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Circuit Overturns Vermont Judge on Death Penalty The U.S. Court of Appeals for the Second Circuit yesterday overturned the ruling of a Vermont federal judge who had found the federal death penalty unconstitutional, marking the second time the court has upheld the death penalty in a little more than a year. The unanimous court, in an opinion written by Chief Judge John M. Walker, said that relaxed evidentiary standards in the penalty phase of a death trial do not violate a defendant’s due process rights. Vermont Chief Judge William K. Sessions III found in 2002 that the defendant in this case, Donald Fell, should have the right under the Sixth Amendment to confront witnesses in a penalty phase, as he would during trial. Prosecutors argued that a jury at sentencing could consider any relevant information as long as its probative value was not outweighed by the prospect of prejudice, a relaxed standard with which Judge Sessions found fault. Yesterday, however, in United States v. Fell, 02-1638, the Second Circuit said the Federal Rules of Evidence are not constitutionally mandated and are not applicable in numerous contexts, including ordinary sentencing proceedings. In 2002, the circuit overruled Southern District Judge Jed S. Rakoff, who found the death penalty was unconstitutional because of the likelihood that innocent people might be put to death. The decision will be published Tuesday. � Tom Perrotta New Judicial Screening Panel Meets in Brooklyn The Brooklyn Democratic Party’s reconstituted judicial screening panel was slated to hold its first meeting last night to adopt procedures for the evaluation of candidates. In the shadow of the indictment of two Brooklyn Supreme Court justices � and the guilty plea of one � the party has been under pressure to set up a screening panel independent of its leadership. The party’s leader, Assemblyman Clarence Norman, appointed all members of the previous panel, but under reforms adopted in August, bar associations can appoint 12 of the 18 members, with the remainder appointed by party officials. Mr. Norman retains the power to appoint two members, including the chairman. Martin W. Edelman, the president of the New York State Trial Lawyers’ Association, now holds that slot. He and four other members of the new committee served previously. Three of those, but not Mr. Edelman, were added to the old committee as recently as April. � Daniel Wise Suit Against Empire State Building Is Dismissed The operators of the Empire State Building were under no duty in 1997 to install gun-detection devices and armed guards that might have prevented a deranged man from entering the building’s observation deck and gunning down seven people, one of whom died, the Appellate Division, First Department, ruled yesterday. In the wake of the Sept. 11 terrorist attacks it is commonplace to encounter metal detectors, bag checks and security measures in large public spaces, but that was not the case in 1997, Justice Richard Andrias wrote for a unanimous panel in Gross v. Empire State Building Associates, 2128, which will be published Monday. The ruling dismissed a damage action brought by the shooting victims and reversed a decision by Justice Edward H. Lehner that would have let the case go to trial on the adequacy of the security measures. � Daniel Wise Firm Tapped to Monitor Racing Group A federal judge has appointed New York-based Getnick & Getnick to monitor the New York Racing Association through July 1, 2005. The appointment of the law firm by U.S. District Judge Arthur D. Spatt is part of a settlement stemming from a federal prosecution alleging that some directors and tellers formerly with the association participated in a scheme that enabled its employees to take millions in false tax deductions. The terms of the deferred-prosecution settlement require the association to pay $3 million in fines and costs and to restructure its management. Charges against six individual defendants are still pending. Getnick & Getnick served as one of four monitors to oversee the cleanup of the World Trade Center after the Sept. 11 attacks. � Leigh Jones

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