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In a ruling that gives prosecutors a powerful upper hand in the plea bargaining of capital cases, the New York Court of Appeals Thursday held that a defendant does not have a right to plead guilty to a first-degree murder indictment prior to the time that a death notice is filed. Thursday’s decision in Francois v. Dolan and Grady, No. 46, coupled with the Court’s 1998 ruling in Hynes v. Tomei (92 NY2d 613), where the Court barred plea bargaining once death notice is pending, grants prosecutors virtually total control over the plea bargain process in capital cases. The practical result of the two decisions, Francois and Hynes, is that a defendant indicted on a first-degree murder charge cannot escape the threat of execution by pleading guilty. The practical result for Kendall Francois is that he will face the death penalty unless the Dutchess County, N.Y., District Attorney, in his sole discretion, opts to negotiate a deal for a lesser charge, such as second-degree murder. Francois, a former middle school hall monitor accused of strangling eight prostitutes and hiding their bodies in his Poughkeepsie home, can do nothing to force the issue or thwart the process. Francois extends and clarifies the Court’s holding in Hynes, and resolves a question left unanswered in the earlier case. Under the death penalty statute, only a jury can impose a death sentence. Since a defendant who pleads guilty never faces a jury, he or she would never face the death penalty. In Hynes, the Court struck down the plea bargaining provisions of the statute on federal constitutional grounds. Relying on the U.S. Supreme Court’s 1968 ruling in United States v. Jackson, 390 US 570, the New York State Court held in Hynes that the statute violated the Fifth and Sixth amendments since it barred execution of defendants who plead guilty, leaving only those who “exercise their constitutional rights to maintain innocence and demand a jury trial” exposed to the death penalty. It said, in essence, that the death penalty could not be used to coerce a guilty plea. Hynes, however, did not bar all plea bargaining. Rather, it said that a “defendant may not plead guilty while a notice of intent to seek the death penalty is pending.” The statute gives prosecutors 120 days arraignment on a first-degree murder charge to serve notice of intention to seek the death penalty. The day after Hynes was decided, Francois’ attorney, Randolph F. Treece, formerly of the Capital Defender’s Office, appeared before Dutchess County Judge Thomas J. Dolan with an ex parte motion demanding that his client be allowed to immediately plead guilty to the indictment. Treece’s maneuver, if successful, would have subjected Francois to a life sentence while ensuring that he would be spared the death penalty. Dolan reserved and District Attorney William V. Grady, opposing Treece’s motion, promptly filed the death penalty notice. Later, Dolan refused to accept the guilty plea, interpreting the word “pending,” as used in the Hynes decision, to mean that a guilty plea could not be entered before the 120-day notice period had expired. ‘UNSEEMLY RACE’ The Appellate Division, Second Department, upheld Dolan, in an opinion unanimously affirmed by the Court of Appeals yesterday which rejected Francois’ argument that he has an unqualified right to plead guilty to the indictment, and declined his demand for mandamus relief. To rule otherwise, the Court said, would undermine the statutory authority of the district attorney to decide whether to seek the death penalty. In addition, it would “inevitably result … in an unseemly race to the courthouse between defense and prosecution to see whether a guilty plea or notice of intent to seek the death penalty will be filed first.” In an opinion by Judge Howard A. Levine, the Court held that conflicts between the plea bargaining provisions of the statute and the provision empowering the district attorney discretion to seek the death penalty should be resolved in favor of the latter. “The need for precipitous action to file a death penalty notice before the plea was offered would undeniably preclude the thorough, fully deliberative decision-making on whether to seek the death penalty that the Legislature contemplated, and one would hope a District Attorney would employ, in the exercise of the official’s profound responsibilities conferred under the present death penalty statute,” Levine wrote. Joining the opinion were Chief Judge Judith S. Kaye and Judges Albert M. Rosenblatt, Richard C. Wesley, Carmen Beauchamp Ciparick, George Bundy Smith and Joseph W. Bellacosa. Deputy Capital Defender Barry Fisher of Albany, N.Y., argued for Francois. Dutchess County Assistant District Attorney Bridget Rahilly Steller appeared for the prosecution. First Deputy Capital Defender Mark Harris said he was disappointed that the Court showed little interest in his office’s argument that there is a constitutional right to plea. Grady, the district attorney, said the Court seemingly went beyond the base-level issue in this case — whether mandamus could be compelled — to further clarify its position on guilty pleas in relation to the death penalty. He said the ruling “closed the door on any future attempt by a defendant to enter a plea of guilty during the 120-day period or before the DA files a death notice.” Although the pragmatic impact of the ruling remains to be seen, some observers suggest that it may result in wink-and-a-nod plea bargaining where the prosecutor withdraws the death notice and the defendant, theoretically without inducement, then enters a plea. Also Thursday, the Court denied leave in a case raising precisely the same issue as Francois. In that case, Matter of Schroedel v. LaBuda, Mo. No. 486, the defendant unsuccessfully attempted to force Sullivan County Judge Frank J. LaBuda to accept a first-degree murder plea in connection with fatal stabbing of a woman. The Appellate Division, Third Department, had held that a death penalty candidate cannot evade execution by pleading guilty before a death notice is filed. Thursday, the Court of Appeals denied leave.

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