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Nearly four years have been consumed in bringing the case of Darrel K. Harris, the first person sentenced to die under New York’s 1995 law reinstating the death penalty, to the Court of Appeals. Many more will pass before the case is finally resolved, should the court uphold the 1995 statute and Harris’ death sentence. After an adverse ruling, Harris would still have four avenues to pursue in attempting to stave off his execution, two federal and two state. As his most immediate route, he would have 90 days to ask the U.S. Supreme Court to review his case. He could also ask the New York Court of Appeals to consider whether his death sentence is disproportionate to the sentences meted out in other similar cases. Those avenues failing, Harris could pursue separate post-conviction proceedings in state and federal court. Harris’ prospects on a certiorari petition seeking intervention by the Supreme Court may be brighter than they were several years ago, but in any case his chances of success remain long, judging from the comments of several defense lawyers who specialize in death penalty work. For many years, the Supreme Court was a decidedly inhospitable forum for death row inmates, with the Court frequently narrowing the grounds for review and even choking off claims of actual innocence, said Ronald J. Tabak, a death penalty expert at Skadden, Arps, Slate, Meagher & Flom. But since 1999, the Supreme Court has shown “a surprisingly high interest in death penalty cases,” and currently has a number of important cases on its docket, Tabak said. Additionally, some death penalty opponents pointed to a series of speeches recently made by Justice Sandra Day O’Connor expressing concerns about the performance of counsel in death cases. O’Connor, who has often been with the majority in narrow 5-4 rulings upholding death sentences, has questioned whether “the system may well be allowing some innocent victims to be executed.” She has also criticized the lack of access to DNA testing for death row inmates in some states. Among the claims that the Supreme Court is weighing, or has agreed to consider, are whether the Eighth Amendment proscription against cruel and unusual punishment bars the execution of the mentally retarded ( Atkins v. Virginia, 00-8452); whether juries, not judges, must determine if a death sentence is warranted ( Ring v. Arizona, 01-488); and how broadly a court may look in weighing a claim that a prosecutor exercised peremptory challenges in a biased fashion — must the judge look only at the way a prosecutor exercised challenges in the death row inmate’s case, or can the policies and practices of a district attorney’s office on peremptories be examined as well ( Miller-El v. Cockrell, 01-7662). Nonetheless, Tabak cautioned against drawing any conclusion that there has been an important shift in the Court’s approach to death penalty cases. Some cases that appear promising for the defense do not necessarily turn out that way, he said, pointing to the ruling in March upholding the death sentence of an inmate who claimed ineffective assistance of counsel because his lawyer had defended, in an assault case, the man he was accused of killing ( Mickens v. Taylor, 00-9285). George Kendall, who specializes in death penalty work at the NAACP Legal Defense and Education Fund, agreed that the prospects for challenging a death sentence in the Supreme Court are “slightly more hopeful than five years ago, but it is too early to tell if there is going to be real change.” PROPORTIONALITY REVIEW A second avenue for Harris would be to return to the Court of Appeals to challenge his death sentence as being disproportionate to sentences handed out in other murder cases on proportionality grounds, a line of attack specifically provided for in the 1995 legislation. While the Court of Appeals may hear proportionality claims in the appeal being argued in this case, it specifically ordered the point to be raised later when it framed the issues to be addressed in the current appeal. To insure that the 1995 statute is fairly administered, the Court of Appeals has ordered that data be collected in all death penalty cases on a broad range of factors: the circumstances of the crime; the strength of the prosecution’s evidence; the defendant’s upbringing and education; the relationship of the defendant and victim; and the socioeconomic status, sexual orientation, race and criminal records of both defendant and victim. Harris admitted killing three persons and wounding a fourth at the Club Happiness in the Bedford-Stuyvesant section of Brooklyn, N.Y., in the early morning hours of Dec. 7, 1996. The prosecution contended that the murders were execution-style killings committed during a robbery to prevent the victims from testifying against Harris. Harris, a former city correction officer decorated by former New York Mayor Edward I. Koch for saving another guard’s life during a 1986 prison riot, argued that the jury should convict him only of manslaughter, a crime with a maximum sentence of 8 1/3 years to life, because his actions were the product of an extreme emotional disturbance. He presented evidence that he had suffered a deprived and abusive childhood, and suffered a mental deficiency resulting from childhood meningitis. A defense psychiatrist testified that after the 1986 riot, he suffered from a posttraumatic stress disorder and that his life had spun out of control with drug and alcohol abuse. When Harris’ lawyers frame their proportionality arguments, geographic differences in the way the new law has been administered may offer a promising line of argument, suggested Professor James R. Acker, one of the founders of the Capital Punishment Initiative at the School of Criminal Justice at SUNY Albany. According to data tracked by the Capital Defender Office, he said, 81 percent of the homicides in New York state were committed in downstate counties in the six years after capital punishment was reinstated, but 61 percent of the death notices were issued by prosecutors in upstate counties. However, Sean M. Bryrne, the head of the New York Prosecutors Training Institute, said there is “not much merit” to geographic argument. “Geographic distinctions exist in the enforcement of all crimes,” he added, with a prime example being the difference between those states that have capital punishment laws and those that do not. In addition to the proportionality review, the 