of the jurors who ultimately rendered DeLisle's verdict knew about the case from the press before they ever took their seats.   All but one of his jurors read the Detroit newspapers on a regular basis.   Five jurors had learned the details of his suppressed confession when the Michigan judiciary released it to the press.   One additional juror made veiled comments at voir dire indicating she knew about the confession as well.   J.A. at 303.   The jury was not sequestered, and twenty-eight articles about DeLisle appeared in the Detroit papers during his trial.   A number of these articles also discussed the suppressed confession.   This jury convicted DeLisle of four counts of first-degree, premeditated murder and one count of attempted murder on June 21, 1990.   At his sentencing hearing, the trial judge stated the following on the record:

Sentencing in this case has bothered me ever since the jury returned its verdict.   Only because, I don't know that the Defendant is guilty of the crimes of which he was found guilty.   Did I err in not changing venue based upon the extensive media coverage of this case?   It still enters my mind that the jurors may have been subconsciously influenced by what they already knew about the case from the media reports.   I'm sincerely disappointed in the Court of Appeals' decision requiring a [suppressed] statement of the Defendant to be shown to the media and the Supreme Court's denial of leave to appeal on this issue.

J.A. at 1239-40.   Despite these concerns, the judge sentenced DeLisle to five concurrent terms of life imprisonment.

II. The Law

This case is sui generis.   I am unable to find any highly publicized crime where the state courts suppressed the defendant's confession as coerced and involuntary, yet subsequently made tapes and transcript of the full confession public through a press conference in open court before the defendant's jury trial.   Although a number of United States Supreme Court opinions suggest the proper analysis, the circumstances presented in DeLisle's habeas petition are worse in some ways than in prior cases.   This is not to suggest that DeLisle's trial was a bigger circus than Sam Sheppard's, see Sheppard, 384 U.S. at 342-50, 86 S.Ct. at 1511-16, or that the jury was more prejudiced than Leslie Irvin's, see Irvin v. Dowd, 366 U.S. 717, 725-28, 81 S.Ct. 1639, 1644-46, 6 L.Ed.2d 751 (1961).   What makes this case especially troubling is the unfortunate combination of two independently prejudicial influences on DeLisle's trial-the Michigan courts' release of his suppressed confession to the media and the inherent prejudice involved when the jury learns extrajudicially the details of a confession without even knowing that it was coerced and unreliable.

The first and most egregious constitutional error in the state proceedings was the Michigan judiciary's official role in the release of DeLisle's confession.   A judicial press conference held to release a defendant's suppressed confession before trial is unprecedented.   The only two judges in Michigan who actually reviewed the tapes and transcript, Judge Emmert and Judge Colombo, found DeLisle's statements were hypnotically induced, coerced, and inadmissible.   Judge Roberson, the Michigan Court of Appeals, and the Michigan Supreme Court never reviewed the tapes and transcript.   Two weeks after Judge Colombo suppressed the confession, the Michigan Supreme Court still failed to find any problem with releasing these now-inadmissible statements to the press prior to trial.

In light of massive publicity and the media campaign in Detroit to convict him, DeLisle made a motion for a change of venue, contending that due process so required.   Justice Jackson's language in Shepherd v. Florida on this subject applies with equal vigor to the DeLisle case:

No doubt this trial judge felt helpless to give the accused any real protection against this out-of-court campaign to convict.   But if freedoms of press are so abused as to make fair trial in the locality impossible, the judicial process must be protected by removing the trial to a forum beyond its probable influence.   Newspapers, in the enjoyment of their constitutional rights, may not deprive accused persons of their right to fair trial.   These convictions, accompanied by such events, do not meet any civilized conception of due process of law.

341 U.S. at 52-53, 71 S.Ct. at 550-51 (emphasis added).

Sheppard v. Maxwell is the Supreme Court's major decision protecting a criminal defendant's right to a fair trial against an uninhibited press.   Granting a writ of habeas corpus to Sam Sheppard, the Court set out the constitutional duty of state courts responsible for trying sensational criminal cases:

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.   And appellate tribunals have the duty to make an independent evaluation of the circumstance․   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.

384 U.S. at 362-63, 86 S.Ct. at 1522-23.   When courts fail this duty, their proceedings “entirely lack[ ] the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.”  Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975);  see also Sheppard, 384 U.S. at 355, 86 S.Ct. at 1518 (“we believe that the arrangements made by the judge with the news media caused Sheppard to be deprived of that ‘judicial serenity and calm to which [he] was entitled.’ ”).

