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On May 6, the New York Court of Appeals will hear the first broad-based constitutional challenge to New York’s 1995 death penalty statute. The challenge comes in the appeal of Darrel K. Harris, a decorated former corrections officer who was the first person to be sentenced to die under the new law. He was convicted of murdering three people during a robbery of a Brooklyn social club in 1996. Despite a procedure mandated by the New York Constitution authorizing Harris to appeal directly to the Court of Appeals, it has taken nearly four years for the case to come to the state’s highest court since a Brooklyn, N.Y., jury sentenced him to death on June 6, 1998. That it should take four years is hardly surprising, since the judge and lawyers in the Harris matter were trying the first death case in a generation under a brand-new statute. With no template for how the law should operate in practice, they had to fashion procedures from scratch. And since all rulings were by definition precedent setting, the defense both in pretrial motions and during trial had an obligation to raise every conceivable legal infirmity to insure that its appellate record was protected. The result was a three-month trial, including jury selection, and a record that covered more than 5 feet of shelf space. When the two sides distilled that record into legal points in their briefs, the defense produced a document of 779 pages, and the prosecution responded in 1,181 pages. In addition, Harris filed a 269-page reply brief on April 2. The state attorney general’s office has filed a brief defending the constitutionality of the new law, and four amicus groups have filed briefs challenging the statute in whole or in part: They are the Association of the Bar of the City of New York, the New York Civil Liberties Union, the Cornell Death Penalty Project and a group of 19 law school professors. Recognizing the historic nature of the legal test, the court has scheduled four hours of argument and given permission for three lawyers to argue for the defense and two for the prosecution. The Legal Aid Society represented Harris in the trial, which was presided over by Acting Brooklyn Justice Anne G. Feldman. On appeal he is represented by the Capital Defender Office (CDO), which was created by the 1995 statute for the purpose of insuring that capital defendants are provided with competent lawyers. The three lawyers who will be presenting Harris’ arguments to the court are Susan H. Salomon, a 29-year veteran of criminal appellate work who is in charge of appellate practice at CDO; Barbara Zolat, who has 14 years of experience handling criminal appeals and is currently splitting her time between the CDO and the Center for Appellate Litigation, which represents indigent criminal defendants before the Appellate Division, 1st Department; and Laura S. Kelly, who has specialized in appellate work since joining the CDO in 1998. Arguing for the prosecution will be Jonathan L. Frank, a former executive assistant district attorney in Brooklyn and the lead prosecution attorney at the Harris trial. Frank, who had been with the Brooklyn district attorney’s office since 1984, joined New York’s Skadden, Arps, Slate, Meagher & Flom as a senior litigation assistant about a year after the death verdict. Joining him will be Keith Dolan, who has been with the Brooklyn office’s appeals bureau for 15 years and is now a deputy bureau chief. In addition, Deputy Attorney General Peter B. Pope has been given 15 minutes to defend the statute’s constitutionality. MENTAL STATE AT ISSUE For all the newness of the statute, though, the trial itself was waged on familiar ground. Harris, who is now 44, did not deny killing the manager of Club Happiness in the Bedford-Stuyvesant section of Brooklyn, and two of its patrons, and seriously wounding a third patron in the early morning hours of Dec. 7, 1996. Instead, Harris, who was given the City Department of Correction highest award for saving another officer’s life during a prison riot in 1986, contested the prosecution’s portrayal of his actions as cold-blooded slayings during a robbery. Contending that his actions were the product of an extreme emotional disturbance, Harris had sought to persuade the jury to convict him of manslaughter in the first degree, a crime with a maximum penalty of 8 1/3 to 25 years in prison. Harris contended that rather than killing the victims in a raw attempt to prevent them from becoming witnesses to the robbery, he snapped after being insulted inside the social club. The defense tried to draw a picture of Harris as suffering from a deprived and abusive childhood, and having mental deficits as a result of childhood disease. He also suffered from posttraumatic stress disorder after the prison uprising, the defense contended, and had been on a downward spiral into drug and alcohol abuse in the years following his forced resignation from the Department of Correction in 1991. The jury rejected Harris’ defense of extreme emotional disturbance after the guilt phase of the trial, and found him guilty of intentionally murdering three people during the commission of a felony, and killing more than two in a single transaction — two of the 12 circumstances defined by the new law as capital crimes. After four days of intense deliberations that at one point required a court officer to separate two jurors about to come to blows, the jury sentenced Harris to death. Much of the evidence the jury rejected in imposing the death penalty had been offered to sustain the affirmative defense of extreme emotional disturbance during the guilt stage of the trial. AN AMALGAM Reflecting the dual nature of the trial — an untested death statute