1995 statute also specifies that a capital defendant must be provided with a lawyer for one state post-conviction appeal of his death sentence under the State Criminal Procedure Law (CPL) � 440. Typically, proceedings brought under CPL � 440 challenge a conviction by raising matters outside the trial record, such as ineffective assistance of counsel or newly discovered evidence. In all likelihood, several defense lawyers said, Harris would bring his state post-conviction proceeding before filing a habeas corpus challenge in a U.S. District Court because of strict federal rules requiring claims to have been first presented in state court. The 1995 law makes several other significant changes in the procedures under CPL � 440 when a death sentence is challenged. In a non-capital case, a convicted defendant must get permission from a judge of the Appellate Division to take an appeal to that court from the trial judge’s denial of a request for post-conviction relief. But where a defendant has been sentenced to death, the 1995 statute creates a right of appeal if the trial court denies relief under CPL � 440, and specifies that the appeal be taken directly to the New York Court of Appeals. The New York statute, however, limits to one the number of lawyers a capital defendant may have in a post-conviction proceeding. At a capital trial and on an initial direct appeal to the Court of Appeals, a defendant is entitled to two lawyers. By rule, the Court of Appeals requires that a single lawyer assigned to a post-conviction attack on a death sentence be paid $125 an hour, the top rate paid to lawyers involved in a capital case at the trial level. HABEAS CORPUS Should proportionality and post-conviction review fail Harris, he would then turn to the federal courts by filing a petition for a writ of habeas corpus. Habeas scholars and capital case practitioners say that the percentage of cases in which state death penalty verdicts are overturned in federal court is remarkably high, even after Congress sought to limit what it saw as endless post-conviction review with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Two years ago, Columbia Law School Professor James S. Liebman and colleagues released a ground-breaking study showing that in capital habeas cases between 1973 and 1995, courts granted relief about 40 percent of the time, either in the form of a new trial or an order for resentencing. “What is important about those cases is that they have all been cleansed twice,” Liebman said. “They’ve gone through state appeals and state post-conviction relief, and having survived those reviews, 40 percent have still been overturned.” While the most common grounds upon which habeas relief is sought is ineffective assistance of counsel, the claim itself rarely succeeds, said Eric M. Freedman of Hofstra University School of Law, who has written on habeas cases. “Ineffective assistance of counsel is a gateway, both practically and legally, to a review of the merits of claims that habeas corpus doctrine would otherwise prevent federal courts from reaching,” Freedman said. “It’s a way to reach an underlying error in the proceedings that involves some bread-and-butter criminal law issue.” For example, Freedman said, a convicted criminal defendant may initially claim that his lawyer was ineffective because he or she failed to pursue a potential violation of the government’s obligation to turn over exculpatory evidence or failed to examine a question of juror misconduct. The defendant’s lawyer may also have failed to object to a prosecutor’s improper use of peremptory juror challenges based on race or ethnicity or missed a clearly improper jury charge by the judge. “Generally speaking, they have to be claims that undermine the validity of the original decision of the jury to convict and the decision of the jury to impose the death penalty,” Freedman said. The central issue facing judges reviewing habeas petitions in general, and capital habeas cases in particular, is the degree of deference that should be afforded a state court’s ruling. It is an issue that has long divided the nation’s circuit courts of appeal, particularly since the passage of the AEDPA in 1996. “There has been a tremendous amount of confusion as to how much the act limited the ability of the federal courts to grant a new trial or a new sentencing hearing in state capital cases,” said John H. Blume, director of the Cornell Death Penalty Project and a visiting professor of law at Cornell Law School. Blume, who is counsel with the Habeas Assistance and Training Project and serves as a consultant to federal defender services groups, has represented more than 100 convicted capital defendants on their appeals. “Some courts, most notably the 4th Circuit, have taken a very restrictive view and have reversed no sentences since the AEDPA. Other courts of appeal have not felt that Congress intended to eliminate federal habeas review and continued to believe that the courts play a meaningful role.” The act’s standard of review provision, contained in 28 U.S.C. � 2254(d), states that habeas corpus relief cannot be granted unless the federal judge finds that the state court’s decision was either contrary to, or an unreasonable application of, “clearly established” federal law as determined by the U.S. Supreme Court. But Blume said the problem is that a Supreme Court that criticized the AEDPA for generating more litigation than it has prevented has itself done little to explain the exact meaning of the phrase “unreasonable application of clearly established federal law.” So “some of the uncertainty,” as well as the split between circuits, he said, “has to do with the question: ‘How wrong does it have to be?’” The habeas jurisprudence of the 2nd U.S. Circuit Court of Appeals, Blume said, seems to indicate that the court believes “their hands aren’t completely tied” by the mandate that state court decisions are due a large measure of deference. “They haven’t viewed it nearly as restrictively as other circuits,” he said, citing both the 4th and 5th Circuits as courts that believe “extreme deference” is due state court decisions. Another provision of the AEDPA that has divided the federal courts is � 2254(e), which deals with the circumstances under which a federal court can hear new evidence. In that section, Congress limited the ability of a federal court to grant a hearing on a claim that the prisoner failed to develop factually in the state court. Blume and