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In its initial death penalty appeal under the 1995 statute, the New York Court of Appeals on Monday focused immediately, sharply and persistently on the issue that many experts identified as pivotal: Hynes v. Tomei. Within the first 10 minutes of People v. Darrel K. Harris, all seven judges quizzed First Deputy Capital Defender Susan H. Salomon on the impact and implications of a 1998 decision that struck down as unconstitutional the plea-bargaining provisions of the death penalty statute, while leaving the remainder of the law untouched. The judges demanded to know if and how they could reconcile Harris’ pre- Hynes conviction and condemnation without overturning Hynes, and asked about their sentencing options should they find a constitutional flaw or trial error. They promptly returned to a Hynes line of questioning when the prosecution took the podium. In Hynes v. Tomei, 92 NY 613, the court struck down the plea-bargaining provisions of the capital punishment statute because they required pleas while a notice to seek the death penalty was pending, in violation of the U.S. Supreme Court’s 1968 holding in U.S. v. Jackson, 390 U.S. 570. The Supreme Court in Jackson voided death sentences in eight cases, finding that a defendant’s rights were unconstitutionally burdened if they faced the death penalty only if they went to trial, but not if they pleaded. What seemed to concern the Court of Appeals judges was how to apply the Hynes precedent to the circumstances of Harris’ appeal. “Now I had a lot of difficulty with [the concept that an affirmance here and Hynes can co-exist] because I had perceived that the DA was arguing that Hynes v. Tomei must be overruled, and I don’t know if we are in a position to do that,” Judge Albert M. Rosenblatt said. Twice, Judge Rosenblatt asked about the impact on both this case and the statute as a whole if the court were to reverse Harris’ conviction under Hynes. And twice, Judge Rosenblatt warned that his questions were purely hypothetical and should not be viewed as a telegraphic signal. The three murders that resulted in the first test of the state’s 1995 statute were committed on Dec. 7, 1996, a little more than a year after Gov. Pataki fulfilled a campaign promise and restored capital punishment. There was never much question over the basic facts. In an early morning rampage, Harris, a 39-year-old decorated former corrections officer with no criminal record, entered Club Happiness in the Bedford-Stuyvesant section of Brooklyn and killed three people and seriously wounded a fourth. Harris forced his victims to lie face down on the floor. Then he fatally pumped bullets into the heads of Jerome Sims, the manager and Michael Harris (no relation), seriously wounded Eddie Brown and pursued Evelyn Davis, a mother of five, who attempted to flee. After firing at Davis and missing, Harris chased her down and stabbed her to death as she begged for mercy, pleading with her assailant for the sake of her children. Harris admitted taking three lives, betting his own life on a defense of extreme emotional disturbance. The defense claimed that Harris’ uncharacteristic and violent outburst resulted from decades of repressed rage at an abusive and alcoholic mother, substance abuse, post-traumatic stress brought on in part by a 1986 prison riot when he saved a co-worker’s life — and the fact that two days earlier he had been fired from his job as a security officer. In essence, the defense portrayed a man who was emotionally stretched to the breaking point, and broke. The prosecution, however, depicted Harris not as a tragic and fateful figure, but as a vicious predator who callously sought to exterminate witnesses to his attempted robbery at Club Happiness. Apparently, the jury seated before Acting Brooklyn Justice Anne G. Feldman accepted the prosecution’s view of events, since it convicted Harris of capital crimes, and unanimously agreed that death by lethal injection was a more fitting penalty than life without parole. EXTRAORDINARY SESSION The death sentence resulted in an automatic appeal to the Court of Appeals, and Monday’s extraordinary session. A court which rarely tolerates more than 40 minutes of oral argument in any given case devoted the entire day to People v. Harris. For more than four hours, the seven judges engaged in a solemn discussion with six attorneys who seemingly had prepared for the case of their lives. The court had, just days before, warned attorneys to prepare to stay another day in the event additional elucidation was needed. However, at the end of the day the court decided it had heard enough. The appeal began sharply at 10 a.m., when Salomon and appellate specialists Barbara Zolot and Laura S. Kelly of the Capital Defender Office began a multi-front attack, augmenting their voluminous brief with oral argument. The defense seemed to embrace a shotgun strategical approach with an effort to hit any and every potential vulnerability in the conviction and sentence. They challenged the constitutional viability not only of the particular 1995 statute in question, but of capital punishment in general — an obvious if ambitious quest for a ruling that the death penalty is a per se violation of the New York State Constitution. They claimed the statute is irreparably replete with infirmities, and that it allows, and perhaps encourages, prosecutorial judge shopping while establishing a jury selection process that ensures a pro-prosecution panel. They raised racial and geographic disparity questions. They challenged Justice Feldman’s instructions on the affirmative defense of extreme emotional disturbance. The defense lawyers alleged defects in jury selection and jury instructions. They objected to the introduction of inflammatory evidence and the fact that prosecutors enjoy nearly unfettered discretion