and a trial fought on traditional grounds — Harris’ brief is an amalgam of constitutional claims and points that are the bread and butter of criminal defense. The brief raises well over 40 constitutional claims, attacking either the statute itself and individual provisions, and aspects of the way the trial was conducted. There are dozens of more routine claims aimed at the manner in which the jury was selected, the way the jury was charged, and how the prosecution handled the case. For instance, Harris’ brief asserts that Justice Feldman committed at least 31 errors in the questioning and seating of jurors. In addition to providing for a direct appeal to the Court of Appeals, the 1995 statute gives the court expanded review powers permitting it to review the trial court’s factual findings as well as its legal rulings. Using those broadened powers, the court will consider the constitutionality of a capital statute for the first time since 1984, when it struck the remaining remnant of New York’s then-existing capital scheme in People v. Smith, 63 NY2d 41. New York has not had a broad-based capital statute encompassing many categories of intentional murder since 1965, when the state Legislature narrowed the categories of murder subject to the death penalty to the killing of peace officers and murders committed by prisoners with life sentences. And no one has been executed in New York since Eddie Lee Mays was electrocuted in 1963. When New York re-enacted the death penalty in 1995, it was the 38th state to do so. Symbolic of the importance attached to the new law, it was labeled “Chapter 1 of the Laws of 1995.” To date, New York is the last state to have re-instated capital punishment in the wake of the U.S. Supreme Court’s 1976 ruling in Gregg v. Georgia, 428 U.S. 153, which, after a four-year hiatus, made it clear the “cruel and unusual punishment” clause of the Eighth Amendment to the U.S. Constitution does not bar the death penalty. The Gregg opinion laid to rest doubts about the constitutionality of the death penalty that had been raised by the Supreme Court’s 1972 ruling in Furman v. Georgia, 408 U.S. 238. In Furman, a fractured Court, which divided 5-4 and issued nine separate opinions, overturned a death sentence because the death penalty as then administered was so randomly imposed as to constitute cruel and unusual punishment. Four years later, in Gregg, the Supreme Court gave the states a blueprint for the enactment of death penalty statutes that would pass constitutional muster by setting standards for juries in deciding death cases. OTHER AVENUES REMAIN Should the court decide to affirm Harris’ death sentence, he will still get another shot at appearing before that panel, because the court has deferred hearing any claims that the death penalty has not been evenly applied in New York. The 1995 law provides for a proportionality review and mandates that factual data be collected so that the court can weigh whether the statute is being administered evenly along racial, gender and geographic lines, as well as a host of other factors. Harris could also ask the U.S. Supreme Court to review his case. That failing, the 1995 law specifies that he be provided counsel for one round of post-conviction proceedings in New York in which he would be able to raise matters outside the existing trial record. Typically in proceedings under State Criminal Procedure Law � 440, defendants raise claims of ineffective assistance of counsel and newly discovered evidence. Harris could also file a federal habeas corpus proceeding, though the scope of such a challenge has been sharply narrowed by the Anti-Terrorism and Effective Death Penalty Act of 1996. While the state Capital Defender Office is not authorized to pursue federal remedies, Harris would be entitled to have a federal judge assign him a court-appointed lawyer who would be paid at a rate of $125 an hour, according to Professor Eric M. Freedman, a death penalty expert at Hofstra University Law School. With five other defendants on death row, the next capital case is not that far away for the Court of Appeals. The case of James Cahill, who was sentenced to death by a jury in Syracuse in August 1999 for poisoning his semi-comatose wife, is on track to be argued in the court early next year. FRONT-LINE CHALLENGE One legal argument that Harris could pursue that would eliminate the state’s 1995 law in one fell swoop is the claim that the death penalty constitutes “cruel and unusual” punishment under Article I, � 5 of the state Constitution. Such a claim, however, would have to overcome a very big obstacle — the U.S. Supreme Court’s 1976 Gregg ruling that the nearly identical “cruel and unusual” punishment clause of the U.S. Constitution does not bar the death penalty. In raising the state constitutional argument, Harris is asking the Court of Appeals to do something it has not done in 112 years: address the state’s prohibition against cruel and unusual punishment in the context of a capital case. In 1890, the court rejected a claim that capital punishment violated Article I, � 5 in People v. Kemmler, 119 NY 580, in a ruling approving legislation that substituted the electric chair for hanging as the method of execution in New York. In addition to the court’s lengthy silence on Article I, � 5 in the capital context, it has never invoked the state prohibition to void any other type of punishment as being too disproportionate to the crime it is intended to sanction. Nor have similar constitutional claims mounted in other states gained much traction. In the post- Gregg era, the high court of only one other state, Massachusetts, has by judicial ruling abolished the death penalty. That ruling came in Commonwealth v. Cruz, 470 