What Sheppard established under the Sixth and Fourteenth Amendments is also true under the First Amendment.   In Gannett Co. v. DePasquale, the Court held that a trial court has “an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”  443 U.S. at 378, 99 S.Ct. at 2904.   Although the parties representing the press in Gannett argued that they had a First Amendment right to access a pretrial suppression hearing, the Court declined to extend the First Amendment so far.   Relying on Sheppard, the Court announced the following, which is especially relevant in light of what transpired in DeLisle's case:

Publicity concerning pretrial suppression hearings ․ poses special risks of unfairness.   The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury.   Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.

The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial.   After the commencement of the trial itself, inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means.   When such information is publicized during a pretrial proceeding, however, it may never be altogether kept from potential jurors.   Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun.

Id. at 378-79, 99 S.Ct. at 2905 (citations and footnotes omitted).   Thus, ten years before the First Amendment rulings by Chief Judge Roberson and the Michigan appellate courts in this case, the Supreme Court had made it perfectly clear that release of such material to the press is not required by the First Amendment and is indeed forbidden by the Sixth and Fourteenth Amendments.

In light of these clear and fundamental principles enunciated by the Supreme Court, it is not surprising that I am unable to find any other instances in which a state court has held a defendant's confession involuntary and inadmissible with one hand and then released it to the press with the other.   The only analogous cases involve executive officials who leaked a confession to the press before trial.   In each of these instances, the reviewing court condemned such actions as especially prejudicial.   See Rideau v. Louisiana, 373 U.S. 723, 725-27, 83 S.Ct. 1417, 1418-20, 10 L.Ed.2d 663 (1963);  Irvin, 366 U.S. at 719-20, 725-27, 81 S.Ct. at 1640-41, 1644-45;  id. at 730, 81 S.Ct. at 1646-47 (Frankfurter, J., concurring);  Stroble v. California, 343 U.S. 181, 192-93, 72 S.Ct. 599, 604-05, 96 L.Ed. 872 (1952);  id. at 200-01, 72 S.Ct. at 609-10 (Frankfurter, J., dissenting);  Shepherd, 341 U.S. at 51-53, 71 S.Ct. at 549-51;  Griffin v. United States, 295 F. 437, 439-440 (3d Cir.1924);  see also Sheppard, 384 U.S. at 355, 86 S.Ct. at 1518;  Leviton v. United States, 343 U.S. 946, 947-49, 72 S.Ct. 860, 860-62, 96 L.Ed. 1350 (1952) (Frankfurter, J.).

If it is highly improper for the prosecution to leak a confession to the press, the potential for prejudice increases greatly when, as here, the state courts legitimate the practice by playing recordings of involuntary, coerced, inadmissible statements for the media in the same court where a defendant will subsequently be tried.   See Sheppard, 384 U.S. at 355, 86 S.Ct. at 1518;  cf.   Report of the [U.S. Judicial Conference] Committee on the Operation of the Jury System on the “Free Press-Fair Trial” Issue, 45 F.R.D. 391, 401, 407-08, 410 (1968);  The Rights of Fair Trial and Free Press:  The American Bar Association Standards, Standards 8-2.1(c)(i), 8-2.2, 8-3.2 (1981).   By maximizing rather than minimizing the prejudicial publicity before DeLisle's murder trial, the Michigan courts violated their constitutional duty under the Sixth and Fourteenth Amendments.   See Sheppard, 384 U.S. at 362-63, 86 S.Ct. at 1522-23;  Gannett, 443 U.S. at 378-84, 99 S.Ct. at 2904-08.

The second, independent, constitutional error in the state proceedings resulted from the jury's knowledge of DeLisle's suppressed confession.   Such knowledge is inherently prejudicial and cannot be eliminated by jury instructions.   As both Judge Emmert and Judge Colombo realized after reviewing the tapes and transcript, DeLisle's statements to the police were as likely the result of his hypnotic interrogation and sense of personal responsibility and guilt, combined with his exhaustion and grief following his childrens' deaths in the same car in which his father committed suicide, as they were a reflection of his true intent during the accident.   For example, when the questioning began, DeLisle called the suggestion that he intentionally drove his family into the river “ludicrous.”   He said he loved his wife and children and never intended to hurt them.   When asked whether he meant to kill his family, he repeatedly said “No.”   Yet later, he was drawn into conflicting confessions and denials, such as admitting to pushing down the accelerator and then immediately denying that he wanted his wife to drown.   By the middle of the interrogation, he began making senseless statements about having to work overtime so the interrogators could have a day off.   He also asked random questions about the “afterlife” as well as the “hellhole” the interrogators were living in.   By the end, after hours of subtle coercion, DeLisle said he did not deserve a trial.   He had been reduced to one who blankly requested, “Electrocution.   Gas chamber, hang me.   I don't care.   I don't deserve to live․   Just throw away the key.”