other practitioners agree that under the AEDPA, the most pressing issues facing Harris if he chooses to file a habeas corpus petition will be time and economy. In the AEDPA, Congress required that incarcerated defendants bring all their claims at once in a provision barring second or “successive” petitions. And Congress also placed a one-year statute of limitations on the filing of a petition from the final denial of appellate or post-conviction relief in the state. That period could ultimately be reduced to 180 days should states choose to “opt-in” by meeting certain minimum federal requirements on the quality of representation for criminal defendants in capital cases. As of yet, no state has chosen to “opt-in,” but defense lawyers and capital case specialists (who already feel the one-year limit is too restrictive) dread the day it actually comes to pass. “First of all, a lot of guys who have been denied that relief don’t have lawyers anymore, so it takes them a long time to find a lawyer who will mount a federal habeas petition,” said defense lawyer Eleanor Jackson Piel. “Second, there is no point in filing a habeas petition unless you can present a good case, and many times, that takes a lot of investigation.” One ground on which appellate lawyers have had increasing success, again through the “gateway” of an ineffective assistance of counsel claim, is that evidence that would mitigate against either a state prosecutor’s decision to seek the death penalty, or a jury’s decision to impose it, was not available at the time of trial. Freedman said it is usually the case that by the time of the federal habeas review, “more is known about the case, both factually and legally, than was known at the time of the original trial.” At the time of the crime, “the community is likely to be highly inflamed and there is likely to be intense pressure on law enforcement prosecutors, witnesses and all actors in the system,” he said. Witnesses who were unwilling to talk may be more willing later, he said. He cautioned, however, that that alone does not make out a legal claim unless it was ineffective assistance by defendant’s counsel to fail to dig up the evidence in the first place. Freedman and others say that among the most common grounds for rejecting habeas petitions is harmless error. Appellate prosecutors argue that the evidence was overwhelming and that the state court error did not prejudice the petitioner. Appellate defense lawyers, he said, will of course argue the evidence was less than overwhelming and the error was therefore critical to either guilt or the decision to vote the death penalty. New York state came relatively late to capital punishment, and death penalty experts say it is too soon to tell how capital convictions in the state will fare as they move into the federal system. A key factor will be how the federal courts, in conducting habeas reviews, treat New York’s proportionality review and the applications for post-conviction review. Professor Liebman said that what federal courts want from state courts is to get a case post-conviction on grounds that are clear. “New York State post-conviction law is some of the most complicated and inefficient in the country,” Liebman said. “Two things happen. First, defendants get shuttled from one remedy to another and it can take years. The 2nd Circuit has had to say ‘we give up’ — this person has exhausted their remedies because they just waited too long.” The second thing, he said, is that the state judges do not explain in writing “why they did what they did.” And when federal district and appellate courts do not have a clear sense of the grounds on which an appeal was rejected, it is easier for the petitioner to litigate the issue of whether an issue has already been adjudicated — a perfect example of the type of endless cycle that led Congress to enact the AEDPA in the first place. “The statute is premised on the idea that the same claims have been previously adjudicated by the state courts,” Professor Freedman said. “But it’s very hard to call a summary order at the appellate division an adjudication on the merits when there are a dozen things argued to them. Courts reviewing a habeas petition have to ask ‘Is that procedural or is that on the merits?’” One factor that may limit federal review of New York state death penalty convictions is the relatively small number of cases where prosecutors seek capital punishment when compared with other jurisdictions. Professor Blume said New York “seems to put more resources into the front end.” An insistence on appointment of qualified counsel may result in a larger number of cases being resolved by a negotiated plea, he said. The end result may be that fewer New York cases will make it to the level of habeas review. Professors Freedman and Liebman both caution that it is too early to tell what impact the AEDPA will have on New York cases. Both say it is clear the federal district courts and the 2nd Circuit are forced to wrestle with some of the same issues that have bedeviled other circuits. Particularly frustrating lines of cases in the courts of the 2nd Circuit have concerned the retroactivity of the act and the circumstances under which the one-year statute of limitations is tolled. Based on anecdotal evidence following the passage of the AEDPA, some experts feel that its primary effect has been to limit the number of habeas cases reviewed by the circuit courts of appeal. The circuits are still wrestling with the issue of when to even hear an appeal, and what Freedman calls the “extremely elaborate ritual” of obtaining a certificate of appealability from the federal district judge who has denied the petition for habeas corpus. “If the district court does not grant a certificate of appealability, you can still apply for one from the court of appeals, and that is often where the true contest occurs,” he said. “Under the statute, there are a whole slew of requirements — you essentially have to make a strong showing on the merits to have the appeal heard.” As for overall effect of the AEDPA, Liebman said the impact is hard to sort out. “The 1996 act was designed to lead to less relief in habeas cases generally and particularly in capital cases, but that looks like it’s happening in some places but not in others,” Liebman said. “In some studies of habeas cases the sense has been that the AEDPA did not change things nearly as much as expected.”

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