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Former Suffolk County, N.Y., District Attorney James M. Catterson Jr. sought the death penalty in three cases after capital punishment was reinstated in 1995, winning a jury verdict for death each time. As a result, half of the six inmates now on New York’s death row — Robert Shulman, Stephen LaValle and Nicholson McCoy — were all convicted in Suffolk County. The remaining three were sentenced to die by juries in Kings, Monroe, and Onondaga counties. Suffolk, partly suburban and partly rural, is hardly the most crime-ridden of the state’s 62 counties, with just 15 first-degree murder indictments in the past seven years. That represents about one-fifth the number handed down in Brooklyn, N.Y., a quarter of those in the Bronx or half of those in Queens. Catterson did not seek the death penalty more often than some other district attorneys. Brooklyn District Attorney Charles J. Hynes filed notices of intent to seek the death penalty in seven cases, the Monroe and Queens district attorneys did so in five cases each, and the Rensselaer district attorney filed two notices. However, while Brooklyn prosecutors took four cases to trial and prosecutors in Monroe County took three, only a single death verdict was secured in each county. In two trials in Queens, neither jury returned a sentence of death. Catterson credited his office’s successful prosecutions to the skill of his homicide prosecutors and the fortitude of Suffolk’s jurors. Defense attorneys, however, credited Catterson. “It couldn’t be clearer that a tremendous amount turns on the judgment of the individual district attorney. And often factored into that is a sense of both what will appeal to jurors and what will appeal to voters,” said Kevin Doyle, head of the New York State Capital Defenders Office, which was created by the 1995 statute to insure that capital defendants are provided with competent lawyers. In Catterson’s 12 years in office, he stressed an intensive, continuous education for his trial assistants — he often called the best ones his “warriors” — and said that training was the primary reason for Suffolk’s record in death penalty cases. He and his former chief assistant, Mark D. Cohen, were strong advocates for creation of the New York Prosecutors Training Institute, and for larger district attorney’s offices sharing their knowledge and experience with smaller ones. Cohen, now general counsel to the State Office of Public Security, was president of the Association of Government Attorneys in Capital Litigation, a national organization of prosecutors who have handled death penalty cases. The creation of the Training Institute as a non-profit educational agency was written into the death penalty statute. It continues to host dozens of capital training sessions per year and to act as the hub of a nationwide support network, said executive director Sean Byrnes. Catterson chose not to seek the death penalty in 12 potentially eligible cases, but said the crimes underlying the three he pursued were so vicious that he was left with little choice. Serial killer Robert Shulman, the first New Yorker sent to death row since 1995, reportedly bludgeoned and dismembered five women, three in Suffolk and two in Westchester. A former postal worker with a history of mental illness, he was convicted of the Suffolk murders in 1999. Following a previous homicide conviction, Stephen LaValle was paroled just three months before he attacked a 32-year-old mother of two and popular track coach one morning in 1997 while she was jogging. He raped the woman and then stabbed her more than 70 times. Nicholson McCoy, the most recent arrival on death row, was convicted two years ago of sodomizing, suffocating and stabbing a 32-year-old female co-worker. He was on parole for manslaughter after serving 13 1/2 years in prison. “The three were very compelling. I felt the decision had to be beyond all doubt, and the presence of DNA in each of those cases helped me reach that point. I struggled more with the others where I didn’t seek the death penalty,” Catterson said. While many predicted that up to 20 percent of the eligible cases would go to capital trials following enactment of the death penalty statute, data compiled by the Capital Defenders Office puts the actual percentage at less than 7 percent. District attorneys said the statistics reflect their cautious approach. 376 INDICTMENTS There have been 376 first-degree murder indictments statewide since the law went into effect. There were 261 first-degree murder indictments handed down in the 19 counties where a total of 43 death notices were sought against 42 defendants. One defendant was served with two notices. District attorneys served death notices on 41 defendants, and one was served by the state over the objection of Bronx District Attorney Robert T. Johnson. Sixteen cases went to trial, with two defendants pleading guilty before the penalty phase. Of the 14 trials that reached completion, six ended in a jury verdict for death, seven ended with verdicts for life in prison without possibility of parole, and one ended in acquittal. After the death penalty statute was enacted on Sept. 1, 1995, and before the Training Institute was created, New York prosecutors drew on the expertise of The Association of Government Attorneys in Capital Litigation. “From time to time, issues arose, either pretrial or during trial, and there would be a ready group of very experienced prosecutors, some of whom had litigated capital prosecutions in other states for 20-something years, and some of