By making these inadmissible statements public through a judicial press conference prior to DeLisle's trial, the Michigan courts denied him due process of law and a fair and impartial jury.   This decision was much more prejudicial to DeLisle than if the courts had sealed his coerced statements from media scrutiny but had admitted them as evidence at this trial.   At least in those circumstances, DeLisle could have confronted the government's witnesses, attempted to contradict their portrayal, and cross-examined their testimony in front of jurors who had no prior exposure to the evidence.   Again Justice Jackson's words from Shepherd v. Florida are in point:

If a confession had been offered in court, the defendant would have had the right to be confronted by the persons who claimed to have witnessed it, to cross-examine them, and to contradict their testimony.   If the court had allowed an involuntary confession to be placed before the jury, we would not hesitate to consider it a denial of due process of law and reverse.   When such events take place in the courtroom, defendant's counsel can meet them with evidence, arguments, and requests for instructions, and can at least preserve his objections on the record.

But neither counsel nor court can control the admission of evidence if unproven, and probably unprovable, “confessions” are put before the jury by newspapers and radio.   Rights of the defendant to be confronted by witnesses against him and to cross-examine them are thereby circumvented.

341 U.S. at 52, 71 S.Ct. at 550.

Pretrial publicity about an inadmissible confession is the paradigm example of a prejudicial influence.   See Rideau, 373 U.S. at 725-26, 83 S.Ct. at 1418-19;  United States v. Johnson, 584 F.2d 148, 154 (6th Cir.1978).  “A prospective juror who has read or heard of the confession ․ repeatedly in the news may ․ be unable to form an independent judgment as to guilt or innocence from the evidence adduced at trial.”  Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1333, 96 S.Ct. 251, 255, 46 L.Ed.2d 237 (1975) (Blackmun, Circuit J.).   The majority has abdicated its responsibility to ensure that the jury's extrajudicial access to DeLisle's confession did not contribute to his conviction.  Arizona v. Fulminante, 499 U.S. 279, 295-96, 111 S.Ct. 1246, 1257-58, 113 L.Ed.2d 302 (1991).   As the Supreme Court stated in Fulminante, “A confession is like no other evidence.   Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.”   Id. at 296, 111 S.Ct. at 1257.   Moreover, the use of “involuntary verbal confessions in State criminal trials is constitutionally obnoxious” not just because they are unreliable, but because coerced confessions also “offend the community's sense of fair play and decency.”  Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952);  see also Blackburn v. Alabama, 361 U.S. 199, 205-07, 210, 80 S.Ct. 274, 279-80, 282, 4 L.Ed.2d 242 (1960);  Spano v. New York, 360 U.S. 315, 320-21, 79 S.Ct. 1202, 1205-06, 3 L.Ed.2d 1265 (1959);  Payne v. Arkansas, 356 U.S. 560, 567-68, 78 S.Ct. 844, 849-51, 2 L.Ed.2d 975 (1958).

