[FjFHQLJQ]

N.Y. Assembly Debating Fate of State Death Penalty

By Michael Powell
Washington Post Staff Writer



Saturday, February 12, 2005; Page A03

NEW YORK, Feb. 11 -- The death house haunted Stephen Dalsheim for decades.

As a young man counseling inmates, he'd watch the condemned arrive at Sing Sing, a huge prison alongside the Hudson River. Dalsheim became the prison's superintendent in 1977 and found a closet filled with boxes of death row records.

At night he'd open the files and read.

"I saw what happens to the organs when men are electrocuted," said Dalsheim, 77, whose curly hair now is a cloud of white. "I know there are innocent people on death row -- I met a few of them. It's a barbaric system, and it must end."

The retired superintendent spoke publicly against the death penalty for the first time at a State Assembly hearing Friday. It's all part of an extraordinary drama playing out in New York, in which the legislature appears poised to toss out the death penalty.

Ten years ago, George E. Pataki (R) rode the death penalty issue to the governor's mansion, defeating Gov. Mario M. Cuomo (D). Soon after, Pataki and the legislature reinstated the penalty by wide margins.

Last June, however, New York's highest court struck down the law on what amounted to a technicality. Pataki supported a quick legislative fix, but the Democratic-controlled assembly balked. Now Republican and Democratic leaders alike acknowledge that the law is likely to die.

Many legislators, not least several who supported the death penalty in 1995, say much has changed. National attention has fixed on wrongful convictions, as several dozen death row inmates have been freed after evidence -- often DNA -- proved their innocence.

In Illinois in 2003, then-Gov. George Ryan (R) commuted the death sentences of 167 inmates after 13 inmates were found to have been wrongly convicted. Last week, the Kansas Supreme Court struck down that state's death penalty law, stating that it essentially forced juries -- when all evidence is equal -- to choose the death penalty instead of life in prison.

(The view is very different at the federal level, where the Clinton and Bush administrations have expanded the potential use of the death penalty for certain drug and terrorism crimes, as well as for homicide.)

Public perceptions have changed, too. In the late 1980s, crack cocaine fueled a fast-running plague of homicides and brutal robberies. Urban society seemed frayed and incapable of safeguarding its citizenry.

Now crime rates have been falling for a decade, and public clamor for the death penalty has become muted. A recent poll found that 53 percent of New Yorkers favor life sentences rather than the death penalty.

Assemblyman Joseph R. Lentol (Brooklyn) watched his working-class constituents suffer and in 1995 he was one of many Democrats who voted for the death penalty. Now he's a Democratic leader -- and ready to vote against it.

"You know, as I grow older, I realize maybe we can get beyond vengeance," he said. "The death penalty is fraught with the possibility that you could execute an innocent man. Who could live with that?"

Throughout its history, New York executed inmates with a startling efficiency. Executioners have put 695 people to death, second only to Texas. New York has not carried out any executions since the law was reinstated in 1995. Convicted murderer Eddie Lee Mays was the last person put to death, in 1963.

Despite the new opposition to capital punishment, the Republican-controlled state Senate still supports the death penalty. Assembly leaders acknowledge that if they put the measure to a vote -- rather than letting it die with a floor debate -- the margin would be thin.

"The governor believes that a strong death penalty law is a critical deterrent to crime," spokesman Todd Alhart said. "The assembly leadership should stop their delaying tactics and bring this to a vote."

Assemblyman Ryan Scott Karben (D) represents a suburban district north of the city and spoke of wrestling with the issue late into the night, reading books and reports. He would not argue that the death penalty is anything but brutal. Yet he believes it's a weapon the state must possess.

"I believe there are some crimes so horrific that it irrevocably rends the social contract," Karben said. "I think there's a place for collective disgust with morally reprehensible acts."

Dalsheim, the retired superintendent, is a political liberal but no naif. He readily acknowledges the state's maximum-security prisons hold many exceedingly dangerous men. But he came to know some of those men, including death row inmates, and he spoke of the cumulative impact of the death penalty -- on the inmates who live in its shadow and the guards who lead them to their deaths.

Two former executioners committed suicide after many years of such duty.

"There was this big old-line committed officer, a well-liked fellow, and he oversaw the executions," Dalsheim said. "Afterwards, he'd get very, very drunk and not come in for several days."

Dalsheim paused in the telling, swallowing twice. "It's terrible, terrible -- I get very emotional thinking about it. I certainly don't like terrorism or murder but there has to be a better way than putting men to death."

© 2005 The Washington Post Company

[beenBinybelia]

March 2, 2005

Republicans Seek a Bipartisan Vote on a Bill to Reinstate the State's Death Penalty

By AL BAKER

LBANY, March 1 - The Republicans who control the State Senate pushed forward a measure Tuesday to reinstitute the death penalty in New York State, voting it out of committee so that it can be considered by the full Senate next week.

In doing so, Joseph L. Bruno, the Senate's Republican leader, urged that the full State Assembly also be allowed to vote on the issue, saying that lawmakers needed to take public positions to ensure a more open process in Albany. And Gov. George E. Pataki, who rode into office in 1995 on support for the death penalty, said a vote by the Assembly was "what you expect in a democracy."

But the Democrats who control the Assembly are more skeptical about reinstituting the death penalty, and they suggested on Tuesday that they have been the most open about the issue, having held a series of public hearings around New York on capital punishment. In fact, they chided Mr. Bruno for assuring ease for the Senate death penalty bill even before that chamber's codes committee met to debate and vote on it.

"It doesn't do Joe Bruno any good to announce the results of votes before his committees have acted," said Assemblyman Richard L. Brodsky, a Democrat from Westchester County.

The death penalty was recently invalidated by the state's highest court, and Republicans want to pass legislation to fix flaws in the law, essentially reinstating capital punishment in the state.

In the Assembly, though, there has been mounting opposition to resurrecting the death penalty, and central members who voted for it in 1995 have said that new provisions in the law and a changed political landscape make it more likely that it will not be revived. Republicans suspect that beneath the public veneer of the Assembly hearings has been an underlying agenda to stop the death penalty from being reinstituted, a notion that Democrats deny.

"Any member of the Assembly can request a bill to be considered and, in the rules of the Assembly, they must be considered," said the Assembly speaker, Sheldon Silver. While he is in favor of the death penalty, Mr. Silver said any bill in his house must move through a series of committees and could be torpedoed at any stage.

On the Senate, Democrats accused Republicans of rushing the bill.

"This was added to the agenda on Friday, we are putting it on the floor next week, and I would say that quite honestly, I think this makes our house look pretty bad compared to the work the Assembly has done on this," said Senator Eric T. Schneiderman, a Manhattan Democrat, at a committee meeting. He said Republicans could use hearings to induce evidence to support his position. "I don't really understand why we're trying to do a quick patchwork job."

Copyright 2005 The New York Times Company

[Ifroham4]

Here's an opinion then:

While in theory I like the death penalty and have no moral or ethical opposition to it, I really think that life in prison with no chance for parole is a worse sentence.

And since so many people morally oppose the death penalty, it would make a lot of people happy. I'm not sure what the stats are - do more people support or oppose the death penalty? Surely even people who support capital punishment can understand the logic behind overturning it in favor of life sentences. (Although I must say that the conditions most inmates live in - cable TV, warm meals and a bed - bother me somewhat considering the number of people living in poverty or living on the streets. Prison is bad as is, don't misunderstand, I know that it's not a fun place to be, but I think it should be worse punishment than it is.)

Most of the people who ardently support liberal use of capital punishment do so because of moral/religious convictions ("an eye for an eye" is from the Bible, after all) and so they can't really hold up their argument because of a wonderful thing known as "separation of church and state".