whom had been to the U.S. Supreme Court more than 10 or 12 times,” said Cohen. The ability to consult with them on issues unique to capital litigation, such as sentencing and jury selection, was “invaluable” as “New York jump-started its ability to not only successfully but properly prosecute death penalty cases,” he said. For example, during the penalty phase of the LaValle trial, LaValle told his lawyers not to present evidence that could help him avoid the death penalty. A dispute that arose over the defendant’s right to waive his right to present mitigating evidence was resolved, Cohen said, when Suffolk prosecutors gained swift access to similar cases litigated in other death penalty states and to the prosecutors who had handled those cases. Also in pre-Training Institute days, there was an informal agreement that large district attorney’s offices would send experienced prosecutors to smaller counties. A Brooklyn prosecutor who worked on the one Kings County case that ended with a death verdict was dispatched to upstate Essex County to help try the one capital case to go to a jury there. Hynes, the Brooklyn district attorney, has also provided appellate support to Ulster County. In addition to shared expertise, Catterson credited Suffolk’s “intelligent and independent-thinking jurors” for his three successful prosecutions. “They are homeowners and wage earners who are willing to step up to the plate. Frankly, it’s more astounding that Charlie Hynes could pull a death penalty out of a jury in Brooklyn than that I could get three in Suffolk,” he said. Urban jurors are generally considered more sympathetic to criminal defendants. In Brooklyn, Hynes served seven defendants with death notices and took four to trial. Just one, Darrel K. Harris, was sentenced to die by lethal injection. His appeal will be argued at the Court of Appeals on May 6; it will be the first appeal of a death sentence under the 1995 statute that reenacted capital punishment. There has never been any question about where Catterson stood. In 1964, as a young homicide prosecutor, he tried the last capital case in Suffolk before the statute then in effect was overturned. Neither defendant was given the death penalty. Two years ago, Catterson announced he would himself prosecute McCoy but later changed his mind, citing the burden of his other duties. Catterson, a staunch proponent of the death penalty who played a leading role in drafting the 1995 statute as president of the State District Attorneys Association, lost a bid for a fourth term last year. His successor, Thomas J. Spota III, remains a wild card in application of the death penalty in New York. Spota said little about capital punishment during his campaign last fall, and four months into his term he has yet to face a case eligible for the ultimate punishment. He did say recently, however, that he most likely would have made the same decisions as Catterson, given the facts of those three cases. Criminal defense attorney Robert C. Gottlieb attributed Suffolk’s 100 percent conviction record “to a combination of factors having nothing to do with the experience of the prosecutors. I think Mr. Catterson, as a political animal, was quite aware Suffolk by and large remains a very conservative county.” Gottlieb, who ran unsuccessfully against Catterson in 1989 and defended LaValle, recalled “incredible battles during voir dire reflecting the reality that it is impossible to select a jury in Suffolk that is seriously going to consider the option of life without parole.” PROSECUTORIAL DISCRETION Gottlieb observed a geographic disparity across the other downstate counties, with defendants convicted of the same crime facing different punishments depending on where they are tried. “If any of Suffolk’s three cases had occurred 15 miles to the west in Nassau County, or 50 miles to the west in Manhattan, there would be no question of a different outcome. And therein is the incredible absurdity and unfairness of the statute. Every one of Suffolk’s cases was a horrible, horrible murder, but murder is horrible no matter where it takes place,” he said. Byrnes said district attorneys have discretion with regard to a variety of crimes, and added that disparate outcomes in punishment do not render the underlying statutes unconstitutional. Nassau has seen the same number of first-degree murder indictments as Suffolk since 1995 — 15 — yet Nassau District Attorney Dennis Dillon has not served a single death penalty notice. Manhattan District Attorney Robert Morgenthau has reviewed 59 death-eligible cases in his jurisdiction and also has not served any. “There was no case where I really struggled with the decision,” said Dillon, adding that his sole consideration is “whether or not society can protect itself. So far I haven’t come across any case where society was not protected by imprisoning a convicted murderer for the rest of his life.” “But different DAs draw that line in different places,” he added. A devout Roman Catholic, Dillon’s personal view mirrors the Catholic church’s: “given the prisons’ ability to safeguard society, the death penalty should be rare, if not virtually non-existent.” He declined to seek the death penalty for Shaun Alexander, for example. Alexander, 25, is accused of kidnapping and mutilating 20-year-old Max Kolb, a fellow Hofstra University student, and of carrying his disemboweled body around in his car for days before burying it in his backyard. Two of Nassau’s eligible cases are pending, including Alexander’s. Dillon noted his office obtained convictions or guilty pleas in all