The inherent prejudice of the jury's access to a suppressed confession distinguishes DeLisle's appeal from those involving normal allegations of jury prejudice, a point the majority fails to recognize.   Today's holding relies primarily on the argument that each juror said, in effect, “I can be fair and put out of my mind what I know already.”   This argument does not wash in this case.   Where the jury is exposed to judicially released, uncross-examined, inadmissible evidence of the defendant's confession, we may not indulge in the fiction that the jury can somehow put this evidence aside.  Fulminante, 499 U.S. at 296, 111 S.Ct. at 1257-58;  see also Jackson v. Denno, 378 U.S. 368, 388-89, 84 S.Ct. 1774, 1786-88, 12 L.Ed.2d 908 (1964);  Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring) (characterizing the presumption indulged in by the majority “unmitigated fiction”);  Goins v. McKeen, 605 F.2d 947, 952-54 (6th Cir.1979).   There is no case that indulges in the presumption that jurors can be impartial when they know of an inadmissible, out-of-court confession.  Shepherd v. Florida directly contradicts the majority's position.   Federal courts have not indulged in the presumption suggested by the majority in any involuntary confession case.   See Fulminante, 499 U.S. at 296, 111 S.Ct. at 1257-58;  Jackson, 378 U.S. at 388-89 & n. 15, 84 S.Ct. at 1786-88 & n. 15;  see also Miller v. Fenton, 474 U.S. 104, 112-18, 106 S.Ct. 445, 450-54, 88 L.Ed.2d 405 (1985) (rejecting Patton v. Yount's deference to juror impartiality and requiring “plenary federal review” in habeas cases involving the voluntariness of a confession);  28 U.S.C. § 2254(d)(7) (no presumption where the “State court proceeding” “denied the due process of law”).

DeLisle's jury knew the details of his confession but did not know it was involuntary and unreliable.   DeLisle had no way to attack or discredit a confession the jury learned about outside the courtroom.   This is one of the few contexts “in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”  Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968).   We cannot assume that a jury will follow instructions never given about evidence never offered in court but known by the jury anyway.   The only thing these jurors may not have learned in the press was that the confession was coerced and unreliable.

The inherent prejudice caused by the jurors' knowledge of DeLisle's confession is compounded here because they knew the court had ordered its release.   The pretrial publicity would not have been as pervasive, or the confession so persuasive, had the Michigan courts not given legitimacy to the confession by releasing it.   Here DeLisle's “anticipatory trial by newspapers” and T.V. was instigated by those responsible for his subsequent trial by jury.   See Irvin, 366 U.S. at 729, 81 S.Ct. at 1646 (Frankfurter, J., concurring).   What makes this case unprecedented is that the state judiciary invited reporters and cameras into the courtroom to review and publicize evidence that the trial judge had determined was too prejudicial for the jury to consider.

I believe that the Michigan courts' release of DeLisle's confession to the jury through the press was a manifest error that “fatally infected” his trial and destroyed “that fundamental fairness essential to the very concept of justice.”  Stroble, 343 U.S. at 191-92, 72 S.Ct. at 604.   Notwithstanding the majority's acquiescence in the constitutional errors committed below, our collateral review owes no special deference to the jurors' assurances of impartiality under these circumstances.   See Patton v. Yount, 467 U.S. 1025, 1031-32, 1040, 104 S.Ct. 2885, 2888-89, 2893-94, 81 L.Ed.2d 847 (1984);  Mu'Min v. Virginia, 500 U.S. 415, 448, 111 S.Ct. 1899, 1917, 114 L.Ed.2d 493 (1991) (Kennedy, J., dissenting) (citing Sheppard, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600;  Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965);  Rideau, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663;  and Irvin, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751);  28 U.S.C. § 2254(d)(7).

The judicial news conference held in the Detroit Recorder's Court, in effect, overruled Judge Colombo's order suppressing evidence about the confession at DeLisle's trial.   Affirming this turn of events essentially abolishes the constitutional requirement that involuntary confessions and illegally obtained evidence be suppressed at trial.   If state courts can release suppressed confessions and inadmissible evidence to the press before trial, these constitutional requirements have become as hollow a formality as the trial itself.   See Rideau, 373 U.S. at 726, 83 S.Ct. at 1419.   As Chief Justice Hughes stated in Brown v. Mississippi, “[t]he State is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ”  297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682 (1936).   The American theory of justice, Justice Holmes observed ninety years ago, holds that the “conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”  Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907).   By the same token, today the television should not be allowed to substitute for the witness stand, nor can newsprint replace judicial control over the admission of trial evidence.   These principles of justice are just as fundamental as the prohibitions against torture and lynching.  Brown, 297 U.S. at 285-86, 56 S.Ct. at 464-65.

Today's holding gives the states the green light to return to the days of Brown v. Mississippi, where state police could obtain a conviction based solely on a confession that they beat from the defendant.   We need only substitute hypnosis for brutality.   All the state courts must do to avoid a constitutional violation is have the trial judge suppress a confession so obtained at the defendant's trial and then deny a motion for a change of venue to a place where jurors have no pretrial knowledge of the case.   It can then guarantee his conviction by holding a judicial press conference from which all potential jurors will learn that the defendant confessed.   Conveying the evidence to the jury in this way will maximize its effect while avoiding the defendant's Sixth Amendment rights to confront his interrogators and to contradict their testimony.   Has our judicial system come to this in our desperate need to be seen as tough on crime and criminals?