[dubGucKcolo]

My opinions on the death penalty are often mixed. The legal killing of a human being, to me, sounds cruel, but the death penalty is seldom enforced in New York State. Murders have actually gone down for years as a result, while in states like Texas and Louisiana that "liberally" enforce the death penalty the murder rates are among the nation's highest.

However, the death penalty has been successfully used in this state as a bargaining tool to make accused criminals plead guilty and/or gather information on other cases that has resulted in the capture of other criminals or solving other crimes.

In my opinion, a hefty prison sentence with no possibility of parole is worse, and at the same time more humane, than a death sentence. Plenty of criminals see the death penalty as a way out, to end the insufferable monotony of prison. A prison sentence leaves the convict with the fact that (s)he is never getting out, save for — in the best of possibilities in this scenario — suicide, which is cowardly. That, to me, is more just and more satisfactory than a death sentence.

[JaK_MarkoV_Pi]

Who Got The Death Penalty

[ultimda horaf]

C'mon guys!!!

Post some opinions up here rather than NYT articles!!!!

It will save me the time in reading all of them here at work... :O

[Battwenue]

January 2, 2005

A Legal Quest Against the Death Penalty

By BENJAMIN WEISER


Judge Jed S. Rakoff wondered whether the death penalty violated due process because prisoners obviously could not pursue claims of innocence if they were dead.

At night in his chambers, the federal judge would sign on to the Internet. He would pore over the details of criminal cases from around the country that had resulted in death sentences, and in which serious questions remained about the guilt of the condemned. Then he began to keep count - 10, then 20, then more than 30.

During the day, he assigned his law clerks to further research the cases, track down opinions and records, and pull together any information leading to suspicions that those sentenced to death might be innocent.

Over the days and nights of 2001 and 2002, Judge Jed S. Rakoff of Federal District Court in Manhattan was engaged in what amounted to a bit of intensely personal, somewhat stealthy jurisprudence - seeking to determine the constitutionality of the death penalty on new grounds.

While Judge Rakoff was overseeing one of the first federal death penalty cases to come before a judge in Manhattan in years, no one, including the lawyers for the two drug dealers facing trial before him, had made the novel legal claim that he was quietly exploring. Aware of the growing number of wrongly convicted inmates who were being exonerated through DNA testing, the judge wondered whether the death penalty violated due process because such prisoners obviously could not pursue claims of innocence if they were dead.

In an opinion in April 2002, Judge Rakoff sought to take a first step toward ending the death penalty.

"We now know, in a way almost unthinkable even a decade ago," he wrote, "that our system of criminal justice, for all its protections, is sufficiently fallible."

The decision gave brief if unexpected joy to the two defendants. It drew a sharp attack from prosecutors, who called it erroneous and over-reaching; it set off debate - including scathing editorials - about judicial activism run amok; and, perhaps not surprisingly, it won some praise from defense lawyers specializing in capital cases, who kicked themselves a little for not having made such an argument before.

"I gave a speech to numerous death penalty lawyers from around the country and said, 'Why are we asleep at the wheel?' " recalled Kevin McNally, a lawyer in the case before Judge Rakoff.

The mix of joy and outrage, though, did not last. A federal appeals court overturned the ruling, although, as it turned out, the drug dealers on trial before Judge Rakoff were ultimately sentenced by a jury to life in prison without parole.

Judge Rakoff recently agreed to talk about the 2002 decision and the surprise, the upset and the animated legal conversation it generated. In more than six hours of interviews, he offered a relatively rare and candid look at the private thinking of a federal judge taking on one of the most prominent and divisive legal issues of the day.

And among the things Judge Rakoff disclosed was that he himself had suffered the kind of devastating personal loss that many victims often accuse judges in death penalty cases of being insensitive to: the grisly murder of his older brother.

A Random Assignment

Judge Rakoff, 61, was randomly assigned the death penalty case in 2000. By then, there had been no been no federal death penalty trial in Manhattan in nearly half a century. But with new death penalty laws enacted in the late 1980's and mid-1990's, it was only a matter of time before one reached trial.

The case stemmed from racketeering and narcotics charges filed in July 2000 against a group of people in the Bronx, including charges that four of them were involved in the murder of Edwin Santiago, a man they correctly suspected of being a police informer. Other defendants later pleaded guilty, but two - Alan Quiñones and Diego Rodriguez - were tried in Mr. Santiago's murder. The evidence showed that they tied him up, taunted and beat him, and suffocated him with duct tape.

Judge Rakoff, who joined the federal bench in 1996 after his appointment by President Bill Clinton, had seen his own views evolve after a career as a federal prosecutor and later as a defense lawyer in cases of white-collar crime.

"I've never thought that the death penalty was one of those issues that was open and shut for either side," he said.

He had concluded that a state legislature or Congress should have the right to decide if the punishment was acceptable. His was a "utilitarian kind of approach," he said, "having nothing to do with retribution or anything like that." His view, he said, was, "I'll do whatever the law tells me to do."

But in recent years, he became troubled by the implications of the increasing number of exonerations of those sentenced to death, many of them through DNA evidence.

By summer 2001, even before the lawyers in his case filed legal papers challenging the death penalty, Judge Rakoff had begun his own basic research.

He focused on a controversial 1993 decision by the United States Supreme Court holding that Leonel Herrera, a Texas death-row inmate who had exhausted his appeals in a murder case, was not entitled to a new federal hearing based on a belated claim that he was "actually innocent."

Chief Justice William H. Rehnquist, in the court's majority opinion, made it clear that Mr. Herrera did not appear to be innocent. The opinion left open the possibility that "a truly persuasive demonstration of 'actual innocence' " would render an execution unconstitutional, but it made the point for the sake of argument, without conclusively deciding it.

The opinion also said that such inmates were not without recourse, as they could always seek executive clemency.

In an angry dissent, Justice Harry A. Blackmun charged that the majority was virtually endorsing the death penalty for innocent people. "The execution of a person who can show that he is innocent comes perilously close to simple murder," he wrote.

Beyond the Hypothetical

But as Judge Rakoff perused the writings, he noted that two justices in the majority, Sandra Day O'Connor and Anthony M. Kennedy, had said in a separate opinion that they agreed with "the fundamental legal principle that executing the innocent is inconsistent with the Constitution."

Counting them and the three dissenters, Judge Rakoff said, he realized that there were five justices who were prepared to rule that executing the innocent was unconstitutional.

With that in mind, he set out to investigate the assertion that clemency was an adequate safety valve. He had a summer intern study the history of clemencies, which showed, he said, that their use had steadily declined, and that in murder cases, they were particularly rare.

In October 2001, the judge raised his concerns in court. Given the number of DNA exonerations in cases of wrongful convictions, he asked the lawyers whether a penalty could be constitutional if it "precludes forever" rectifying such a wrong for an innocent inmate on death row.

It was different, he said, four or five years earlier, when such mistakes seemed like "a fairly remote hypothetical."

"Now it would appear that it's neither a hypothetical nor so remote," he said.

In following months, defense lawyers filed papers echoing the judge's concerns and also challenging the death penalty on other constitutional grounds.

The judge, meanwhile, pursued his research. He wanted to determine as precisely as possible how many death row prisoners had been found to be "factually innocent," as he put it in the interviews. If it were just 1 out of 100, he said, he would be less troubled.

"You can't design a system that's perfect," he said, "and due process is, by definition, what is reasonably due, not what is perfect."

He reviewed a list of exoneration cases on the Web site of the Death Penalty Information Center, a research group that says it is critical of how the death penalty is carried out. His law clerks, too, went to work. He ultimately came up with 32 cases of exonerated prisoners who, he concluded, were "factually innocent" - 12 were cleared through DNA testing and 20 through other means.

