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The mantra of death penalty proponents is that a wrongful execution has not happened and could not happen in New York. Jack Casey knows better. Casey, an attorney by intellect, political operative by gut and author by soul, spent years researching the troubling 1894 case of Bartholomew Shea, and came to the inescapable opinion that Shea almost certainly did not commit the murder for which he was electrocuted. And that is the conclusion of a lifelong Republican who supports capital punishment, works for the legislative body that brought it back to New York, was peripherally involved in negotiations over the 1995 statute and happens to be the son of a now retired law-and-order Appellate Division justice. “I am a Republican, and while I don’t know that the death penalty is a deterrent, I do think in some way, shape or form it does serve a purpose, an important purpose,” said Casey, associate counsel for the Senate Republican majority and parliamentarian in the upper house. “It is a very complex legal, political and, more importantly, ethical issue. There are certain predators who cannot and will not ever stop killing. They are just born to kill and will do so until they no longer exist. But in the Shea case, it was used for political purposes.” “The Trial of Bat Shea” (1994, Diamond Rock Publishing Co.) is a fact-based novel, the compelling tale of pistol politics and ethnic chicanery in hardscrabble 19th century Troy. Bartholomew “Bat” Shea was riffraff who belonged to a gang of Irish Catholic Democrats which controlled virtually everything in the industrial city. It proudly modeled its regime on Boss Tweed’s ring in New York City. In 1894, a reform coalition of Protestant Republicans was intent on holding a clean election, which at that time and in that place was a fairly novel and revolutionary concept, the logic of which was foreign to Shea and his pals. Shea stole the ballot box at gunpoint during a nominating convention, and returned it stuffed with votes for the machine candidate. At the general election, Robert Ross and his three brothers were among the poll watchers when Shea and his allies attempted to vote in a district where they were not registered. A brawl erupted, and Ross was killed by a gunshot wound to the head. Shea was accused of the crime. The case became a cause celebre for a lawyer named Frank S. Black, a self-appointed pulpit pounder who ordained a blue ribbon organization to promote truth and justice in the Rensselaer County criminal justice system. Black, although he had no official role, participated in the coroner’s inquest and was allowed in the grand jury room when Shea was indicted. He also helped select grand jurors, and excluded those who were obviously Irish Catholics. At Shea’s trial, both the prosecution and defense objected to Black’s persistent and nagging presence beyond the bar, but the trial judge allowed him to remain. Shea was convicted and sentenced to death. Black exploited the publicity he garnered through the Bat Shea matter to mount a successful campaign to the Governor’s Mansion. Gov. Black served briefly, until Teddy Roosevelt returned a hero from San Juan Hill and the GOP bypassed the former in favor of the latter. While Shea was on death row his best friend, a burglar named Jack McGough, confessed to the murder. McGough, who was involved in the brawl and wounded at least one of the Ross brothers, had previously testified that Robert Ross was inadvertently shot by one of his own cronies, a claim unsupported by the evidence. But later, McGough changed his story, and his newest version seemingly resolved many ambiguities that remained after Shea’s conviction. For instance, Ross was killed with a .38-caliber bullet, although all the evidence showed that Shea had a .32-caliber weapon. McGough had the .38. Twenty-one witnesses said they saw a man with a green tie shoot Ross. Shea was not wearing a green tie. McGough was. After the shooting, more than a dozen men chased the then unidentified culprit into an alley, where he suddenly disappeared. McGough lived in that alley and quite possibly escaped to the sanctity of his own home. Despite the new perspective, Shea’s conviction was upheld since McGough’s confession was merely “cumulative.” McGough said at trial that Shea did not shoot Ross, and also said in the confession that Shea did not shoot Ross. To the Court of Appeals, it was the same difference. In People v. Shea, 147 NY 78,1895, the Court — righteously indignant over the evils of ballot fraud, but not overly concerned with the murder and death sentence — found it “wholly immaterial to [Shea's] defense by whom the firing was done.” With no federal habeas corpus review in those days, that was that. On Feb. 11, 1896, Shea was electrocuted at Dannemora. Casey was working on a project for a Troy newspaper in the mid 1970s when he was called by a man who was liquidating estates and had come upon an old trunk full of clippings about the Shea case. Casey, whose own Irish Catholic roots are in Troy, N.Y., began poring through public records and transcripts. The more he scratched the more he itched, and vice versa. “On one side, you’ve got the Irish abusing the franchise by stuffing the ballot box to get political power, and that creates the tragedy of Robert Ross’ death,” Casey said. “On the other side, you’ve got the Republican Protestants taking it upon themselves to tamper with and tinker with the criminal justice system, and that produced the wrongful execution of Bat Shea.” Casey carried his interest in Bat Shea through law school — he enrolled in Albany Law School in 1984 — and continued to ponder the case when he clerked in the Appellate Division, 3rd Department, where his father, John T. Casey Sr., was an associate justice. “It is an amazing story,” Casey said. “We’ve got immigrant groups coming to America now and there are an awful lot of similar themes. I think there is resident bigotry that is difficult to identify� and that is why it is so important that competent attorneys and defense counsel are there to ensure this doesn’t happen again. It was a complete miscarriage of justice.” By the early 1990s, when Casey was in private practice and active in Republican politics — the party of Frank Black — how’s that for weird? — he decided to write a book about Bat Shea. It was his third book, after “Lilly of the Mohawks,” a 1984 book about a martyred Mohawk woman named Kateri Tekakwitha, and “A Land Beyond the River.” The second book, published in 1988, details the DeWitt Clinton-Martin Van Buren battle over construction of the Erie Canal. “The [Shea] case is pervaded with moral dilemmas, which is what I loved about it,” Casey said. “As an author, you really want to see your characters struggling with moral dilemmas and trying to figure out how to do the right thing, what the consequences are going to be and how they are going to live with it afterwards.” Coincidentally, just months after “The Trial of Bat Shea” came out, Casey had his own moral dilemma. In early 1995, shortly after Gov. Pataki took office on a promise of restoring capital punishment, Casey was associate counsel for the Assembly Republican minority while the death penalty bill was negotiated, drafted and enacted. Casey supported and supports that legislation, although he is keenly aware from his Bat Shea research that injustices can occur. Still, he said, the latest version of the death penalty contains so many safeguards that a repeat of the Bat Shea tragedy is highly unlikely. “I don’t think Bartholomew Shea would be executed today,” Casey said. Casey, who maintains a private appellate practice in addition to his legislative work, said the statute is extremely complicated and declined to venture a guess as to whether it will entirely survive scrutiny by the Court of Appeals. The current court, which heard its first modern death penalty case on Monday, is a far cry different from the one that rather academically signed off on Shea’s execution. “As an appellate attorney, I know there are many, many, many areas where appellate issues can surface and it is a very complex statute, and I don’t think a lot of the bugs have been worked out yet,” Casey said. It is just that sort of evolution that maintains Casey’s hydra-headed interest in law, literature and politics. “They are always evolving.” Casey said. “You see rules evolving to meet different circumstances, and I think literature has to do the same. I don’t think you can stay with an aesthetic of William Faulkner or James Joyce. You’ve got to move forward, although I seem to be firmly anchored in the real world at this point in time.”

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