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June 26, 2004

Court Roster Will Decide Future of Death Penalty

By WILLIAM GLABERSON

Disappointed supporters of capital punishment lashed out on Thursday at a ruling from the state's highest court that effectively suspended the state's death penalty. The judges in the court's 4-to-3 majority, they said, showed that they were out to sabotage capital punishment and would never approve an execution.

Death penalty opponents, in contrast, said the court had finally shown that it was not lost in a sea of technicalities and was finally focusing on fundamental injustices in the capital punishment law.

Both assertions may have been premature - political theater designed, perhaps, to ratchet up pressure on the judges for the next case involving the death penalty.

But the debate demonstrated the central role that the State Court of Appeals is playing in deciding the fate of capital punishment and showed that a little-understood tribunal in Albany is clearly divided on the death penalty.

While some prosecutors, juries and legislators have been willing to condemn a handful of killers to death, as the court showed again on Thursday, it is the seven judges of the court who make the final decision. That decision, and the judges' role as the gatekeepers of death row, have turned a spotlight on the court, focusing attention on its makeup, subjecting it to public scrutiny and raising questions about its direction.

"I believe that the majority of the court in this case really did substitute their judgment for the judgment of elected officials of the State of New York,'' Gov. George E. Pataki said yesterday at a news conference in Oyster Bay, on Long Island. "I think that's just the wrong thing to do."

Mr. Pataki said if there was a way to repair the problem in the law identified by the court, he would try to pass an amendment quickly. On Thursday, the court ruled that the Legislature improperly required judges to tell jurors in capital cases that if they failed to reach a verdict during the penalty phase, the judge would impose a sentence that would leave the defendant eligible for parole after 20 to 25 years. The decision said the instruction effectively coerced jurors to vote for execution.

The court's four decisions overturning death sentences under the state's 1995 law have unveiled some of the judges' views on capital punishment. The court has never approved a death sentence. Even if the Legislature moves quickly to repair the flawed jury instructions cited by the court, lawyers say it could be half a dozen years or more before the court again faces the prospect of an execution.

That almost certainly means the court will include new judges by the time it reviews another jury's death sentence. That could make the death penalty an issue in the governor's race in two years; the governor appoints the court's judges.

"Whether the amended death penalty statute survives is absolutely going to depend on who the next governor is,'' said Vincent M. Bonventre, an Albany Law School professor who studies the court.

Some court watchers said capital punishment supporters had reason to be concerned about the court as it is now. The four judges who made up the majority on Thursday, they said, might be open to other challenges to other sections of the death penalty law. "The reasonable prediction is they would invalidate several other provisions,'' said Eric M. Freedman, a Hofstra University law professor.

But by the time a new murder case works its way through a trial and into an appeal, each of the four judges who were in the majority on Thursday could be off the bench.

George Bundy Smith, a methodical former trial judge who wrote the majority opinion on Thursday, has become the court's most reliable critic of the death penalty. His 14-year term will end in 2006.

The term of the judge believed to be his closest ally on death penalty issues, Carmen Beauchamp Ciparick, once a Legal Aid lawyer, will expire in 2008.

The chief judge, Judith S. Kaye, who also voted with the majority, is often described as having grown more conservative. But some death penalty opponents say they think she has retained what they saw as an aversion to capital punishment in her early years on the bench in the 1980's. Her term ends in 2007.

All three of the judges were appointed by Gov. Mario M. Cuomo, the Democrat who was an opponent of capital punishment. Under New York law, a commission reviews candidates for the Court of Appeals and makes recommendations to the governor. The governor then nominates a candidate who must be approved by the State Senate.

Several lawyers said yesterday that they were most intrigued by the role of the fourth judge in the majority, Albert M. Rosenblatt, who is viewed as a swing vote on capital punishment. He was an appointee of Mr. Pataki, a Republican.

As a trial judge in Dutchess County, Judge Rosenblatt imposed the sentence in a case that led to a 1984 Court of Appeals decision that overturned what was left of the state's previous death penalty law. At the time, he suggested that he had reservations about capital punishment.

He alluded to those concerns in an opinion concurring with the majority that bristled at criticisms leveled by the dissenting judges. Judge Rosenblatt wrote that overturning the death sentence was "not part of some design to devise creative obstructions to the death penalty," as he said the dissenters had asserted.

"Many trial judges in the United States and in New York (myself included),'' he wrote, "have not shrunk from imposing death sentences on defendants even though, as judges, we might have qualms about it.'' Judge Rosenblatt reaches the court's mandatory retirement age of 70 in 2006.

In what could be a new and long phase of New York's death penalty battle, the three judges who dissented could well win the argument through longevity. All Pataki appointees, they have much more time remaining on the court than the Cuomo appointees.

The term of the judge with the longest potential tenure, Susan Phillips Read, is not to end until 2017. She is considered a reliable vote for capital punishment. Another dissenter, Victoria A. Graffeo, is also considered a reliable pro-death penalty vote; her term expires in 2014.

Many lawyers were talking yesterday about Judge Robert S. Smith, the author of the three-judge dissenting opinion. Though he is known to be conservative, some death penalty supporters had openly expressed concerns about him after Mr. Pataki named him to the court last year because he had done work as a defense lawyer opposing capital sentences.

His dissent proved that he is far from an automatic critic of the death penalty. The 1995 law "scrupulously observed" constitutional rights, he wrote in his dissent.

Ever since he was named by Mr. Pataki, Judge Smith, now 59, has appeared anxious to dispel the suggestion that he might undermine the death penalty. During his confirmation hearing before the State Senate's judiciary committee in January he provided a hint of his views when a proponent of the death penalty asked if he would respect the Legislature's desire to have capital punishment.