Such exonerations exposed "something pretty upsetting, if you think about its broader ramifications," the judge said in court in March 2002. "It is that our legal system is not as good in ascertaining the truth as we thought it was."

"I appreciate the fact that this issue is somewhat novel," he conceded.

In April, he took the unusual step of releasing a preliminary opinion that found the death penalty unconstitutional, but invited prosecutors to make further arguments before he rendered a final decision. If the government sanctioned executions, he wrote, knowing that the probable result would be "the state-sponsored death of a meaningful number of innocent people," did that not deprive those people of the due process the Constitution promised them?

Prosecutors responded in a detailed brief, and the judge wrestled with their arguments but ultimately rejected them, he said. In July, he issued a final decision that the penalty was unconstitutional.

The ruling spurred heated debate, including strong criticism, like an editorial in The Wall Street Journal titled "Run for Office, Judge."

The short-lived opinion would later be overturned by the appeals court, putting the capital case against Mr. Quiñones and Mr. Rodriguez back on track.

The Personal Angle

Throughout the legal debate, Judge Rakoff maintained a silence about his own family tragedy, but that ended one day in June 2002 as he prepared to sentence a co-defendant of the two men, Janet Soto, to 20 years in prison. She had pleaded guilty to conspiracy.

In court, the prosecutor, David B. Anders, introduced Minerva Rodriguez, the victim's mother, who made an angry, almost scathing, attack on Ms. Soto. "You have no idea the pain and agony you have caused me," the mother began. "You took away my firstborn son."

After her emotional statement, Judge Rakoff, obviously moved, offered a surprising response.

"Let me say," he began, "that I understand more fully than you might realize the pain you feel."

Then, he revealed something he had always treated as a private matter, not liking to talk about it.

"Twenty years ago," he told the victim's mother, "my older brother was murdered in cold blood."

In 1985, his brother, Jan, then 44, had been killed in the Philippines - beaten to death with a piece of metal and an ice pick.

The judge said in the recent interviews that he still felt the loss deeply; that the anguish never left. "It's an unhealable wound," he said.

His brother, a graduate of the University of Chicago, was a brilliant teacher and an educational innovator who had started a school in Vermont, the judge said.

It took almost a year to make an arrest. A signed confession was lost. The murderer wound up serving a short prison term, the judge says, which convinced him that the attacker had benefited from a corrupt judicial process in Manila.

Judge Rakoff said that he never lost the sense of vulnerability that any victim feels, like the mother who had lashed out in the courtroom.

"I felt justice was not done in the case of my brother," he said, "and clearly this woman lived in fear that justice was not being done in the case of her son. I understood that completely."

He said that he did not think his brother's attacker should have been executed, but that he would have been satisfied with life imprisonment.

"The victim wants to have some reassurance that there is cosmic justice, so to speak, that things like this are recompensed," he said.

During the jury selection for the death penalty trial last June, Judge Rakoff appeared torn - questioning, even criticizing, the process while making clear that he would follow the law.

That became evident during his inquiry of one prospective juror. The juror said that although she had once been pro-death penalty, believing it was a deterrent, she had since changed her views. One factor, she explained, had been her work in prison ministries, where she had heard eloquent testimonies from inmates who had "done very bad things."

"I know too many converted prisoners," she said, adding, "I don't want to be in a place of God."

Under the law, prospective jurors who take what appears to be an absolutist position against or for capital punishment are not supposed to sit on a jury.

But after excusing the woman, Judge Rakoff told the lawyers, "I think the Supreme Court has got this whole process completely wrong." He called the woman thoughtful and conscientious, and said that in any other criminal case, she and others like her - who could favor the death penalty - were the kind of people who should be on a jury. "They come together, they reason together, they often change their mind or modify their views," he said. "They take very seriously, in my experience, the court's instructions, put aside their views and decide a case on the law."

It was bizarre, almost misguided, that in a death penalty case, such people had to be disqualified, he suggested. "In a matter as serious as this," he said, "I just think that it is a filthy business."

But later that day, when defense lawyers questioned the process on the ground that a disproportionate number of people who said they were opposed to the death penalty were being disqualified, skewing the jury pool, Judge Rakoff sided with the prosecution.

"I made no bones about the fact that I think the entire process is flawed," he said. "But it's the law of the land," he added, "and I'm following it as best I can."

Ultimately, the men who appeared before Judge Rakoff would be spared death by the jury, and the judge's unusual legal journey was, for the moment at least, completed.

Looking back today, he said he accepted that he was bound by the appellate ruling that rejected his attempt to throw out the death penalty.

"I am, as the Supreme Court usually refers to all other courts, a judge on an 'inferior court,' " he said.

But his doubts remain as strong as ever. "I continue to think that the process is deeply flawed," he said. "It posits a very high likelihood that no innocent person is convicted, which I no longer believe to be true."

Copyright 2005 The New York Times Company

[PriniMai]

December 16, 2004

Morgenthau and Others Speak Out Against Death Penalty

By MARC SANTORA

The battle over whether New York should reinstate the death penalty went before the public yesterday, as witnesses at a state legislative hearing delivered a blistering indictment of capital punishment.

The fierce opposition to restoring the death penalty was a sharp turnabout from 10 years ago, when a political outcry over high crime and a new governor, George E. Pataki, who had made the issue a central theme of his campaign, helped usher capital punishment into law.

But yesterday, at an emotional and jam-packed Assembly committee hearing, a range of speakers, from District Attorney Robert M. Morgenthau of Manhattan to legal experts and even to families of murder victims, tried to persuade lawmakers not to restore the death penalty, which was effectively struck down by the state's highest court in June because of technical flaws.

In opposing the death penalty, Mr. Morgenthau cited F.B.I. statistics showing that states with the death penalty have homicide rates that are 44 percent higher then those without it. And he also cited his own philosophical objections to the law, quoting George Bernard Shaw. "It is the deed that teaches, not the name we give it."

"The death penalty exacts a terrible price in dollars, lives and human decency," Mr. Morgenthau said. "Rather than tamping down the flames of violence, it fuels them."

Aides to Mr. Pataki have described the hearings as "obstructionist," calling them a stalling tactic to prevent restoration of the death penalty. During a year-end news conference with reporters yesterday, the governor called the Legislature's failure to reimpose the death sentence one of the year's biggest pieces of unfinished business. "I believe the death penalty is a part of a balanced and fair approach to criminal justice, and we were unable to get the court decision fixed so that the death penalty continues to be in place," he said.

Despite pressure from Mr. Pataki, it seemed unlikely that action would be taken anytime soon. Several more public hearings are planned, and opponents of the death penalty hoped to use them to convince Democratic lawmakers that the public mood is different from a decade ago.

Sheldon Silver, the speaker of the Assembly, supported the death penalty then and has said he still supports it. But opposition to the death penalty among his Democratic colleagues in the Assembly is so strong that he decided to hold hearings on it.

Assemblyman Joseph R. Lentol, a Democrat from Brooklyn who led yesterday's hearing, said Democrats were committed to bringing the matter to a conclusion, one way or the other, in the next session. "We may have a blood bath in our conference over the issue, but we will make a decision," he said.

The hearings were as much about listening to the experts as gauging public opinion, he said. Mr. Lentol voted to reinstate the death penalty in 1995, but said he was now reassessing his position. "I think the landscape has certainly changed," he said. He observed that roughly half of the Democrats in the Assembly were not in Albany in 1995.

Still, the state's top Democrats, including Senators Hillary Rodham Clinton and Charles E. Schumer, remain in favor of the death penalty. Attorney General Eliot Spitzer, who has announced his intention to run for governor in 2006, also said through a spokesman that he remains committed to the death penalty, but he would not comment specifically on New York's law.