in determining when to charge a capital offense. They claimed that a death-qualified jury is inherently pro-prosecution. Salomon, who spoke first, had barely uttered the word “Jackson” — as in the U.S. Supreme Court decision U.S. v. Jackson — when Chief Judge Judith S. Kaye launched what turned out to be a volley of questions and comments regarding Hynes v. Tomei. To a large extent, the Hynes discussion centered on pragmatic concerns and considerations. For instance, judges asked what the jury’s options would be if the court “cleansed” the statute of its infirmities and ordered a retrial. Chief Judge Kaye asked Salomon if, under those circumstances, Harris would again be subject to a death penalty prosecution. “That is a question we did not brief in this case,” Salomon said. “We noticed,” responded Judge Richard C. Wesley. Salomon went from exploring Hynes to discussing Harris’ extreme emotional disturbance. Her main argument there was that Justice Feldman erred in failing to advise the jury that it had to first unanimously consider the affirmative defense before concluding guilt. She argued that a deadlock on the extreme emotional disturbance issue might have resulted in a mistrial. From there, Salomon attacked the judge’s refusal to allow rebuttal to challenge testimony of clinical psychologist Daniel Martell, who disputed the defendant’s claim of post-traumatic stress disorder. She then challenged the statutory charge, which informs the jury that, if it fails to agree unanimously on either a death or life-without-parole sentence, the court could impose a parole-eligible punishment. Justice Feldman ruled that portion of the charge unconstitutional and refused to allow it before the jury. Salomon said the offending provision could not be excised from the statute itself. The morning session ended with Zolot addressing the issue of whether a death-qualified jury results in bias, and Kelly complaining of unnecessarily inflammatory evidence. Judge Wesley confronted Zolot on the bias issue, and attempted to obtain from her a concession that in this case the death-qualifying process had no impact on the racial make-up of the jury. She refused to concede the point. In Kelly’s inflammatory evidence argument, she objected to testimony that Davis begged for her life and the welfare of her five young children as Harris stabbed her to death. Judge Howard A. Levine, however, suggested that such testimony went straight to Harris’ “state of mind” and was therefore admissible. PROSECUTION ARGUMENT After a 90-minute lunch break, the prosecution took center stage, with Jonathan L. Frank, senior associate at New York’s Skadden, Arps, Slate, Meagher & Flom and a former Brooklyn assistant district attorney, in the lead-off role. For five minutes, Frank argued without interruption — a courtesy he demanded when he first approached the bench — that Harris richly deserved the sentence he received from a properly selected jury. He ridiculed the emotional disturbance argument, claiming that Harris knew exactly what he was doing and showed no signs of psychological stress. “For what he did — what he did — he deserves to die,” Frank said. “Justice and the interests of justice are served by that jury verdict. … Unless there is an overarching constitutional issue, this court should affirm.” Frank briefly addressed wrongful conviction issues that have emerged in other states, and said in this case guilt is 100 percent certain. He said the New York statute was painstakingly crafted to avoid infirmities in the laws of other states. Then, the Hynes questions began with nearly every judge again weighing in. “Does Hynes v. Tomei require us to reverse, as that decision stands now?” asked Judge George Bundy Smith. Frank acknowledged that the court could not affirm the sentence without modifying Hynes. However, he stressed that Hynes is ripe for modification since it stemmed from a declaratory judgment action, not a wholesale examination of the statute. Frank urged reconsideration of Hynes in the context of the entire statutory framework. “This sounds to me like a motion to reargue Hynes v. Tomei,” Judge Rosenblatt said. “I’m not getting anything more out of this than a motion to reargue.” Keith Dolan, deputy chief of the Brooklyn district attorney’s appeals bureau, spent much of his time defending the conviction against alleged trial errors — a broad category that seemed of particular concern to Chief Judge Kaye. He fielded questions on the propriety of swearing a jury who was openly hostile to child abuse as a mitigating factor, and testimony regarding Davis’ pleas for her life. Judge Rosenblatt said he was more concerned with corroborating testimony that Davis did indeed have “five babies” than the introduction of her dying words. “The truth of her assertion … why is that relevant to anything?” he asked. Deputy Attorney General Peter B. Pope, who was defending the statute for the state, quickly and candidly conceded that the court cannot uphold the death sentence without modifying Hynes. REBUTTAL ARGUMENTS The day’s arguments concluded with rebuttal by Salomon and Zolot. Salomon suggested there was confusion on the part of the jury with regard to the extreme emotional disturbance defense. She said it is not clear that the jury knew that it had to unanimously agree to either accept or reject that defense position. Justice Feldman rejected a defense request to poll each individual juror, an initiative opposed by the prosecution. “They [the defense attorneys] wanted to know the truth,” Salomon said. “They were not afraid. There was just [prosecution] resistance, and there was no reason for it.” It is unclear when the court will issue an opinion. Although it usually decides cases within six weeks of argument, observers expect People v. Harris to take considerably longer.

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