NE2d 116 (1984). SOCIAL SCIENCE STUDIES To overcome that deficit in terms of legal precedent, Harris offers a blend of policy arguments and social science studies. Statistical studies demonstrate that the death penalty increases murders rather than deters them, Harris contends. He also claims that historically New York has executed “no fewer than eight innocent people.” He cites studies showing that minorities are disproportionately sentenced to death, and that a death sentence is more likely the outcome when a white person is the victim. The prosecution responds by attacking the social science relied upon by Harris as unsound, asserting that it is “folly,” quoting from a court opinion, to rely upon statistics alone. Turning to the specifics of Harris’ claim, the prosecution notes that the authors of a key study purporting to have found that innocent persons were executed had acknowledged that their findings had not been “proved.” As for Harris’ claims of racial disparities in the way the death penalty has been administered, the prosecution offers a Rand Corp. study that found an “absence of significant racial bias” in capital prosecutions. The prosecution also points out that only one of the six inmates on death row was a black person convicted of killing a white victim. The prosecution notes further that Harris, one of two blacks on death row, killed three black victims. Harris also presses the policy argument that use of the death penalty is at odds with New York’s “maturing mores.” He contends that the 1995 law is the first in New York since 1937 that would allow a death sentence for a murder that is not “deliberate and premeditated.” To bolster that contention, the defense presents data showing a steady decline in the number of executions in New York, from 153 in the 1930s to 10 in the 1950s. The prosecution responds that “legislation is the proper measuring stick of society’s evolving standards of decency.” The passage of the 1995 law, which carried out a major pledge of Gov. Pataki’s first campaign, the prosecution contends, was “a societal endorsement” of capital punishment. So was the Legislature’s adoption of death penalty bills in each of the 18 years following the Supreme Court’s Gregg ruling removing a federal cloud over the death penalty. Those bills, however, were consistently vetoed by former Govs. Hugh Carey and Mario Cuomo, the prosecution’s brief notes. IMPACT OF PLEA RULING A paucity of precedent may well make the defense’s state constitutional “cruel and unusual” claim an uphill struggle. But that is hardly the case with its claim that Harris should be sentenced to life without parole because of a 1998 ruling in which the Court of Appeals struck the plea provisions of the 1995 law on the strength of 1968 U.S. Supreme Court precedent. To support its argument that Harris should be resentenced, the defense cites eight instances in which the U.S. Supreme Court ordered life without parole sentences for prisoners on the strength of its ruling in U.S. v. Jackson, 390 U.S. 570. Each of those death row inmates had been sentenced to die after going to trial under statutes with plea provisions of the type that were voided by the Supreme Court in Jackson. Like the defendants in those eight cases, Harris was sentenced to die by a jury under a plea scheme that was subsequently voided by a judicial opinion. Harris was sentenced to death on June 6, 1998. About six months later, on Dec. 22, 1998, the Court of Appeals in Hynes v. Tomei, 92 NY2d 613, voided the plea provisions of New York’s law applying Jackson. Rather than attempt to pick apart the defense’s legal argument, the prosecution asks the Court of Appeals to revise some of the conclusions it reached in its unanimous Tomei ruling on the theory that New York’s law can be construed to avoid any constitutional weakness. The constitutional defect identified in Jackson was that a capital defendant’s rights to avoid self-incrimination and to a jury trial could not be burdened by a scheme that permits the imposition of the death penalty for someone who goes to trial, but bars it for someone who accepts a plea. In Tomei, the Court of Appeals found that same defect applied to New York’s statute, which barred the imposition of the death penalty unless a defendant is convicted after a jury trial, but limits the exposure of a defendant who pleads guilty to capital murder to life without parole. To avoid punishing a defendant for the exercise of the constitutional rights recognized in Jackson, the Court of Appeals ruled that it is improper for a judge to accept a guilty plea to a capital count while a prosecution “notice of intent to seek the death penalty is pending.” The prosecution urges the Court of Appeals to read the plea provisions, Criminal Procedure Law (CPL) � 220.10(e), differently than it did in Tomei. Rather than creating a scheme that provided two different penalties for the same offense, depending upon whether a defendant pleaded guilty or went to trial, the prosecution argues that the statute created a “dual track.” Citing the fact that the statute requires the prosecution to consent to the entry of a plea, prosecutors argue that the statute creates two tracks — a capital track for cases that go to trial and a non-capital track for cases where pleas are entertained. Because the prosecution’s consent is required, its agreement to accept a plea is “nothing less than an unequivocal decision not to seek the death penalty,” and the court’s acceptance of the plea “effectively works a withdrawal of the death notice,” the prosecution contends. Harris’ case is illustrative of the cross-currents involved in pleas in capital cases. Twice before his trial started, Harris came to court prepared to accept a plea