At yesterday's hearing hundreds of people crowded into the meeting hall of the Association of the Bar of the City of New York. The tone of most of the speakers was against the death penalty. Mr. Lentol said an effort would be made to seek greater balance in future hearings.

Opponents of the death penalty supported Mr. Morgenthau's testimony, saying it carried considerable weight given that he has served as Manhattan's top prosecutor since 1975. Mr. Morgenthau has not sought the death penalty in any case he has tried since it was reinstated, and his testimony was his most forceful public appeal on the subject since the court's ruling in June.

He was unequivocal in stating what the Assembly should do now. "I urge all of our lawmakers, in the strongest possible terms, not to reinstate the death penalty in New York," he said.

Later in the day, after hours of testimony by experts and family members of murder victims, Andrew M. Cuomo said that some 300 disparate groups had joined together to voice their opposition to the death penalty.

Mr. Pataki used the death penalty as a campaign issue against Mr. Cuomo's father, Gov. Mario M. Cuomo, a passionate opponent of capital punishment. Mr. Pataki won that 1994 race and, with little debate and no public hearings, the death penalty law was passed with support from the state's top Democrats.

The younger Mr. Cuomo, who has said he is considering running for attorney general, said he believed that the mood of the public was different now, in part because of falling crime rates. He also said he believed it is possible to win statewide office and oppose the death penalty. But he admitted that it is hard to know where the public stands because attitudes can change quickly and the debate can boil down to the politics of the moment, particularly if crime is in the public's consciousness.

An added element in the current debate is that New York now has mandatory life sentences without the possibility of parole, something that did not exist before 1995. In one of the few arguments in favor of the death penalty, Robert Blecker, a lawyer and professor at New York Law School, took certain members to task for supporting that harsh penalty, but not execution. "Search your own souls, you advocates of life without parole," he said.

Michael Cooper contributed reporting for this article.

Copyright 2004 The New York Times Company

[BPitt]

June 25, 2004

A 4-3 Ruling Effectively Suspends New York State Death Penalty

By WILLIAM GLABERSON

New York State's highest court ruled yesterday that a central provision of the state's capital punishment law violated the State Constitution. Lawyers said the ruling would probably spare the lives of the four men now on death row and effectively suspend the death penalty in New York.

The 4-to-3 ruling from the State Court of Appeals in Albany went well beyond the particulars of a single case, giving opponents of the law an important victory. Besides the four death-row inmates, lawyers said, it could spare the lives of nine defendants fighting capital cases and more than 30 others whose murder cases are in early stages. Because the case was decided on state constitutional grounds, it is also expected to provide a broad new legal foundation for untold future challenges to the state's death penalty.

The ruling left the capital punishment law itself intact, providing that the Legislature repairs the provision that the court said was flawed. But the court's majority said, "Under the present statute, the death penalty may not be imposed."

No one has been executed under the law, which was passed in 1995 with the fervent support of Gov. George E. Pataki. Some juries have resisted imposing capital punishment and some district attorneys have declined to seek it at trial. The last execution in New York, under a previous death penalty law, was in 1963.

The court's majority said the Legislature improperly required judges to tell jurors in capital cases that if they deadlocked and failed to reach a verdict during the penalty phase of a trial, the judge would impose a sentence that would leave the defendant eligible for parole after 20 to 25 years. The decision said that instruction had the effect of coercing jurors to vote for execution, because they might fear that a vote against it would lead to the eventual release of people charged with extraordinarily violent or otherwise shocking murders.

"The deadlock instruction," the majority said, "gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 years will join jurors favoring death in order to avoid the deadlock sentence."

The majority decision, by Judge George Bundy Smith, said the deadlock provision violated the State Constitution's guarantee of due process of law. Lawyers said yesterday's ruling left little ground for review by any federal court. Including yesterday's decision, the Court of Appeals has overturned a death sentence four times since the law was enacted.

The governor and legislative leaders said yesterday that they would move quickly to repair the law. The leaders of the State Senate and Assembly have both said they favor the death penalty. But legislative politics and the volatility of the capital punishment issue left it unclear how quickly the penalty might be restored.

Some prosecutors said yesterday that they were working on amendments to the law that could quickly revive the death penalty. Several of them said publicly that they believed that the remaining death-row inmates might be able to be resentenced to death under a new law. But several of them conceded that the courts might not approve such death sentences.

The dissent, by three judges all appointed by Governor Pataki, said the decision reflected an effort by the majority to stall the application of the death penalty in the state. "Today's decision, in our view," the dissent said, "elevates judicial distaste for the death penalty over the legislative will."

The ruling affirmed the conviction of Stephen LaValle, a former Long Island roofer who raped and killed a Suffolk County schoolteacher, Cynthia Quinn, in 1997, stabbing her 73 times. But the court sent the case back for sentencing of Mr. LaValle, now 37. The court said a trial judge was to sentence him to a life term, perhaps one that included the possibility of parole.

Critics of capital punishment maintained even during legislative debates about the law in 1995 that the deadlock provision, which the Court of Appeals said was unique among the nation's capital punishment laws, coerced jurors to vote for death, but some critics say such legal arguments gained little traction in a Legislature convinced that the public strongly favored capital punishment.

Some prosecutors say the deadlock provision was intended to encourage jurors to make the difficult choice between life without parole and death that is presented to them in capital cases. These prosecutors say the provision has helped some death penalty juries reach a decision by suggesting that a defendant may someday go free if they do not reach a verdict.

But in a statement yesterday, the Suffolk County district attorney, Thomas Spota, whose office prosecuted Mr. LaValle's case, said juries needed to be able to be sure "that in the event of a deadlock, the defendant whom they found guilty of first-degree murder would be sentenced to life in prison without parole." He added that he believed that such a sentence would be rational "in these specific circumstances."

The decision was a major victory for the New York Capital Defender's Office, a state-financed legal office that handled the appeals of Mr. LaValle and the three other men whose death sentences have been overturned by the Court of Appeals since the law went into effect. Death penalty supporters have said the capital defenders are working to get what amounts to a moratorium on the death penalty by deluging the court with one technical legal argument after another.

Mr. Pataki yesterday called the ruling disappointing, while Joseph L. Bruno, the Republican Senate majority leader, called it irresponsible, adding that it "could ultimately jeopardize the lives of New Yorkers by placing dangerous, violent criminals back on the streets."

Some prosecutors around the state criticized the decision, saying the judges appeared to be searching for reasons to avoid approving any death sentence. "From the perspective of a prosecutor, there's tremendous frustration right now," said Mike Green, the Monroe County district attorney. "In case after case, it seems they're looking for a way to set the death sentences aside.'

But the chief Capital Defender, Kevin M. Doyle, called the decision a victory for common sense. Mr. Doyle, acknowledging that some critics of the court had said its prior rulings overturning death sentences were made on technical grounds, argued, "Nobody can claim the provision that was found unconstitutional was anything but dangerous and unfair."

Some trial judges have held that the deadlock provision is unconstitutional and have refused to tell juries in advance that in a deadlock, the law requires judges to impose sentences that may permit release on parole. But the majority in the Court of Appeals ruling said the failure to give that jury instruction did not fix the problem, because jurors should not be left to speculate about the possibility of a killer going free someday on parole.

The dissent, written by Governor Pataki's most recent appointee to the court, Judge Robert S. Smith, called the ruling "an astonishing holding" that improperly supplanted the role of the Legislature. The other dissenting judges were Victoria A. Graffeo and Susan Phillips Read.

The dissent said the majority had invented a new constitutional right ensuring that a jury in a capital case would be told in advance that a deadlock would mean a sentence of life in prison without parole.

"The existence of such a right finds no support in precedent, and none in logic except on the premise that death penalty defendants are constitutionally entitled to every procedural advantage the human mind can devise," the dissent said.

