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The New York Court of Appeals on Tuesday overturned the first death sentence imposed under the 1995 law, but upheld key portions of the statute in an opinion that removes Darrel K. Harris from death row while simultaneously rejecting several fundamental challenges to the law. In a lengthy opinion by Judge Richard C. Wesley, all seven judges agreed that the sentence imposed on Harris cannot stand because it was rooted in a statutory scheme, later stricken by the court, that unconstitutionally burdened the defendant’s Fifth and Sixth Amendment rights. The sole dissenter, Judge George Bundy Smith, parted with the majority on several matters of alleged trial error and would have reversed the first-degree murder conviction, but joined the court on all major statutory issues. The court: � Affirmed Harris’ conviction but vacated his sentence under Hynes v. Tomei, 92 NY2d 613 (1998), where the court struck the plea bargaining provisions of the death penalty statute. The court said Tuesday that Harris, by exercising his Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial, placed himself in jeopardy of a death sentence, a risk he could have avoided by foregoing his Constitutional rights and pleading guilty. � Held that a death-qualified jury is not inherently pro-prosecution or conviction-prone. � Rejected several defense challenges to the jury qualification and selection process. � Remanded the matter for resentencing in Brooklyn, where Acting Supreme Court Justice Anne G. Feldman has two options: a sentence of life without parole, or a sentence in the range of 20-to-25-years to life. People v. Harris, 80, stemmed from Harris’ conviction for three murders committed in 1996, a year after Gov. George E. Pataki fulfilled a campaign promise and brought capital punishment back to New York. The facts of the case were generally not in dispute. During the early morning hours of Dec. 7, 1996, Harris, then a 39-year-old decorated former corrections officer with no prior criminal record, exploded in an uncharacteristic rampage and executed three people at Club Happiness in the Bedford-Stuyvesant section of Brooklyn. Proof at trial showed that Harris forced his victims to lie face down on the floor while he fired bullets through the heads of Jerome Sims, the manager, and Michael Harris (no relation), killing both. Eddie Brown, also shot by Harris, managed to survive with grievous injuries. Evelyn Davis ran while Harris pursued. After firing at Davis and missing, Harris chased the woman down and stabbed her to death as she begged for mercy on behalf of her “five babies.” Harris never denied the murders and based his defense on extreme emotional disturbance. The defense argued that Harris snapped under extraordinary pressure and a combination of factors — post-traumatic stress ignited by a 1986 prison riot where he saved a co-worker’s life, repressed rage at an abusive mother, substance abuse, and the loss of his job as a security officer two days earlier. Prosecutors depicted the defendant as a callous predator who sought to eliminate witnesses to his attempted robbery at Club Happiness. The jury seated before Acting Brooklyn Justice Anne G. Feldman convicted Harris of first-degree murder and agreed unanimously that death by lethal injection, rather than life without parole, was the suitable punishment. ‘HYNES V. TOMEI’ On appeal, the Capital Defender raised dozens of issues, many of them going to the heart of the 1995 statute. During an extraordinary day of oral arguments on May 6, the court entertained oral arguments from: First Deputy Capital Defender Susan H. Salomon and Deputy Capital Defenders Barbara Zolot and Laura S. Kelly for Harris; Special Assistant District Attorney Jonathan L. Frank of Skadden, Arps, Slate, Meagher & Flom and Assistant District Attorney Keith Dolan for the Kings County prosecutor; and Deputy Attorney General Peter B. Pope as intervenor for the state. It was clear the court was looking primarily in one direction: toward Hynes v. Tomei. (See related article: The Test of New York’s Death Penalty.) In that 1998 case, the court struck as unconstitutional the plea bargaining provisions of the statute. The Hynes decision said those provisions, which required pleas while notice to seek the death penalty was pending, violated the U.S. Supreme Court’s 1968 ruling in U.S. v. Jackson, 390 U.S. 570. The Jackson court overturned eight death sentences, holding that the defendants’ rights were unconstitutionally burdened because they risked execution only by exercising their right to a jury trial. New York’s statute, the Court of Appeals concluded, suffered a similar infirmity. In Hynes, it reversed the Appellate Division, 2nd Department, and voided the plea bargaining provisions while leaving the remainder of the