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ALBANY — The judges of New York’s highest court yesterday seemed poised to strike at the unique “deadlock” provision in New York’s capital punishment statute. They spent much of their time during a capital appeal debating not the alleged flaw but the remedy.

The provision requires the judge in a capital case to inform a sentencing jury that failure to reach a unanimous verdict for either death or life without parole will result in a parole-eligible sentence.

If the Court of Appeals does indeed topple the controversial provision, there are several potential scenarios.

First, if the Court declares the provision unconstitutional and unseverable — the result most strongly advocated by the defense and most strongly resisted by the prosecution — New York’s entire death penalty would fall. That solution is the most drastic and one the Court is likely to avoid if possible.

Two much less draconian options were also presented. The Court could find the provision severable and require new sentencing hearings in pending and future capital cases. Or it could alter the law so that a non-unanimous sentencing vote would automatically result in a term of life without parole.

Yesterday, the Court heard People v. LaValle, 71, its fourth death penalty appeal. For the first time, the Court appeared particularly eager to address the deadlock provision issue. The provision was inserted in the 1995 law to solve one problem but may have created another.

Under the law, once a death-noticed defendant is convicted of first-degree murder, the jury reconvenes to consider the appropriate sentence. A unanimous vote is required for either death by lethal injection or life without parole.

The drafters of the law, however, were uncomfortable leaving the jury to speculate on what would occur if it could not unanimously agree on a sentence. So they inserted a provision that requires the judge to advise the jury that a deadlock would result in a sentence of 20 or 25 years to life. In other words, the jury is warned that if it cannot come to unanimous agreement to either execute the defendant or imprison him or her for life, the defendant may some day go free.

Position of Two Judges

Two judges, George Bundy Smith and Carmen Beauchamp Ciparick, have already said in a prior decision ( People v. Cahill) that the deadlock provision is unconstitutional. But the Court as a whole has not addressed the question. That may be about to change in the case of Stephen S. LaValle.

Mr. LaValle was condemned for the Suffolk County rape and murder of a popular teacher and track coach. Evidence showed that Cynthia Quinn was out running early one morning when she encountered Mr. LaValle, who was urinating, and reprimanded him. She was raped and stabbed 73 times, perhaps with a screwdriver.

As required, the trial court delivered the deadlock charge. The jury returned a death sentence after three days of deliberations.

Yesterday, First Deputy Capital Defender Susan H. Salomon told the Court that the provision cannot stand on either state or federal constitutional grounds — and received little argument from the bench on the point. In fact, there seems to be a consensus at the Capitol that the provision is troublesome. Governor George E. Pataki, who was elected in 1994 on a platform to bring back capital punishment, has proposed making life without parole the default sentence.

Still, Assistant Attorney General Luke Martland urged the Court to preserve the entire statute and leave to the Legislature the task of altering the deadlock provision if it sees fit.

Mr. Martland argued that the provision serves a valuable purpose in averting juror speculation, but admitted under questioning from Chief Judge Judith S. Kaye that the deadlock rule pressures jurors to reach a compromise.

The assistant attorney general, however, would not concede that a provision that he admits results in pressure is also coercive and compared it to an “Allen charge.” An Allen charge is administered to struggling jurors and admonishes them to maintain an open mind without compromising their core convictions.

“Where does pressure end and coercion begin?” the chief judge asked.

“I don’t know if you can draw a bright line,” Mr. Martland responded. “I certainly can’t.”

“Isn’t that problematic?” she asked.

“It might be,” he admitted.

If the Court does base its decision on the deadlock provision, it could sidestep the novel issue of whether juries in capital cases are entitled to mitigation evidence, regardless of the defendant’s wishes. No other capital defendant has yet raised that issue and the Court of Appeals has never addressed it. Several other state courts have held that there is no obligation to present mitigating proof.

Here, Mr. LaValle would not permit his attorneys to offer mitigation evidence because he supposedly did not want to bare his family’s embarrassing history, which apparently includes sex abuse, in a public courtroom.