Judge George Bundy Smith and two of the other judges in the majority, Chief Judge Judith S. Kaye and Judge Carmen Beauchamp Ciparick, were appointed by Governor Pataki's Democratic predecessor, Mario M. Cuomo.

The only Pataki appointee in the majority, Albert M. Rosenblatt, a former Dutchess County district attorney, is viewed by some lawyers as ambivalent about capital punishment.

Some prosecutors said yesterday that they were still studying the decision. The Queens district attorney, Richard A. Brown, said he was "not prepared to draw any conclusions" as to whether the death sentence obtained by his prosecutors would stand for John B. Taylor, who was convicted of murder in a massacre at a Wendy's restaurant in Flushing in 2000.

The two other men on death row are Robert Shulman, who bludgeoned and dismembered three prostitutes on Long Island in 1994 and 1995, and Nicholson McCoy, who sodomized and killed a female co-worker at a Suffolk grocery store in 1998.

Michael A. Arcuri, the president of the New York State District Attorneys Association, said his members had concluded that the legal problem identified by the court could be repaired by the Legislature.

But some legal experts said it seemed clear that yesterday's decision meant that capital punishment in New York was essentially back to Square 1. "The problem in this case," said James S. Liebman, a Columbia University law professor, "exists in every single death penalty case in the state, and, in effect, there is no viable or valid death sentence in New York until they get it straightened out."

Some death penalty supporters and prosecutors said they were more concerned about the court's general recognition of due process rights for capital defendants under the State Constitution than about the specific decision on the deadlock provision.

Several said that ruling would open new challenges to the capital punishment law. "We don't know what the full scope of this new constitutional right is," said Mr. Green, the Monroe County district attorney, "and we won't know for years."


Legislature Is Given Task of Correcting Law's Flaw

By AL BAKER

ALBANY, June 24 - In finding the state's death penalty law unconstitutional, New York's top court handed the task of correcting it back to the State Legislature - the same body that failed this year to pass a budget and many important pieces of legislation, or to even address the same court's order to come up with a plan to fix New York City's schools.

Gov. George E. Pataki and the state's two top legislative leaders pledged on Thursday to correct the problems in the death penalty law, specifically the elements that the Court of Appeals found unconstitutional.

It was Mr. Pataki's call for the death penalty that defined his first campaign for governor, in which he defeated Mario M. Cuomo, who opposed capital punishment. Mr. Pataki then went on to push through the death penalty legislation that unraveled in the courts on Thursday.

But while the governor and the leaders of the Legislature sought to tackle the issue, questions swirled about when, or whether, Albany's leaders would rewrite the law to satisfy the court. The Legislature, which broke for the summer this week, had been so consumed with the Court of Appeals ruling on improving New York City schools that all other major business in the session ground to a halt.

State Senator Dale M. Volker, a Republican from western New York who had been the leading sponsor of death penalty legislation for years before it was passed in 1995, said he was not sure rewriting the law would matter, since, in his view, the state's top judges would never permit an execution.

"This decision, in my humble opinion, is the death knell of the death penalty for the time being," Mr. Volker said. "This is a banner day for criminals, a banner day for murderers. My opinion is that some people may die because of this decision because, sooner or later, the street is going to realize that there is not going to be any executions."

In its 4-to-3 decision, the court ruled that the instructions judges are told to give to juries in capital murder cases violate the State Constitution; until the statute is fixed, juries cannot impose the death penalty. Prior to Thursday, juries could sentence convicted murderers to either capital punishment or life in prison without parole. But judges had to tell them that in a deadlock, the defendant would be given 20 to 25 years in prison with a chance for parole.

That was coercive, the court ruled, because jurors who preferred to dole out a sentence of life in prison without parole might choose death rather than risk a deadlock that would give the murderer a chance at freedom.

In the majority opinion, Judge George Bundy Smith wrote that the court could not "craft a new instruction because to do so would usurp legislative prerogative." That job was for lawmakers in Albany, the court said.

But as Albany absorbed the decision, it seemed entirely possible that an issue all sides agreed upon would become linked to a larger political battle, perhaps over the state budget.

For his part, Mr. Pataki vowed to continue pushing for the sorts of changes that have been made to the criminal justice system in his nearly 10 years in office, which he said had resulted in steep drops in crime, despite no one having been put to death since the law was enacted.

"It's a disappointing decision," Mr. Pataki said at an appearance on Long Island, stressing that his administration was still reviewing it.

In a written statement, Joseph L. Bruno, the Republican majority leader in the State Senate, was more critical of the court. "The state's death penalty is constitutional and the decision against it is irresponsible," Mr. Bruno said. Nonetheless, he said he was now working with the governor to see what kind of fix could be made.

The Assembly speaker, Sheldon Silver, a Democrat who has supported capital punishment, said he was certain he and his allies would "take appropriate action to address the issue."

The governor and Mr. Volker have sought three times to pass legislation to correct the flaw in the law, although not this year. Their proposals would have imposed a sentence of life in prison without parole in cases of deadlocked juries, but those bills died on the vine. In its decision, the court noted that lawmakers had been aware of the problems with the deadlock instructions, citing the concerns of former Senator Richard A. Dollinger, a Rochester Democrat, who, in a 1995 floor debate, predicted the problem exactly.

Copyright 2004 The New York Times Company

[himecthekWiff]

December 23, 2004

METRO MATTERS

Speaker Hints Death Penalty May Be Passé

By JOYCE PURNICK

ONE of the state's most powerful political figures, Assembly Speaker Sheldon Silver, said yesterday that after a legislative lifetime of supporting capital punishment, he was not so sure the state needed a death penalty law anymore, given its record since its reinstatement in New York nearly 10 years ago.

"Funny thing, I've never objected to the death penalty," the speaker said in an interview, shortly after returning from a trip to Israel.

"But really, someone like me looks at it and says: 'Hey, it's not enforced anyway. We've spent millions of dollars on appeals, and after 10 years there hasn't been an execution in this state.' "

The death penalty has been in play in New York since June, when the state's highest court declared it unconstitutional and returned the issue to the Legislature. After the court decision, Mr. Silver promised that the Assembly "would take appropriate action" and cautioned against haste. He has never said he might be reconsidering his position.

Maybe he really isn't. The speaker, a Democrat from the old school, is nothing if not inscrutable. But merely raising a question is yet another indication that capital punishment is not the super-hot issue it was when crime dominated the headlines, both legislative chambers wanted to reinstate the death penalty and his support for it helped George E. Pataki defeat Mario M. Cuomo, a foe of capital punishment.

Today, with crime down, a nationwide debate about the effectiveness of the death penalty and the fairness of its application, and instances of DNA evidence clearing inmates, the climate has clearly moderated.

Mr. Silver said that he was not predicting how the Assembly would vote. Or whether it would vote at all. It can do as the Republican-led Senate has, revising the law to address the court's concerns. Or it can do nothing.

That would leave the law as is - without the death penalty, but with life without parole, a part of the 1995 law that withstood court scrutiny.

Asked if he would contemplate maintaining the status quo, Mr. Silver said it was possible: "My question is, beyond an issue of conscience, is life without parole enough? It may very well be for a lot of people who think the death penalty is fine but see that it doesn't happen anyway. It's a matter of practicality, not conscience."

Supporters of the death penalty argue that life without parole is an unjust solution because it lets murderers read, exercise, study - in other words, live out their lives in relative comfort. True, Mr. Silver said, "but the reality is, that's what happens even to people sentenced to death."

The speaker's motives are always hard to read. While he does not directly twist arms on an issue of conscience like the death penalty, he does control its fate by determining whether the matter is brought to a vote on the floor.

