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The lawyers arguing the first test of New York state’s 1995 death penalty statute Monday turned in generally strong performances under intense questioning from the seven judges of the New York Court of Appeals. Jonathan L. Frank, the lead prosecutor at both the trial and appeal of the first person to be sentenced to die under the statute, Darrel K. Harris, had the particularly difficult task of telling the court that unless it modifies its 1998 decision voiding the plea provisions of the capital punishment law, Harris’ death sentence must be overturned. Frank bravely soldiered forward in the face of a point-blank question from Chief Judge Judith S. Kaye as to whether he was asking the court to find “that we were wrong in Tomei,” the 1998 case in which the court had struck the plea provision ( Hynes v. Tomei, 92 NY2d 613). Frank did not flinch from the task. The ruling was “overbroad and unnecessary” in so far as it found the plea provision unconstitutional, he responded. He said the ruling, unless modified, leaves the law in a state that would require the overturning of Harris’ death sentence for killing three persons in a Brooklyn social club. However, Frank contended, there were two separate bases under which the court had “an obligation under well-settled principles” to modify that decision. It should recognize that the 1995 statute creates two separate tracks, one for capital cases where the death penalty is being sought, and one for non-capital cases where the prosecution is seeking life without parole. Alternatively, he continued, the court could make an administrative finding that the death notice is withdrawn — and therefore the defect is cured —when a judge accepts a guilty plea from a capital defendant. The defect that the court identified in Hynes was that under a 1968 U.S. Supreme Court ruling, U.S. v. Jackson, 390 U.S. 570, a capital defendant’s right to a jury trial is impermissibly burdened under a statutory scheme that permits avoidance of the death penalty through a guilty plea. Frank was also put in the uncomfortable position of having to defend his own summation when he had asked the Brooklyn jury to impose the death penalty. Again Frank did not shy from the task when Chief Judge Kaye queried whether he had improperly “asked the jurors to step into the shoes” of the victims. Frank responded by reiterating some of the lurid details of the murders: One of the victims “squirm[ed]” under the bar, and Harris stalked another victim, shooting him in the head from a distance of “ one-inch.” Denying that he had asked the jurors to put themselves in the place of the victims, Frank said the crimes were “so awful, so horrific” that he was asking the “jurors to consider how bad” the murders were. At the outset of his opening Monday, Frank took the unusual step of asking the judges to let him speak uninterrupted. He then spent his first five minutes delivering a fiery speech that was a replica of his summation asking the jurors to sentence Harris to death. DEFENSE SIDE From the defense side, the lead appeals lawyer, First Deputy Capital Defender Susan H. Solomon, came on strong after some initial hesitation in her opening lines. Even though several judges pressed her, she held her own and scored points, using colorful language and hand gestures. For instance, Judge Richard C. Wesley bore in on her argument that the trial judge, Justice Ann G. Feldman, should have expressly told the Brooklyn jury it had to be unanimous in accepting or rejecting Harris’ defense that his actions were the product of an extreme emotional disturbance. Wesley asked: Did not Justice Feldman’s explanation to the jury, in response to a juror’s question, that they must be unanimous in their finding on Harris’ extreme emotional disturbance defense “clearly convey that, however they answered the question — ‘yes’ or ‘no’ — they had to be unanimous?” While some jurors may have understood the answer that way, she insisted that the very fact that the jury asked the question “sufficiently bespeaks of its [the jury's] confusion.” And then, when Justice Albert M. Rosenblatt asked whether the defense had waived the objection by not asking for an explicit question on the jury verdict sheet — to make it clear that unanimity existed for rejection if it did not exist for acceptance — Salomon fired back: “They sought a pinpoint instruction � it was not conceivably a waiver. They could not have made their position clearer.” Appellate specialist Barbara Zolot of the Capital Defender Office showed mastery of the record when Wesley challenged the defense claim that juror 233 should have been excluded for cause because she could not fairly assess evidence of child abuse. Wesley, also in firm command of the record, asked whether on page 7,282 the juror had said on her jury questionnaire that she regarded striking a child with “a fist, stick or strap” as “inappropriate.” Zolot responded that the instrument referred to in the trial testimony had been “an extension cord, I believe.” In any event, she added, both sides regarded the jury questionnaires “as a wash.” Keith Dolan, the head of the appeals bureau at the Brooklyn district attorney’s office, ran into difficulty over juror 233. Dolan clung to his position even though pressed by three different judges over his assertion that it did not matter if the prospective juror could not be fair in assessing evidence that Harris had experience childhood abuse. Wesley pressed him, asking if it would not matter if the juror had said “I don’t care if his father beat him to a bloody pulp.” Somewhat weakly, Dolan hewed to his argument even when Kaye asked him if he would do so in the face of Wesley’s “preposterous example.” Even when Chief Judge Kaye challenged him asking, “isn’t that bias,” he insisted that it was all right for the juror to be unable to consider evidence of child abuse as long as she could fairly weigh evidence of other mitigating factors.

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