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Brooklyn District Attorney Charles J. Hynes has decided not to seek an appeal to the U.S. Supreme Court of the New York Court of Appeals decision that overturned the first death verdict imposed under the state’s 1995 law. The decision not to challenge the federal jurisprudence that underlay the reversal won by Darrel K. Harris strengthens the legal position of two of the remaining defendants on the state’s death row, and may provide some support for the other three, according to several death penalty experts. Harris had been sentenced to death for slaying three people in a Brooklyn social club. The Court of Appeals in July threw out Harris’ death sentence because it said he was unfairly tried under a coercive scheme in which a defendant faces capital punishment only if he asserts his constitutional right to a jury trial, and not if he pleads guilty. Harris was sentenced to life without parole on Aug. 29. Hynes said on Monday, the last day on which he could have pursued an appeal, that he had decided not to do so because it “would likely not change the result, would not permit closure and would be very costly.” Hynes, through a spokesman, declined to comment about what impact the decision would have upon the appeals of the state’s remaining five death row inmates. But several death penalty experts said that the cases of two of those inmates were in a legal posture nearly identical to Harris’ in that both of their trials started before the Court of Appeals handed down the ruling upon which it based Harris’ reversal. The court based its Harris decision on its December 1998 ruling in Hynes v. Tomei, 92 NY2d 613, which found that the plea provisions of the 1995 death penalty statute were unconstitutional. Hynes v. Tomei was predicated upon the U.S. Supreme Court’s 1968 ruling in U.S. v. Jackson, 390 U.S. 570. In People v. Harris, the court relied solely on the U.S. Supreme Court’s application of its Jackson ruling to void the death sentences of inmates who had gone to trial under a plea scheme that was later found unconstitutional. The federal constitutional infirmity in the plea scheme identified in Jackson was that it was coercive to require defendants to face the death penalty only if they went to trial, and to let them avoid it if they pleaded guilty. Such a scheme, the Supreme Court concluded, burdened defendants’ exercise of their constitutional right to a jury trial. In overturning Harris’ death sentence, the Court of Appeals held that his constitutional rights had been compromised because he had gone to trial under the plea scheme that had been declared unconstitutional in Hynes v. Tomei. Experts said that the Court of Appeals had created a rare opportunity for seeking review of the U.S. Supreme Court’s ruling in Jackson because the New York court decided Harris solely on federal grounds. Most state death cases are reversed on an amalgam of grounds, often including trial errors on state grounds, and the U.S. Supreme Court will not review a case containing an “independent state ground” for reversal, they explained. Harris had been sentenced to death by a Brooklyn jury on June 6, 1998, and formally sentenced by Justice Anne G. Feldman on July 21, 1998, about five months before the Hynes v. Tomei ruling. Similarly, two of the remaining death row inmates — Angel Mateo and Robert Shulman — started their trials but did not complete them before Hynes v. Tomei. On Dec. 16, 1998, six days before the Hynes decision, a Rochester, N.Y., jury sentenced Mateo to death for an execution-style killing. Monroe County Judge John J. Connell, however, did not formally impose the death penalty until about three weeks later, on Jan. 15, 1999. The trial of Shulman, who was sentenced to death for killing and dismembering three women, got under way on June 15, 1998, about six months before Hynes v. Tomei. However, the jury did not find him guilty until March 1, 1999. The trial of the three other death row inmates all began after Hynes v. Tomei. The trial of Stephen LaValle, who was sentenced to death for the rape and murder of a schoolteacher, began on Feb. 16, 1999. James Cahill’s trial started on May 26, 1999, and Nicholson McCoy’s trial began in March 2000. Cahill was sentenced to death by a Syracuse jury for the murder of his wife, and McCoy was sentenced to death by a Suffolk County, N.Y., jury for killing a co-worker. It is “obvious” that Hynes v. Tomei should be applied to overturn a verdict where the possibility of a plea under a constitutional statute vanished because the trial had already begun, said Hofstra Law School Professor Eric M. Freedman, a death penalty expert. While no “bright line” rule would apply in cases where the trial began after Hynes v. Tomei was decided, Freedman said, each case needs to be examined to determine whether enough time had lapsed between when the Hynes ruling was issued and the start of a trial for a capital defendant to have had a meaningful opportunity to plead guilty under a constitutional scheme. “There is a long-term dynamic in reaching a plea in a capital case,” he observed. Paul Shechtman, who was New York Gov. George E. Pataki’s criminal justice director at the time the 1995 capital statute was implemented, agreed that any death sentence imposed in a case that went to trial before the date Hynes was decided would be imperiled. It is “highly likely” that any death row inmate whose case went to trial before Dec. 22, 1998, will get the benefit of Hynes v. Tomei, said Shechtman, who is now a defense lawyer at New York’s Stillman & Friedman. As for those whose trial started after that date, he noted, their claims are more attenuated, but it is “still an open issue how the Court of Appeals will decide them.” Shechtman noted, however, that even if any of the five men on death row wins a reversal of their sentence because of Hynes v. Tomei, it is possible that, unlike Harris, they will face a new trial. Because the Court of Appeals’ sole ground for reversing Harris’ conviction was its application of the federal rule in U.S. v. Jackson, it instructed that he be resentenced to prison with a maximum term of life without parole. It is doubtful, Shechtman offered, that the Court of Appeals would again reverse a death conviction solely on the federal constitutional ground without finding any error on state grounds in the way a trial was conducted. If the court were to find trial error, he added, its remedy would be to order a new trial. At the new trial, Shechtman explained, the Hynes v. Tomei defense would not be available because the second time around the defendant would have had an adequate opportunity to plead guilty under a statute that had been “cleansed” of the constitutional defect.

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