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By reversing the first death sentence under New York’s 1995 law to come before it on solely federal grounds, the New York Court of Appeals left Brooklyn prosecutors with a shot at taking the case to the U.S. Supreme Court. Had the state’s highest court overturned the death sentence of Darrel K. Harris for slaying three persons in a Brooklyn social club on any of the dozens of trial errors claimed by the defense, Supreme Court review would have been precluded, several defense experts and prosecutors said Tuesday. Instead, they said the reversal was ultimately entirely contingent upon a purely federal issue, first articulated by the U.S. Supreme Court in 1968. In the interest of judicial economy, they explained, the Supreme Court will refuse to review any criminal case in which its ruling on a federal point of law would not affect the outcome, because an “independent state ground” supports the state court ruling. Jerry Schmetterer, a spokesman for the Brooklyn district attorney’s office, said that question of whether to try to take the case to Supreme Court is “under review.” The sole basis for the reversal of Harris’ death sentence in the decision written by Judge Richard C. Wesley was that he had gone to trial and been sentenced to die by lethal injection on June 6, 1998, under a statutory plea scheme that the Court of Appeals struck down six months later. In its earlier decision, Hynes v. Tomei, 92 NY2d 613, the Court of Appeals ruled that the plea provision in New York’s 1995 capital punishment statute suffered from the same defect that the U.S. Supreme Court found in the federal kidnapping statute at issue in its 1968 ruling in U.S. v. Jackson, 390 U.S. 570: in both statutes a defendant who pled guilty would escape the death penalty, but those who went to trial still risked death. In a series of seven cases decided in the wake of Jackson, the U.S. Supreme Court overturned the death sentences of prisoners who had gone to trial under plea schemes that impermissibly burdened their rights to avoid self-incrimination and to a jury trial by reserving possible death sentences only for those who refused to plead guilty. Harris’ lawyers from the Capital Defender’s Office argued that he was in the precise same position as the seven prisoners whose death sentences the U.S. Supreme Court had overturned upon the strength of the Jackson ruling, and Tuesday the Court of Appeals agreed. OTHER CASES IMPACTED? Defense lawyers also said that three of the remaining five defendants on the state’s death row might claim to benefit from Tuesday’s ruling in the Harris case. Angel Matteo was sentenced to die by a Rochester jury for an execution-style killing only two weeks after the Court of Appeals ruling in Hynes. Robert Shulman, who was sentenced to die for murdering three women, began his trial about two months before the Court of Appeals decided the Hynes case, though he was not sentenced to die by a Suffolk County jury until about six months later. Also, a defense lawyer noted, James Cahill, who was sentenced to death for killing his wife, was indicted in Onondaga County prior to the Hynes ruling, though his trial did not begin until later. Sean M. Byrne, the head of the New York Prosecutors Training Institute, however, said any defendants who had an opportunity to plead guilty under a statute which had been cleansed by the Court of Appeals ruling in Hynes, could not claim any solace from Tuesday’s ruling. Defendants plead guilty “all the time” after their trials have started, he said. Prosecution experts said there was a good chance the U.S. Supreme Court would likely reach a different result if it accepts the Harris case than it did in Jackson 34 years ago. “It is very possible that the Supreme Court would reverse the New York Court of Appeals by declaring the Jackson rationale inapplicable to New York’s death penalty scheme,” said Byrne. The Supreme Court is now operating in “a very different universe” than it was in 1968, when it had not yet even “officially recognized plea bargaining,” he explained. Death statutes in those days, he added, had mandatory sentences and required only a single trial. Now states are required to provide juries with guided discretion, and many states, like New York, divide capital cases into two trials before the same jury, one trial for a determination on guilt and a second on sentencing. Experts on both sides recognized that getting the U.S. Supreme Court to grant a writ of certiorari is always a long shot. And some defense lawyers pointed out that the Supreme Court refused to review the Court of Appeals’ underlying ruling in Hynes v. Tomei. But, Byrne said the Harris case would come to the Supreme Court in a “better posture” because the question of guilt or innocence had not been decided in the earlier case. Jonathan Frank, a senior associate at New York’s Skadden, Arps, Slate, Meagher & Flom and one of the lawyers who argued the case for the prosecution, agreed the Harris case is “more compelling” than the Hynes case because the Court of Appeals has now “actually set aside a death sentence which had been imposed by a jury.” Another prosecutor, however, suggested that the Supreme Court may not be interested in revisiting its Jackson ruling because many states have accommodated their statutes to it, and there has not been a great deal of controversy over it recently. Meanwhile, Byrne said, prosecutors in New York have found several ways of accommodating the Court of Appeals’ rejection in Hynes of the statutory mechanism for accepting pleas in capital cases. The key component of the Hynes ruling was that prosecutors — and judges — could not accept pleas in capital cases if a death notice remained in place. Withdrawal of the death notice poses considerable risk for the prosecution, because once it is withdrawn it may never be reinstated, creating a risk the prosecution will be left high and dry if a capital defendant reneges on a plea deal. Several strategies have been developed to avoid that problem: in multiple murder cases, separate death notices have been issued, allowing one to remain in place if a deal falls through, or lengthy sentences are created by insisting on pleas to non-capital counts with a stacking of consecutive sentences which will remain in place even if the deal on the capital count evaporates. Also, some courts have used a procedure where the withdrawal of the death notice and the plea are entered simultaneously.

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