"It is clearly not the function of the court,'' he testified, "either to sabotage the death penalty statute or to so micromanage the death penalty that it becomes unworkable.''

The future of the death penalty in New York could depend on the way judges who sit on the court years from now answer that question. Judge Smith does not face mandatory retirement until 2014.


Ruling on Death Penalty Clouds Existing Sentences

By DAMIEN CAVE

An appeals court decision on Thursday to overturn the death sentence of Stephen LaValle, who was convicted almost five years ago of raping and murdering a 32-year-old Suffolk County teacher, has thrown the state's three other death row cases into legal limbo. While legal experts say it is unlikely that any of the three death row inmates will now be executed, prosecutors, defense lawyers and victims' families said yesterday that they were still trying to figure out where their cases stood and what would happen next.

The case of John B. Taylor, lawyers say, poses the thorniest legal questions. Mr. Taylor, 40, was convicted in 2002 of killing two employees who had been bound and gagged at a Wendy's restaurant in Queens, and of commanding a mentally retarded accomplice to shoot five others, two of whom survived. He was sentenced to death on Jan. 8, 2003.

One of Mr. Taylor's lawyers, Kevin M. Doyle, chief attorney for the New York Capital Defender Office, a state-financed legal office, noted that the decision on Thursday by the New York State Court of Appeals explicitly stated that "under the present statute, the death penalty may not be imposed." He said that Mr. Taylor, whose case is on appeal, must be resentenced. "John Taylor was tried and sentenced to death under this statute, therefore on the face of the decision, he can't be executed," Mr. Doyle said.

But there is a possibility that Mr. Taylor's death sentence will stand, said the Queens district attorney, Richard A. Brown, because Justice Steven W. Fisher, the judge in the case, anticipated the legal problems that led Mr. LaValle's sentence to be overturned. In the LaValle case, the Court of Appeals ruled that it was not the conviction at issue, but rather the judge's instructions to the jury. The Legislature violated the due process provision of the Constitution, the court said, by requiring judges to tell jurors that if they deadlocked on a sentence, the judge would impose one that would make the defendant eligible for parole after 20 to 25 years. Such instructions, the court said, essentially coerced jurors to vote for execution because they might fear that a vote against it would allow for the release of criminals convicted of particularly gruesome murders.

In Mr. Taylor's case, Justice Fisher, who had been training judges in how to handle death penalty cases since 1995, told the jury that if they came back deadlocked, he would "almost certainly impose" a sentence of 175 years to life, keeping Mr. Taylor ineligible for parole until every year was served.

"What Fisher did was craft an instruction to take the coercive or alleged coercive nature of the state's deadlock provision out of the case," Mr. Brown said. "He delivered a charge that in effect told the jury that if they were deadlocked, he would sentence the defendant to life in prison without any possibility of parole." This, Mr. Brown said, removed the possibility of a juror favoring a death sentence in order to keep a convicted killer off the streets - an indirect form of coercion of a juror that the Court of Appeals declared unconstitutional.

For the families of victims killed in the Wendy's massacre, such legal nuances only reignited old feelings of anger and confusion. Nearly four years after the crime, the families of many of the victims stay in touch, and on Friday, they called each other to express their frustration with the latest legal development. Joan Truman-Smith, the mother of Anita C. Smith, a 22-year-old Wendy's cashier, said that she planned to picket on Queens Boulevard, near the courthouse, if Mr. Taylor's death sentence failed to stand. "John Taylor should be dead already," she said. "He shouldn't be in jail; there shouldn't be this appeal."

The state's two other death row cases will likely be handled before Mr. Taylor's, and it appears that their death sentences have even less chance of being carried out. Both cases, as with the LaValle case, were tried in Suffolk County. Nicholson McCoy, 43, was sentenced to death on August 16, 2000, for sodomizing and murdering a fellow employee at an Edwards supermarket where they both worked.

Prosecutors said that Mr. McCoy would almost certainly have to be resentenced because his case involved only a single murder, and it is likely that the charge to the jury in his trial was similar to that at Mr. LaValle's.

Robert Shulman's case could be more complicated because it involved multiple murders. Mr. Shulman, a former postal worker, was convicted in 1999 of bludgeoning and dismembering three prostitutes: Kelly Sue Bunting, 28, of Hollis, Queens, whose body was found in December 1995 in a Dumpster in Melville; an unidentified woman whose body was found in December 1994 in a shallow grave in Medford, in Suffolk County; and Lisa Ann Warner, 18, of Jamaica, Queens, whose body was found in April 1995 at a Brooklyn trash recycling plant. He was also convicted in January 2000 for the murder of two other victims whose bodies were found in Westchester County.

Thomas Spota, the Suffolk County district attorney, issued a statement Thursday in response to the LaValle decision stating that in the case of a deadlock a life sentence would be rational "in these circumstances." Mr. Spota did not return several phone calls seeking clarification yesterday.

The Legislature could also alter the outcome of the state's death row cases. If lawmakers remove or fix the deadlock provision, prosecutors said, Mr. Shulman, Mr. McCoy and Mr. Taylor could be subjected to a second penalty phase in which they could receive another round of death sentences. The LaValle case may simply be the first step in a wider attempt to fix the law.

"The more errors that we eliminate the more we understand what the Legislature intended," says James M. Catterson Jr., the Suffolk County district attorney who prosecuted Suffolk County's three death row cases. "If the will of the people is to have the death penalty, it's better to have one that works."

Copyright 2004 The New York Times Company