FOOTNOTES

1.   The Detroit News published thirteen articles about DeLisle's case between the judicial press conference on January 10, 1990, and the beginning of DeLisle's trial on Monday, June 11, 1990.   See Detroit News, Jan. 10, 1990, at A1 (“DeLisle:  ‘I want out of debt’ ”;  “DeLisle is asked:  ‘You were driving into the river on purpose’ He replies, ‘Might as well have been driving into the river on purposes.’ ”);   id., Jan. 11, 1990, at A1 (“I don't deserve to live”);  id., Jan. 11, 1990, at A8 (“[F]or nine hours ․ DeLisle and police talked of demons, the afterlife, and, finally, DeLisle's admission that he purposely drove into the Detroit River on Aug. 3, drowning his four children.”);   id., Jan. 13, 1990, at A8 (“He told Wyandotte police he did not want to stop the family station wagon from going into the river.”);   id., Jan. 14, 1990, at A19 (editorial) (“Maybe we should make careful study of the Lawrence DeLisle Story part of high school family living classes, or a state-mandated requirement for getting a marriage license.   It might save more lives than AIDS lectures.”);   id., Feb. 1, 1990, at B3;  id., Feb. 2, 1990, at B3 (“A survey of prospective jurors shows most believe Lawrence DeLisle murdered his four children ․ 66 percent said they believed DeLisle confessed to intentionally driving his wife and children into the Detroit River”);  id., Feb. 24, 1990, at A3;  id., May 9, 1990, at B1 (“Court bars DeLisle's confession”);  id., June 2, 1990, at A3;  id., June 3, 1990, at C1 (“On the recording, released to the media in January, DeLisle said he stepped on the gas pedal to scare his nagging wife.  ‘I didn't want to (brake).   I don't know why,’ he told Galeski.”);   id., June 6, 1990, at E7 (“Poll:  Jurors know about DeLisle case”;  “All potential jurors for Lawrence DeLisle's murder trial who responded to a pretrial survey said they were familiar with his case, and two-thirds said they knew about DeLisle's purported confession․   The survey responses indicted many jurors had already made up their minds about the case.  ‘I only know that he drove his family in a river and that he planned the whole thing,’ one person wrote.  ‘He killed his kids and almost his wife.   A very sick man,’ one man wrote.”);   id., June 7, 1990, at B2 (“Columbo made it clear during the first day of jury selection that he would not remove jurors from consideration simply because they may have heard media reports that DeLisle made admissions of guilt or allegedly tried to kill his family on previous occasions.”).The Detroit Free Press published nine articles during the same period.   See Detroit Free Press, Jan. 11, 1990, at A1 (“He didn't want to stop, police tape says;  ‘I don't know why’ ”);  id., Jan. 11, 1990, at A10 (“The DeLisle tape:  his statement to police”);  id., Jan. 12, 1990, at A1 (“DeLisle finally admitted deliberately driving his station wagon into the Detroit River, drowning his children, and tearfully expressing his gratitude to police for their kindness.”);   id., Jan. 13, 1990, at A8 (“He told Wyandotte police he did not want to stop the family station wagon from going into the water.”);   id., Jan. 14, 1990, at D1 (editorial) ( “Is it possible that everyday pressures-a thankless job, credit card debts, sexual friction with a spouse-could push a man to such an unforgivable act?  ․ How many more Lawrence DeLisle's are out there?  ․ So we have men driving into rivers and parents selling babies and husbands injecting wives with poison to rid themselves of things such as debt or marital problems.”);   id., Jan. 27, 1990, at A3 (“DeLisle detective likes ‘Dirty Harry’ image”;  quoting Galeski:  “Respect for police officers has diminished.   It used to be everyone was afraid of them.”);   id., Feb. 24, 1990, at A3;  id., May 9, 1990, at B8 (“Court rules DeLisle's confession was forced”);  id., June 2, 1990, at A3 (“No-nonsense judge won't allow circus at the DeLisle trial”).

RYAN, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined.   MERRITT, J. (pp. 310-320), delivered a separate dissenting opinion.