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During the 18 years in which the New York Legislature routinely passed death penalty legislation and Democratic Govs. Hugh L. Carey and Mario M. Cuomo just as routinely vetoed those bills, the debate over capital punishment was academic, abstract. Everyone knew it was unreal, maybe even surreal, and no one was overly concerned about i-dotting and t-crossing in a bill that was dead on arrival. But when George E. Pataki upset Gov. Cuomo on a pro-death penalty platform, the dynamics shifted instantly and dramatically. And so did the politics, according to those who were closest to the 1995 negotiations. Without exception, participants describe those discussions as the most intense in memory. They say debate sometimes went on around the clock, with painstaking attention to detail. There were arguments over the most important elements, and the most seemingly insignificant commas. “In all the years I have been doing this stuff … I have never been involved in anything as intense as this,” said one key player. “Once it became clear that this was for real, that we were negotiating a law, everybody realized what we were dealing with, and we didn’t want to make mistakes. There was no place for politics. It was incredibly complex and passionate, and different from any other negotiation I’ve been involved with. This was far and away the most intense and probably the most well-informed negotiation we ever did.” Holed up in Room 214 of the Capitol were the top negotiators for the new governor: adviser and Elmira, N.Y., attorney John O’Mara, then counsel Michael C. Finnegan and, playing a critical role especially toward the end, current counsel James M. McGuire. Assembly Speaker Sheldon Silver, D-Manhattan, was represented primarily by his counsel, Frederick J. Jacobs, now of Hodgson Russ in Manhattan, and Daniel P. Conviser. Francis T. “Tim” Collins, now a Court of Claims judge, and Kenneth E. Riddett, counsel to the Senate majority, were there for Senate Majority Leader Joseph L. Bruno, R-Rensselaer County. Kenneth J. Connolly, an aide to the prime state Senate proponent of capital punishment, Sen. Dale M. Volker, R-Erie County, was often involved. Connolly is now deputy commissioner and counsel at the Division of Criminal Justice Services. These, according to major actors, were the insiders taking marching orders from the governor, Senate Majority Leader and Assembly Speaker. “There wasn’t a person in the room who wasn’t impressed with the importance and seriousness of what we were all trying to do, and there were very intense discussions,” recalled McGuire. INFLUENTIAL OUTSIDERS The leadership was also receiving advice from outside the inner circle. One group on the outside was led by James M. Catterson, then the Suffolk County District Attorney and president of the New York State District Attorneys Association. “I believed that, if we were going to get a bill, and it certainly looked like we would, I wanted to opt for a workable one, one that would sustain constitutional muster and survive appeals,” Catterson said. He added that the District Attorneys Association is responsible for eliminating the “cold jury” concept, where a different jury would preside over the penalty phase of a bifurcated capital trial. Catterson also said the prosecutors succeeded in doubling to 120 days the time to file a death notice, and were instrumental in forming the Capital Defender Office and the Prosecutors Training Institute. Westchester County, N.Y., District Attorney Jeanine Pirro, who had chaired the Pataki transition committee, said the prosecutors were especially keen on ensuring that the new law addressed all of the jurisprudence that had developed since New York last executed a convict in 1963. She said the prosecutors played an instrumental role in drafting the bill that was eventually approved. Another outside group included some of the staunchest advocates for the death penalty and some of the most impassioned opponents. Included in that group were former Gov. Malcolm Wilson, former vice presidential candidate and Rep. Geraldine Ferraro, future Attorney General Eliot Spitzer, former Court of Appeals Judges Fritz W. Alexander and Bernard Meyer, former New York University Law School Dean Norman Redlich and former U.S. District Judge Harold R. Tyler. This coalition argued for several provisions that were included in the final bill, including the option of life imprisonment without the possibility of parole, an exemption for the mentally retarded and the establishment of a statewide capital defender. The bill that had been approved annually under Govs. Carey and Cuomo was sponsored by Sen. Volker and Assemblyman Vincent Graber, D-Buffalo, and in many ways failed to take into account recent technology and jurisprudence. When Govs. Carey and Cuomo were in office, those shortcomings were of no significance; while there were always plenty of votes to pass the bill, there were never quite enough to override the inevitable veto. “As far as I was concerned, it was a joke, a charade,” said Scott Christianson, a death penalty historian and author who worked in the Cuomo administration. “There was effort on the part of the Senate to come up with the votes to support capital punishment, but not with sufficient votes to override. This was something that was just held up as a cudgel to use against Gov. Cuomo and make it appear that he was ‘soft on crime.’ It was a gimmick, and it was done every year.” Privately, some lawmakers have admitted voting for a measure they generally opposed on moral and philosophical grounds because to do so was politically expedient; the public favored capital punishment, but there was no real danger that the bill would become law. For a politician, it was a win-win situation. Once, however, it appeared that calculus was in jeopardy. In 1990, Assemblyman Gary Proud, a Rochester Democrat who had always opposed capital punishment, abruptly changed his mind. That resulted in 100 Assembly votes -� the exact margin needed for an override. But that year the Republican Senate was a single vote short. It had passed the death penalty bill 40-20 with one member absent: longtime capital punishment advocate James Donovan, R-Chadwicks. Sen. Donovan, however, was dying of cancer. He declined to return to Albany and cast the final vote of his political career to override Cuomo’s veto and return capital punishment to New York. The death penalty would have to wait until then-Sen. Pataki, with capital punishment as the cornerstone of his campaign against Gov. Cuomo, engineered an upset victory in 1994. At that point, the result was no longer in question. “We knew, the day after the election in 1994, that there was going to be a death penalty,” said Arthur N. Malkin, an attorney and name partner in the law and lobbying firm Malkin & Ross in Albany, N.Y. Malkin, who opposed the death penalty, quickly joined New Yorkers for Fairness in Capital Punishment, the coalition of proponents and opponents who shared a common goal in helping to draft the fairest death statute possible. “We were able to bring the national experts to New York, people who had actually tried cases, law professors who studied it and in-the-trenches lawyers,” Malkin said. “We had access to some of the really great minds, and a willingness to engage in a discussion of what would and wouldn’t be fair. This was not a blood-lust group. It was a group willing to think through a complicated issue.” What emerged, with input from both the insiders and the outsiders, is perhaps the most comprehensive death penalty statute in the nation. Its provision for capital defense is considered a national benchmark and, drafters say, the legislation seeks to address every conceivable challenge. There remain members of the Legislature who are convinced that Assembly Democrats, who were happy to vote for a death penalty bill for political gain but not at all eager for an execution to occur, planted poison pills that they hoped would ultimately undermine the legislation. Then, if the statute was shot down, they could always blame the Court of Appeals. However, those closest to the process deny the legislation was intentionally sabotaged. Regardless, the statute is now in the court of seven judges on Eagle Street, where the first challenge will be heard May 6 in the case of Darrel K. Harris, a former corrections officer who killed three people during a Brooklyn robbery in 1996. The panel of seven Court of Appeals judges that will determine whether Harris lives or dies includes: � Judge Albert M. Rosenblatt, the last judge to impose a death sentence, albeit reluctantly, under the old law; � Chief Judge Judith S. Kaye, whose 1984 opinion before she was chief judge shot down the old law; � Judge Richard C. Wesley, who as a legislator repeatedly voted in favor of capital punishment and once said the death penalty was needed to rid society of “animals” like multiple murder Lemuel Smith, and, � Judge Victoria A. Graffeo, who was a top aide to Assembly Republicans vigorously supporting the Volker-Graber bills over the years and then served as solicitor general when the measure was finally approved with the enthusiastic support of her boss, then-Attorney General Dennis C. Vacco. Court scholar Vincent M. Bonventre, a professor at Albany Law School, said it is difficult to predict how any judge will vote. He said voting patterns would imply that Chief Judge Kaye and Judges George Bundy Smith and Carmen Beauchamp Ciparick “in their hearts probably think the death penalty is inhumane and doesn’t serve any legitimate purpose.” Bonventre said “everything we know about [Judge Graffeo] would suggest that she believes in the death penalty as a policy matter and a legal matter.” The professor reads little into the fact that Judge Rosenblatt sentenced Lemuel Smith to death, as he was required to do when Smith was convicted of killing a prison guard, or that Judge Wesley repeatedly voted for capital punishment when he served in the Assembly. Wesley was not active in the annual death penalty debate in the Assembly and had left the Legislature well before the current bill was drafted. Although Wesley has supported capital punishment as a matter of policy, he has never expressed any public opinion on the viability of the statute now in question. That leaves Judge Howard A. Levine, a former Schenectady district attorney who Professor Bonventre said could well be a swing vote. “It seems to me that with the death penalty, the court is going to be a lot less tolerant of errors that they might otherwise consider harmless,” Bonventre said. “The court has really done a good job of avoiding controversial issues head on. With the death penalty, why address all those philosophical issues if they can decide it on narrow grounds? Not only do I think that is the personality of the court, I also think it is the proper thing for them to do.” Michael Whiteman, former counsel to Govs. Nelson Rockefeller and Wilson and a prominent member of New Yorkers for Fairness in Capital Punishment, agreed with Bonventre that the court will likely be inclined to decide the Harris case as narrowly as possible. “Courts always try as a matter of principle to avoid the hard, the most difficult and the most precedent-setting issues if they can and try to avoid constitutional issues if they can resolve the case on a statutory basis or a standing basis,” said Whiteman, of Whiteman, Osterman & Hanna in Albany. “I think they will do their best to put off the most difficult issues. Will they go through and deal with the whole series of issues on the theory that they are going to recur and they may as well deal with them now? I don’t think that is the personality of this court.”

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