of the 13 adjudicated so far, with sentences ranging from 15 years-to-life up to life without parole. He too credited a strong team of experienced homicide prosecutors, saying their 100-percent conviction rate on cases that would otherwise have been eligible for the death penalty will lead to the same eventual outcome as Suffolk’s. “Someone goes to prison and dies there. Someone who gets the death penalty dies there as well. So what are we getting for all the money we’ve spent?” he asked, calling a death verdict, with its additional trial and appellate costs, more burdensome on taxpayers. Several district attorneys declined to be interviewed, each citing concerns about how their remarks could affect upcoming appeals. Morgenthau declined to be interviewed. But his spokeswoman, Barbara Thompson, said the district attorney’s primary standard for reviewing death-eligible cases is “his duty to protect the public,” suggesting that he, like Dillon, has yet to encounter a defendant for whom imprisonment was not sufficient. DUTY-BOUND TO PROTECT But Westchester District Attorney Jeanine Pirro draws a sharp distinction between “society” in general and “the public.” Citing the case of Lemuel Smith, who murdered a female corrections officer while serving two life terms, Pirro counts inmates and prison guards as among those she is duty-bound to protect. Smith, who had been convicted of murder twice before being convicted again in 1983 for the murder of Donna Payant, the corrections officer, was sentenced to death under the state’s previous death penalty law. Once that law was declared unconstitutional, he was resentenced to life without parole. Pirro chaired Gov. Pataki’s criminal justice transition team when he was first elected, working there and on the District Attorney Association’s executive committee, of which she was later president, for reinstatement of the death penalty. “We can look at it as a deterrent or retribution, but as far as I’m concerned the Lemuel Smith case speaks to the benefit: With some individuals, even if we house them, the inmates and the corrections officers are not safe. The time comes when we have to say enough is enough,” she said, asserting that 200 people with prior homicide convictions are on death rows across the United States. Despite her belief that “law enforcement needs to have the ability to seek the ultimate punishment,” she reviewed eight death penalty-eligible cases before deciding to seek the execution of Dennis Salvador Alvarez-Hernandez, 23, whose case goes to pretrial hearings this month. He is accused of stabbing to death his girlfriend and her two children, ages 4 and 7. Unlike Smith, Alvarez-Hernandez had no prior homicide convictions, but did have a history of domestic violence. Pirro’s decision in his case, as in the other seven where the death penalty was not sought, came down to “an analysis of scale, all the aggravating versus the mitigating factors. We found out everything we could about this defendant, his background, and his case,” she said. REVIEW PROCESS Other district attorneys interviewed said they too make exhaustive investigations into each defendant and crime before deciding, but the penalty sought depends on which side of the county line a capital offense is committed. By crossing the line between Dillon’s jurisdiction and that of Queens District Attorney Richard A. Brown, the risk of facing the death penalty rises considerably. Brown declined to be interviewed, but in a column he wrote for this month’s Queens Bar Bulletin, he said that he neither supports the death penalty nor believes it deters crime. “However, whether one is for or against the death penalty is not, in my judgment, the issue. The Legislature has spoken, and I, as the elected chief law enforcement officer of my county, have a responsibility to carry out its mandate,” he wrote. Brown described a painstaking review process in which there is room only for the questions of “whether seeking the death penalty could impact upon my ability to get a conviction, and whether I am going to be able to sustain a death sentence on appeal.” As a result, his office has filed death penalty notices in five of the 28 first-degree murder indictments it has obtained since 1995. Two went to trial, neither ending in a death verdict. In sharp contrast, Johnson, the Bronx district attorney, likewise does not support the death penalty, also contending it is not a deterrent. Just one of the 66 first-degree murder indictments handed down in the Bronx over the past seven years has led to a death penalty notice — and that was not served by Johnson’s office. In 1996, Johnson took a stand against the death penalty by refusing to seek it for Angel Diaz, who was accused of murdering a police officer. Gov. Pataki countered by removing Johnson from the case. The state attorney general’s office filed a death penalty notice. But Diaz committed suicide in jail and was not tried. Johnson, who has been in office since 1989, also declined to be interviewed for this article. His public information director, Steven Reed, emphasized that, even absent any threat of the death penalty under Johnson’s administration, the murder rate there has continuously dropped since 1990. Catterson said, “I believe on the whole that the DAs have been admirably restrained. This is, after all, the most difficult decision, the most awesome responsibility a DA will ever face. But, in the end, I have to ask myself if I hadn’t sought the death penalty for those three cases, then why would we need a statute?”

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