statute unscathed. Harris was condemned to death six months before the Court of Appeals decided Hynes. The prosecution and the attorney general agreed the court could not uphold Harris’ sentence without, at least, modifying Hynes, but neither offered any new basis for doing so. Lacking any reason to overturn or modify its precedent, Tuesday’s result was inevitable, the court suggested. “All seven of us have concluded that there is no reason to retreat from Hynes; all of us agree that the statute at the time of defendant’s trial impermissibly discouraged defendant’s assertion of his Fifth and Sixth Amendment rights. Accordingly, the trial court could not constitutionally impose the sentence of death on this defendant,” Judge Wesley wrote. JURY SELECTION Additionally, the court disposed of several other issues that could have undermined the statute, including a number of substantive challenges to the jury selection process. For example, the defense claimed that a death-qualified jury is inherently biased and cited several studies supporting that contention. The court, relying primarily on the Supreme Court’s 1986 holding in Lockhart v. McCree, 476 US 162, categorically rejected that argument, describing as “totally unpersuasive in this case” the claim that the Harris jury could have been pre-conditioned. Significantly, the court found the state constitutional protections no broader than those provided under the federal constitution. Similarly, the court said the New York standard for excluding a juror for cause is the same as the federal, not higher. Under federal law, a juror must be dismissed from a capital case if his or her views on the death penalty are so strong as to “impair” his or her duties. New York’s death penalty statute excludes members of the venire whose views for or against capital punishment would “preclude” them from carrying out their oath. Tuesday, the court said New York’s standard for juror disqualification, despite different language, mirrors the federal government’s. “Where jurors express conscientious views concerning the death penalty yet still make clear that they are able to follow their oaths and act impartially, they cannot be excluded for cause from participating on a jury,” Wesley wrote. Further, the court rejected the defense argument that Justice Feldman’s description of the life/death qualification process enabled agenda-driven jurors to tailor their voir dire responses to escape, or ensure, disqualification. Also, the defense challenged the felony murder provision of the statute as “irrational” since some lower-level felonies (like a simple robbery) can trigger a first-degree murder charge while some higher ones (such as first-degree conspiracy and grand larceny) cannot. The court said lawmakers made a rational determination to include as predicate felonies for first-degree felony murder those offenses carrying the greatest risk of physical injury. “The decision to authorize capital punishment for classes of crimes is one best left to the Legislature unless clearly wrong,” Wesley wrote. “We recognize that the Legislature can determine among the sins of society those that require a criminal sanction, and prescribe the appropriate punishment,” Judge Wesley wrote. MAJORITY AND DISSENT Judge Wesley is a Republican from Western New York who is widely considered the most conservative judge on the court in criminal justice matters. As a member of the state Assembly in the 1980s, he repeatedly voted in favor of death penalty bills. The irony of a pro death penalty judge appointed by a pro death penalty governor writing the first decision striking down a death sentence was obvious to political and legal observers. The dissent from Judge Smith was predictable. A Democrat from Harlem and the only black judge on the court, Smith is generally viewed as the panel’s most liberal in criminal cases and is also the judge most inclined to dissent. What was not predictable, however, was that Smith would agree with his colleagues on virtually all of the broad death penalty issues while dissenting primarily on fact-specific quirks in the Harris case. However, Smith’s dissent argues that a capital prosecution requires a heightened degree or reliability at every stage, not just the sentencing phase, and that could set the stage for further battles in the future, analysts said. “The need for heightened reliability should not be limited to the sentencing phase,” Judge Smith argued. “The fact that death is different requires that those who face the risk of death generally be provided with greater rights than those who do not.” In that context, Smith said several trial errors mandate reversal of the conviction: Justice Feldman’s refusal to allow psychiatric rebuttal testimony; Feldman’s refusal to dismiss for cause a juror who could not accept the notion that