Lawmakers on both sides predict that capital punishment would prevail in a floor vote.

But a floor vote would be risky for the speaker, whose leadership has been weakened lately by internal dissension and calls for reform.

A sizable number of Assembly Democrats from New York City, many of them black and Hispanic, strongly oppose the death penalty. If Mr. Silver lets the issue go to a vote, he will anger the city contingent.

If he doesn't, he will annoy Democrats from conservative areas. But their numbers are smaller, and they can tell constituents that the state has life without parole, an option New York did not have before 1995.

IT is possible, too, that the speaker is using his power to horse-trade with the governor over education aid and other issues ever pending in Albany.

Or (last try) Mr. Silver might mean what he says - that in his view, the death penalty law is not working effectively. Since September 1995, prosecutors in New York have sought the death penalty against 57 defendants in the state and juries sentenced only seven of those to die. Of the seven, five sentences were reversed by the Court of Appeals, and two are still on appeal.

Opponents of the death penalty calculate that at least $175 million has been spent on death penalty litigation in the state.

Supporters say that the law saves money because defendants plead guilty to lesser offenses, avoiding the cost of trials.

The numbers have persuaded Mr. Silver that there's a "purely pragmatic" argument against a law he voted to enact.

Pragmatism and the death penalty. Not a coupling anyone in New York would have imagined 10 years ago.

Copyright 2004 The New York Times Company

[patuvammnogoo]

February 11, 2005

Death Penalty Seems Unlikely to Be Revived

By PATRICK D. HEALY

LBANY, Feb. 10 - A solid majority of Democrats in the State Assembly now oppose resurrecting the death penalty, including key leaders who voted for the law in 1995, making it more likely that it will not be revived, according to lawmakers on both sides.

After two months of hearings into the issue, the chairman of the Assembly Codes Committee, Joseph R. Lentol, said on Thursday that he now supported life without parole instead of restoring the death penalty, for which he voted in 1995. The Assembly speaker, Sheldon Silver, said he would not be cowed into having the Assembly vote on restoring the death penalty, despite pressure from Republicans.

Their remarks come as a debate has erupted in the Capitol over whether the measure should reach the Assembly floor. Gov. George E. Pataki and Republican leaders in the Senate want a vote as a last opportunity to restore the death penalty, which was virtually suspended last June by a state court.

The Democrats have delayed action on the issue by taking more than 40 hours of intense, often emotional testimony at the public hearings, which have been decidedly opposed to the death penalty. The hearings are to conclude on Friday, after which pressure from all sides is expected to start increasing on Mr. Silver.

Many of his Assembly allies - particularly liberal, black and Hispanic Democrats who helped save him from a coup in 2000 - strongly prefer the alternative of life without parole and want Mr. Silver to bottle up any death penalty bill and avoid risking a floor vote.

Yet if Republicans do not get a vote in the full Assembly, they may turn the death penalty into the first test - and a potentially embarrassing one - of Mr. Silver's newly avowed commitment to democratizing the Legislature.

In an interview on Thursday, Mr. Silver said that the hearings would be used as a guide to decide whether there would be a floor vote, but that in the end the Democratic caucus would determine if the full Assembly would vote.

Echoing several colleagues, Mr. Silver added that he had growing doubts about the practical need, expense and infallibility of the death penalty, especially since defendants can now be sentenced to life without parole. He also argued that since 1995 - when Mr. Pataki took office on a wave of support for the death penalty that helped to sweep out his predecessor, Mario M. Cuomo - public sentiment appeared to have shifted against capital punishment.

"It clearly seems to be moving in a direction away from the death penalty in the last 10 years, now that you have life without parole gaining more acceptance," said Mr. Silver, who remains a supporter of the death penalty. "Maybe it just shouldn't be," he added, referring to the death penalty.

Significantly, Mr. Lentol, a Brooklyn Democrat, predicted that the three committees sponsoring the public hearings would recommend sticking to life without parole, giving Mr. Silver and the Democratic leaders a chance to sideline the death penalty.

"My guess is that there will never be an Assembly floor vote on this issue - that if we did anything, it would be nothing, and that would kill the death penalty," said Mr. Lentol, whose Codes Committee reviews death penalty bills.

A powerful chairwoman leading the hearings, Helene E. Weinstein of the Judiciary Committee, who has in the past supported the death penalty, indicated in an interview that she, too, was leaning toward a shift on the issue.

"My vote 10 years ago was 10 years ago," said Ms. Weinstein, a Brooklyn Democrat. "There's a lot of new information, important information, about DNA testing, about innocent people being convicted, and so on."

The third leader of the death penalty hearings, Assemblyman Jeffrion L. Aubry of Queens, strongly opposes the death penalty.

Of the 104 Democrats in the 150-member Assembly, between 60 and 70 favor shelving the death penalty, according to lawmakers who have been informally polling members.

But Charles H. Nesbitt, the Republican leader in the Assembly, said he was certain the death penalty would pass in a vote before the full Assembly, with support from virtually all 46 Republicans and more than 30 Democrats. He said he hoped Mr. Silver, in the spirit of reform, would allow a vote. If not, he said, Republicans would probably use procedural tactics to try to force a vote this spring.

"We may find ourselves in a position where it takes some public pressure, as in other times, to bring this up for a vote," Mr. Nesbitt said on Thursday.

Still, he added, "Last year I would have said restoring the death penalty was going to happen, but right now, I don't know."

New York became the 38th state with capital punishment in March 1995, after the Assembly voted 94 to 52 in favor, with 41 Democrats joining 53 Republicans to vote yes. Since then, nearly half those 41 Democrats have left office and 5 others said in interviews they now prefer life without parole. More death penalty opponents have been elected, and the Republican minority has shrunk.

Since 1995, an estimated $175 million or more has been spent on death penalty cases, but there have been no executions. Prosecutors have sought death against at least 55 defendants, and juries have sentenced seven to death. Of those, five sentences were reversed by the Court of Appeals, and two are still on appeal.

Last June, a 4 to 3 majority of the Court of Appeals ruled that a central provision of the law, dealing with jury instructions, was unconstitutional, and it issued a de facto moratorium until defects were corrected.

Mr. Pataki and Senate Republicans are supporting amendments to correct these flaws. There is fear among Assembly leaders that Mr. Pataki, who has called the hearings "obstructionist," could try to whip up interest among voters over the issue.

In the Assembly, in district attorneys' offices, and elsewhere, officials on both sides have raised several concerns: that some prosecutors will seek death when others do not, that racial and ethnic disparities in capital cases raise constitutional questions, and that crime has fallen in New York without any executions.

"A moratorium on the death penalty, or doing nothing to restore it, seems the best way to go, because there's very little evidence the death penalty has helped New York these 10 years," said Assemblyman Ron Canestrari of Albany County, who supported the 1995 law.

"Look at what's happening over in Connecticut; it's a circus over there with all those delays in a death penalty case," added Assemblywoman Sandy Galef of Westchester County, who also voted for the law and now opposes it. "Why do we need that?"

Copyright 2005 The New York Times Company

[Âåðåùàãèí]

The question as to whether a Government should have the right to impose and carry out the Death Penalty is brought into new relief with this story ...

Missouri execution doctor has troubled past: paper

REUTERS / YAHOO
Sun July 30, 2006

A doctor who oversaw dozens of Missouri executions until his questionable practices led a judge to suspend executions in the state, has been sued for malpractice more than 20 times and has a history of making medical mistakes, the St. Louis Post-Dispatch reported on Sunday.

Alan R. Doerhoff, 62, also has been banned from at least two Missouri hospitals and was publicly reprimanded by the state's Board of Healing Arts in 2003 because Doerhoff was trying to conceal malpractice claims from hospitals where he was working, the newspaper reported.