The defense claims the jury was improperly denied evidence it needed to assess whether the defendant deserved to die. The prosecution contends that a defendant has a right to control his or her destiny and the court should not interfere with a convict’s decision to waive mitigation. The judges seemed leery of encroaching on a defendant’s right of self determination.

But the judges appeared equally uneasy with depriving a sentencing jury of vital information and essentially facilitating a defendant’s death wish.

Deputy Capital Defender Daniel R. Williams asked the Court to fashion a rule that would require appointment of independent amici counsel whenever a defendant expressed an intent to forgo mitigation testimony. But both the attorney general and Suffolk County Assistant District Attorney Michael J. Miller said the Court would be wrong to intrude on a defendant’s right to determine his own destiny. Mr. Miller stressed that the Constitution protects individuals from the government, not from themselves.

“You are taking a rational, competent, educated adult and saying your wishes don’t matter,” Mr. Miller said.

Prominent Issues

Two other issues were particularly prominent in yesterday’s day-long arguments: Hynes v. Tomei, 92 NY2d 13 (1998), and Brady v. Maryland, 373 US 83 (1963).

In Hynes, the Court struck the plea provisions in the 1995 law since they allowed a capital defendant to avoid the possibility of a death sentence by giving up the right to a jury trial and pleading guilty.

The Court has clearly held that defendants whose trials were under way either pre- Hynes or when Hynes was pending were tried under an unconstitutional statute. Here, Mr. LaValle’s trial occurred well after Hynes was handed down. However, there was an 18-month pre- Hynes period when Mr. LaValle was under death notice and awaiting trial.

Brady, which entitles the defense to exculpatory evidence in the hands of the prosecution, in some ways dovetails with the mitigation issue since it involves possibly mitigating evidence that never got to the jury.

Here, the Brady issue involves two men who provided statements two years after the murder in which they claimed they had been drinking and using crack cocaine with Mr. LaValle, apparently within hours of the crime.

The prosecution alerted the defense that there were statements and identified the witnesses, but it would not hand over the actual statements. During trial, the prosecution stressed that there was no indication that Mr. LaValle was under the influence of alcohol or drugs.

Chief Judge Kaye appeared particularly concerned with the Brady issue. She steered both the prosecution and defense to that matter at the outset of their presentations. Both sides were prepared to begin their argument with other points.

If the Court finds a Brady violation, it could reverse the conviction and order a new trial without addressing any of the death penalty issues.

Brady is implicated only if the evidence was exculpatory, withheld and material, and in this case there is dispute over each point.

The defense contends that intoxication evidence would have countered the prosecution-fostered impression that Mr. LaValle was simply a predator, and addressed a question repeatedly asked by the deliberating jury: Why did the crime occur?

On the other hand, the prosecution maintains the evidence was immaterial since it had nothing to do with Mr. LaValle’s guilt or innocence.

Mr. Miller, responding to a comment by Judge Victoria A. Graffeo that in a capital case the truth-seeking function is especially significant, acknowledged that the statements at issue here would have been material in the sentencing phase as potential mitigation evidence.

However, he insisted that they were not Brady material, an assertion that led Chief Judge Kaye to respond sharply: “It comes very close, Mr. Miller, doesn’t it?”

Theme of ‘Control’

Mr. Miller returned time and again to one word — “control.” He said Mr. LaValle asserted his control at every stage of the crime and trial — deciding to control the victim, deciding to control the presentation of defense testimony, deciding to forgo mitigation testimony, deciding not to summon the witnesses with whom he may have been partying with the morning of the murder.

But Mr. Williams ridiculed the suggestion that the defense could have called the witnesses itself.

“You cannot expect defense counsel to put a witness on the stand cold,” he said. “It is absolutely suicidal in a capital case to put two witnesses on the witness stand when you don’t know what they are going to say and the prosecution has said they are not helpful to you.”

Capital Defender Christopher Seeds focused primarily on the prosecution’s portrayal of Mrs. Quinn as a stellar human being and on Mr. LaValle as a vile criminal. He argued that the prosecution went too far in demonizing the defendant.

The Court has been deciding capital appeals about two months after oral argument.

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