that would have resulted in a sentence of life without parole, only to have the deal fall through. The second time Harris offered to plea, on Feb. 28, 1998, he twice answered “no” when Justice Feldman asked him if he was pleading guilty because he was guilty. The plea fiasco led death penalty critics to charge that New York’s sentencing scheme is “coercive.” But the prosecution contends that Harris’ backing out of the plea deal at the last moment exposes the danger of the Court of Appeals’ requirement in Tomei that it must withdraw a notice of intent to seek the death penalty before a plea may be entered. Once a death notice is withdrawn, it may never be reinstated, the prosecution points out. That creates the possibility, it argues, that an “unscrupulous” defendant could avoid the death penalty by offering to plead and then back out after the death notice is withdrawn. The court’s ruling on Harris’ Tomei argument could potentially affect another death row inmate, Robert Shulman, who was sentenced to die for brutally murdering three women. Shulman’s trial began in Suffolk County on June 15, 1998, before the Court of Appeals issued its ruling in Tomei on Dec. 22, 1998. The jury, however, did not sentence Shulman to death until May 6, 1999, several months after Tomei was decided. Another example of the type of constitutional litigation spawned by New York’s re-enactment of the death penalty involves Harris’ attack on a provision in New York’s law, CPL � 270.20(1)(f), that requires the exclusion from a jury in a capital case of any person who states a conscientious objection to the death penalty. Harris contends that the preclusion of death penalty opponents from a capital jury produces a panel that is more apt to convict during the first phase of the trial, which deals exclusively with guilt. The question of whether the death penalty should be imposed, he argues, is exclusively heard during the second — sentencing — phase of the trial. Once again, Harris faces an uphill struggle. Federal claims that his rights to an impartial jury and due process have been violated are barred by the U.S. Supreme Court’s 1986 ruling in Lockhart v. McCree, 476 U.S. 162. And to date, no state high court has sustained a similar claim under its constitution. But the defense brief points out that the Connecticut Supreme Court, by a bare 4-3 majority, rejected such an attack in 1999 ( State v. Griffin, 741 A2d 913). In addition, the defense notes, judges on the high courts of New Jersey, Pennsylvania, Utah and Washington have written dissenting opinions disagreeing with the Supreme Court’s reasoning in Lockhart. Harris also contends that numerous social science studies demonstrate that juries from whom death penalty opponents are excluded are “conviction-prone” and possess “pro-prosecution attitudes.” Nor does the statute’s exclusion of death penalty advocates who could not be fair in voting for life without parole even the tables, the defense contends. In Harris’ case, the defense reports, three potential jurors were excluded because of anti-death penalty views for every juror excluded for pro-death penalty views. In response, the prosecution urges that much of the social science research that the defense relies upon was rejected by the Supreme Court in Lockhart, and more recent studies are “just as flawed.” In addition, the prosecution argues that because the evidence presented at both the guilt and sentencing stages is intertwined, the state has a strong interest in having a single jury sit during both phases. SUMMATION ATTACKED The defense’s attack on the prosecution’s summation asking for the death penalty illustrates how the case is being fought along traditional lines as well as cutting-edge constitutional issues. The debate over the summation also reveals the fierce intensity of the legal battle at both the trial and appellate levels. The defense was particularly critical of a remark the prosecutor made in reference to photographs of the three victims on the table in front of him: “These are the people to whom we owe the highest allegiance and the people for whom justice can be achieved only one way … . They cannot ask for your verdict, but surely, surely they can hear it.” The prosecutor was also attacked for his assertion that “ultimately you have to speak for the entire family that is all of us … . You must decide what is right for the family that is all of us.” The sentencing phase summation was delivered by Jonathan L. Frank, one of the two attorneys who will be arguing the appeal for the prosecution on May 6. Those remarks were “a grossly prejudicial effort to inflame the jury,” the defense contends, because they were designed to “impermissibly” communicate to the jurors that they had “a responsibility to the victims and the community to impose death.” The prosecution retorts that the defense’s criticisms are “premised solely upon blatant mischaracterizations and distorted, out-of-context readings” of Frank’s summation. Rather than trying to persuade the jurors that they had a duty to the victims, the prosecution brief asserts, Frank’s “comment was only an attempt to humanize the victims and remind the jurors that they were more than just photographs that were introduced at trial.” Moreover, the brief points out, the remark was fair comment because the defense at trial had employed “mean-spirited” tactics, and “repeatedly dehumanized the victims” by portraying them as having engaged in drug use and other illegal activities. Similarly, the prosecution contended, Frank’s reference to the “family that is all of us” was a “correct and entirely permissible” reminder to the jurors that “they were the voice of the community.”

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