The state Attorney General's Office was aware of the reprimand, but the state Department of Corrections continued to employ Doerhoff to handle lethal injections, the Post-Dispatch reported.

Indeed, the state tried to keep his identity a secret in an appeal earlier this year by inmate Michael A. Taylor, who claimed the heart-stopping drug given in lethal injections can cause excruciating pain if the inmate is not given proper levels of anesthesia first.

Lawyers reviewing execution logs found that the anesthesia Doerhoff had prepared for Taylor's execution before it was stayed in February was only half the amount it should have been, and records of previous executions indicated similar improperly prepared doses.

The doctor then admitted he was dyslexic, sometimes transposing numbers, and last month U.S. District Judge Fernando Gaitan suspended executions until the state hires a board-certified anesthesiologist to ensure that the drugs used in lethal injections were properly prepared.

Copyright © 2006 Reuters Limited.

Copyright © 2006 Yahoo! Inc.

[squeerisott]

Did any of his, um, "Patients" survive his incorrect lethal injections?

Seems ironic that he would be sued for not killing someone properly

(I know, it is for his other practice, which is scary)

[Unrersvar]

February 28, 2005

Switch by Former Supporter Shows Evolution of Death Law

By SAM ROBERTS

elene E. Weinstein owes her Assembly seat, in part, to capital punishment.

In 1978, her father toppled the Assembly speaker, Stanley Steingut, a death penalty opponent, from his Brooklyn district, in an upset that sent shock waves through state politics. Two years later, Ms. Weinstein herself was elected to the seat, and consistently voted in favor of the death penalty.

But in a shift that reflects the changing passions on capital punishment among the public and its elected officials, Ms. Weinstein these days harbors serious doubts about the death penalty. And now, having risen to become chairwoman of the Judiciary Committee, she is poised to doom New York State's on-again-off-again death penalty law.

"It was an evolutionary process," Ms. Weinstein said the other day, explaining her shift. "But clearly the advent of DNA evidence and the dramatic number of individuals who have been exonerated and freed from death row in states around the country was something that was building in my mind."

Such are the paradoxes of politics - of politics as practiced in Brooklyn, anyway - that Ms. Weinstein's father, Murray, not only still supports the death penalty, but now admits that his support for capital punishment began only during the campaign against Mr. Steingut.

"I switched in 1978," he recalled. "Steingut was against it and I needed a point of distinction."

Mr. Weinstein also expressed some doubt about the depth of his daughter's support for capital punishment. "I always thought she was uncomfortable in her position," he said, "but obviously she supported it all along to be consistent."

Ms. Weinstein, who was 25 when she first ran for the Assembly, said she did not precisely recall when she became an advocate of capital punishment. "I assume when I first ran for office," she said. "I'm not sure that I had focused on it before. I felt comfortable voting for the death penalty. That was my position."

Other issues also helped to cost Mr. Steingut his seat, particularly the view among many voters that he had lost touch with his district. But rising violent crime, a number of sensational murders and Gov. Hugh L. Carey's veto of legislation that spring to restore capital punishment all resonated loudly in the primary and general election campaigns for state offices that year. Mr. Steingut allowed the death penalty bill to get to the floor of the Assembly, but voted against it.

Mr. Steingut, who was first elected to the Assembly in 1952, the year Ms. Weinstein was born, was singled out on two levels in 1978. Theodore Silverman, a local city councilman, wanted his wife to be Mr. Steingut's co-district leader but was rebuffed and vowed revenge. Andrew Stein, then the Manhattan borough president, was dismayed that Mr. Steingut had not been legally implicated by his association with figures in a nursing home scandal, so, he explained at the time, "subjectively and politically I made up my mind to destroy him."

Ms. Weinstein was the chosen vehicle to defeat the speaker, but her residency was challenged, a maneuver that inadvertently heightened resentment against Mr. Steingut, who, with his father, had represented the district for more than a half century. She was forced off the ballot, and her father, Murray, a 50-year-old lawyer, replaced her. Less than two weeks later, he upset Mr. Steingut in the Democratic primary. Mr. Weinstein reluctantly relinquished the seat to his daughter two years later.

"She was entitled to it," he recalled. "She really ran for it."

After Ms. Weinstein came to Albany, Gov. Mario M. Cuomo, like Mr. Carey before him, vigorously opposed the death penalty. He was defeated in 1994 by George E. Pataki, a Republican, who 10 years ago next month signed a law reimposing capital punishment for first-degree murder. Last June, the State Court of Appeals ruled that a central provision of the law was unconstitutional, effectively suspending the death penalty in the state.

Governor Pataki proposed a quick fix, and the Republican-controlled Senate concurred last summer. But after holding five joint hearings, members of three committees in the Democratic-run Assembly, including Ms. Weinstein's, doubt whether any death penalty bill can pass constitutional muster or whether, politically, one seems as vital as it did a decade or more ago.

Ms. Weinstein attributes those doubts to several factors: crime has sharply declined; the law now provides for the option of life imprisonment without parole; evidence has mounted that black and Hispanic inmates are disproportionately executed; and the number of death-row inmates who have been exonerated nationwide has given even hardened capital punishment supporters pause.

"I saw the play 'The Exonerated,' " Ms. Weinstein said. "It had tremendous impact on me."

Since the early 1990's, as crime plummeted, proponents of capital punishment have maintained that the death penalty has, at least, been a deterrent.

"I believed when I voted for it that there was a deterrent effect," Ms. Weinstein said. "I am pretty convinced now that there isn't. No one ever thinks he's getting caught, and the likelihood that you're going to get caught, convicted and receive the death penalty is so remote."

Ms. Weinstein recalled testimony at the Assembly hearings, which ended earlier this month, from a district attorney who supported capital punishment in principle but opposed reinstatement of the statute because death penalty cases cost taxpayers too much to prosecute and to defend and because no version could be legally foolproof.

She also recalled testimony from another law enforcement official who said that if he were convicted he would rather be executed than be sentenced to life without parole, and the testimony of a judge who warned that a higher standard of proof than beyond a reasonable doubt must be required. And she said she had heard from witnesses who said the death penalty was more likely to be sought when the victim was white and the defendant was black.

"The chance of unequal justice and the part that racism plays I found very disturbing," Ms. Weinstein said.

Moreover, she added, hiring public defenders and other costs mean that about $170 million has already been spent on a death penalty that has not resulted in a single execution.

"We could have spent more on other criminal justice and social programs," she said.

After reviewing the testimony, Ms. Weinstein said the committee heads would report to the Assembly.

"I think it was impossible for anyone to sit through the testimony and not come away with the conclusion that you cannot draft a death penalty law that does not have the possibility of convicting someone who is innocent," she said. "It seems clear to me that from all of what we've heard the chance of convicting an innocent individual remains a possibility, and there's no way to rectify that. People are seeing that the justice system is not infallible."

Reminded of her position a decade and longer ago, Ms. Weinstein was asked how she could be sure she was right this time.

"I'm not sure there's anything as dramatic or as important as the death penalty in terms of my vote," she replied. "I have certainly looked at legislative proposals I supported or opposed and become convinced there's room for a change of position. Times and evidence have changed. That is the wonderful thing about a mind: You can change when you hear evidence and make an intelligent choice."

Copyright 2005 The New York Times Company

[Qwjyrgij]

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

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Florida Governor Halts the Death Penalty

By ADAM LIPTAK and TERRY AGUAY
December 16, 2006

Gov. Jeb Bush yesterday suspended all executions in Florida, citing a troubled execution on Wednesday and appointing a commission to consider the humanity and constitutionality of lethal injections.

Hours later, a federal judge ruled that the lethal injection system in California violated the constitutional prohibition of cruel and unusual punishment.