abuse as a child could affect the behavior of an adult; the prosecution’s summary reference to Harris smiling and smirking during the trial; and testimony about the victims’ personal backgrounds. The majority agreed it was error to allow testimony about the victims’ backgrounds and for the prosecutor to deride the defendant’s facial expressions, but said the errors were harmless. All told, the judges wrote 89 pages, 43 in the majority opinion and 46 in the dissent. Oddly, both the majority and dissent spent relatively little time discussing the dispositive issue — Hynes v. Tomei. Analysts said Tuesday that the ruling would imperil any pre- Hynes death penalty case. However, it is not clear what constitutes pre- Hynes. Although the five remaining residents of death row at Clinton Correctional Facility were sentenced after Hynes v. Tomei, the prosecution of Angel Matteo overlapped the decision. Matteo was convicted of first-degree murder on Dec. 3, 1998, and the jury voted for a death sentence on Dec. 16, 1998. Hynes v. Tomei was decided on Dec. 22, 1998, but the formal sentencing did not occur until Jan. 15, 1999. The impact of Tuesday’s ruling on Matteo’s sentence remains to be determined. In general, death penalty supporters were pleased with Tuesday’s decision while opponents were somewhat discouraged. “We are disappointed that the conviction was affirmed, but we are tremendously relieved that Darrel Harris no longer lives under a sentence of execution,” said Salomon, lead counsel for the defense. Salomon said the relatively narrow ruling “reflects the case-specific, consensus-building approach that distinguishes our Court of Appeals and the Court only reached those issues it felt duty-bound to reach.” She predicted, however, that “every capital lawyer, capital prosecutor and capital trial judge will be studying this opinion for weeks to come for the guidance it offers on a variety of issues.” Michael McKeon, spokesman for Pataki, said the administration is pleased with the decision even though the death sentence in this case was overturned. “On the unique facts of this case, and given the fact it was tried before Hynes v. Tomei, the ruling was not surprising,” McKeon said. “We are pleased that the Court carefully and correctly rejected every challenge to the constitutionality of the death penalty statute … . We are not declaring outright victory, but we are obviously encouraged.” The court’s ruling comes at a time when momentum for capital punishment, both politically and judicially, seems to be waning. Last month, the U.S. Supreme Court held for the first time that it is unconstitutional to execute retarded people ( Atkins v. Virginia) and that juries, not judges, must decide if death is an appropriate penalty ( Ring v. Arizona). Last week, U.S. District Judge Jed S. Rakoff of Manhattan found the federal death penalty unconstitutional. Two governors, George Ryan of Illinois, and Parris Glendening of Maryland, have declared moratoriums. In addition, a recent Gallup poll showed that support for the death penalty has slipped considerably over the last two decades. Other polls suggest that death penalty support dips considerably when respondents are offered an alternative sentence of life without parole. New York’s statute is not affected by either U.S. Supreme Court ruling, since it already bans execution of the mentally retarded and defers to juries decisions on whether the death penalty should be imposed. In addition, Rakoff’s decision addresses only the federal statute, and many observers question whether his due process findings could be applied to the New York law. Regardless, with Tuesday’s ruling, it appears that the first execution under the 1995 law is far off, if that day ever comes. In deciding only a handful of the 88 issues and sub-issues raised in the Harris appeal, the court left for another day the myriad other issues raised in the Harris appeal. “We need not reach defendant’s contention that New York’s capital punishment statute permits district attorneys to select capital defendants arbitrarily, inconsistently and discriminatorily,” Judge Wesley wrote in a footnote. Still undecided are: whether the death penalty itself is a per se violation of the New York state Constitution; whether the statute allows and even encourages judge shopping (although the court did, in a footnote, “reject as without merit” the allegation that the selection of Justice Feldman in this matter resulted from prosecutorial judge shopping); whether geographic and racial disparities result in such an arbitrary application that the law cannot be applied equally; whether local prosecutorial discretion introduces an impermissibly arbitrary element; and a host of other issues that will almost certainly be confronted later.

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