“Today has been the most significant day in the history of the death penalty in America in many years,” said Jamie Fellner, director of United States programs for Human Rights Watch. “These developments show that the current lethal-injection protocols pose an unacceptable risk of cruelty.
“The way states have been killing people for the last 30 years has yielded botched execution after botched execution.”

California has the largest death row in the nation, at about 650. The state has executed 13 people since the United States Supreme Court reinstated the death penalty in 1976.

Florida, by contrast, has executed 64 people in the modern era of the death penalty, trailing four states.

The California decision, which followed a four-day evidentiary hearing and a session at the San Quentin prison, was eagerly awaited and probably represents the fullest and most careful consideration yet of whether the way inmates are executed violates the Eight Amendment ban on cruel and unusual punishment.

Judge Jeremy Fogel of Federal District Court in San Jose delivered a mixed verdict, writing, “Defendants’ implementation of lethal injection is broken, but it can be fixed.”

The new commission in Florida, which will include doctors, lawyers, scientists and law enforcement officials, will consider many of the same issues, including whether the state protocol satisfies “humanity, constitutional imperative and common sense,” Mr. Bush said in his order.
Deborah W. Denno, an authority on execution at the Fordham University Law School, said Judge Fogel’s decision was “both bold and safe.”

“Judge Fogel’s decision is the most definitive response so far in concluding that a state’s lethal injection protocol, in its current form, is unconstitutional under the Eighth Amendment,” Professor Denno said.
Even as Judge Fogel issued a withering critique of the way California executes condemned inmates, he invited the state to submit a revised protocol to remedy the shortcomings. Similarly, Mr. Bush suggested that executions in Florida might resume after his panel gives its final report in March.

Judge Fogel found that prison execution teams had been poorly screened and had included people disciplined for smuggling drugs and with post-traumatic stress disorder. Moreover, the team members are poorly trained and supervised, he said.

Record keeping is spotty, the judge found, and the chemicals used are sometimes improperly prepared. The death chamber, he added, is badly lighted and overcrowded.

“Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation,” Judge Fogel wrote. “This is intolerable under the Constitution.”

Judge Fogel also noted concerns about the chemicals that California, Florida and 35 other states use. The protocols vary slightly, but almost all call for a series of three chemicals. The first is a barbiturate to render the inmate unconscious. The second is a paralyzing agent that makes the inmate unable to speak, move or breathe. The third is potassium chloride, which stops the heart.

Both sides in California agreed that it would be unconstitutional to inject a conscious person with either or both of the second two chemicals. The paralyzing agent would leave the inmate conscious while he suffocated, and potassium chloride is extremely painful.

The two sides also agreed that if the first drug was effective, using the others did not violate the constitution.

Judge Fogel suggested a way out. Were inmates executed in the same way that animals were euthanized, solely by an anesthetic, that would, he wrote, “eliminate any constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure that the inmate actually receives a fatal dose of the anesthetic.”

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said the decision was in that sense a welcome one.

“It’s unfortunate that we have another delay,” Mr. Scheidegger said. “But it does appear that there is at least one path to a constitutional procedure.”

Florida started its moratorium two days after Angel N. Diaz’s execution appeared to go awry. Dr. William Hamilton, medical examiner in Alachua County, Fla., said yesterday that the needle with the lethal chemicals that should have gone directly into Mr. Diaz’s veins punctured the veins before entering soft tissue. It took a second dose and 34 minutes for him to die.


http://www.nytimes.com/2006/12/16/us/16death.html

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July 30, 2007

Sidebar

After Flawed Executions, States Resort to Secrecy

By ADAM LIPTAK

A Missouri doctor who had supervised more than 50 executions by lethal injection testified last year that he sometimes gave condemned inmates smaller doses of a sedative than the state’s protocol called for, explaining that he is dyslexic. “So it’s not unusual for me to make mistakes,” said the doctor, who was referred to in court papers as John Doe I.

The St. Louis Post-Dispatch identified him last July as Dr. Alan R. Doerhoff, revealing that he had been a magnet for malpractice suits arising from his day job as a surgeon and that two hospitals had revoked his privileges. In September, a federal judge barred Dr. Doerhoff from participating “in any manner, at any level, in the State of Missouri’s lethal injection process.”

Naturally, state lawmakers took action to address the issue.

A new law, signed this month by Gov. Matt Blunt, makes it unlawful to reveal “the identity of a current or former member of an execution team,” and it allows executioners to sue anyone who names them.

The governor explained that the law “will protect those Missourians who assist in fulfilling the state’s execution process.”

In the wake of several botched executions around the nation, often performed by poorly trained workers, you might think that we would want to know more, not less, about the government employees charged with delivering death on behalf of the state.

But corrections officials say that executioners will face harassment or worse if their identities are revealed, and that it is getting hard to attract medically trained people to administer lethal injections, in part because codes of medical ethics prohibit participation in executions.

The Missouri law addresses that point, too. It bars licensing boards from taking disciplinary actions against doctors or nurses who participate in executions.

The job of executioner has never been a high-status profession, of course, which accounts for the hoods that hangmen wore. But in the old days, as John D. Bessler wrote in a history of executions, killing condemned prisoners “called for no expertise apart from the ability to tie a knot.”

Lethal injections are different. They require executioners to insert catheters and to prepare three chemicals and inject them, in the right dosage and sequence, into intravenous lines. If the first chemical is ineffective as a sedative, the other two are torturous.

Yet a federal judge in California found last year that prison execution teams there had been poorly screened and included people who had been disciplined for smuggling drugs and who had post-traumatic stress disorder.

In a decision a week ago Sunday, a state court judge in Florida, Carven D. Angel, halted the execution of a death row inmate, saying, “We need to have people with competence and experience” to perform executions.

But, according to lethal injection procedures issued by Florida’s corrections department in May, there is only one job requirement to be an executioner there: you must be “a person 18 years or older who is selected by the warden to initiate the flow of lethal chemicals into the inmate.”

Those credentials struck Judge Angel as a little thin.

“I don’t think that any 18-year-old executioner,” the judge said from the bench, “with the pressure of a governor’s warrant behind him to carry out an execution, and with the pressure of the whole world — the press and the whole world — in front of him and looking at him is going to have enough experience and competence to stop an execution when it needs to be stopped.”

The concern is not hypothetical. In December, Florida executioners had to inject Angel N. Diaz, a convicted murderer, with a second dose of lethal chemicals after the first set did not do the trick. It took Mr. Diaz 34 minutes to die, and witnesses said he continued to move, squint and mouth words after the first dose hit.

It would be good to know more about who is performing executions in Florida. But that state’s law, like Missouri’s, forbids the disclosure of “information which identifies an executioner.” Quite a few states have similar laws, and a new Virginia law shielding executioners came into effect this month.

A forceful and persuasive article published in the Fordham Law Review in April argued for “a right to know who is hiding behind the hood.”

Its author, Ellyde Roko, who will start her third year of law school at Fordham in the fall, said in an interview that society’s interest in knowing how the death penalty is administered should outweigh the relatively flimsy interests supporting secrecy. “Not knowing who the executioners are takes away a huge check on the system,” she said.

A 2002 decision of the federal appeals court in San Francisco allowing the press and public to view executions in California supports Ms. Roko’s position.

“Even assuming an execution team member were identified by a witness, the notion of retaliation is pure speculation,” Judge Raymond C. Fisher wrote for a unanimous three-judge panel. “No execution team member has ever been threatened or harmed by an inmate or by anyone outside the prison because of his participation in an execution.”

Indeed, Judge Fisher continued, there are far more likely targets for retaliation, including the warden, the governor and the judges who rejected the condemned prisoner’s appeals. And all of their names are public.

Copyright 2007 The New York Times Company