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Today the New York Court of Appeals will hear a daylong argument in the second case brought by a defendant sentenced to death under New York’s 1995 statute re-instating the death penalty. Like the first case argued in May 2002, the second presents an unsympathetic set of facts. James F. Cahill, 43, acknowledged savagely beating his wife with a baseball bat in April 1998 two weeks after the couple had signed a separation agreement. Six months later, just as his wife, Jill, was emerging from a coma after 15 operations, Mr. Cahill conceded at trial, he entered her hospital room and poisoned her with cyanide. She died on Oct. 28, 1998. While the Court will not be writing on a clean slate in People v. Cahill, the field is wide open. In its first case, People v. Harris, the court vacated the death sentence given to Darrel K. Harris for murdering three people in a Brooklyn social club. The court ruled on a narrow ground, applying its 1998 decision that voided the plea provisions of the capital statute as chilling defendants’ exercise of their right to a jury trial. In Harris, the court resolved some broad issues. For instance, it concluded that the New York statute provides for the disqualification from the guilt phase of a case jurors who claim they cannot conscientiously impose the death penalty. Nonetheless, a great many constitutional, statutory and practice issues surrounding the statute remain to be resolved. Several prosecutors in different counties have expressed hope in interviews that the court will use Cahill to address some of the weightier issues surrounding the 1995 law to give them greater guidance on how to present future capital cases. Cahill presents the court with dozens of issues. The table of contents to the 802-page brief prepared by Mr. Cahill’s lawyers at the Capital Defender Office (CDO) runs 20 pages. The Onondaga County district attorney’s office has filed a 672-page responsive brief, and the CDO replied with another 259-page brief. The state attorney general’s office has filed an 89-page brief defending the constitutionality of the statute. Two amicus briefs have been filed, one by the New York Civil Liberties Union and the other by former Court of Appeals Judge Stuart F. Hancock and a group of former judges, prosecutors, law professors and practitioners urging the Court to strike the statute as unconstitutional. The issues before the court run the gamut from the broad constitutional issues aimed at the statute in its entirety, to those that would void specific provisions and the applicability of rules unique to capital cases. The CDO, for instance, devotes 100 pages of its brief to challenges to the selection of the jury for the two stages of the trial, guilt and sentence. And lastly, the CDO raises a series of practice issues, including a claim that Onondaga District Attorney William P. Fitzpatrick improperly inflamed the jury in his closing statements, which would yield case-specific rulings if adopted by the court. While it is anyone’s guess which issues will grab the court’s attention, the case does present the panel with an opportunity to reveal whether it will take a strict or liberal view of what constitutes a capital crime. Unlike Harris’ crime, which involved multiple homicides and on its face met one of the statute’s 12 criteria for capital treatment, the question of whether Cahill’s crime qualifies for capital punishment is more open to debate — and the parties’ briefs on the point are spirited. The debate revolves around the two capital theories asserted by the prosecution. Can Cahill be prosecuted for a capital crime because he killed his wife to eliminate her as a witness to the assault with a baseball bat that was pending against him at the time of her murder. Similarly, could a case for the death penalty proceed because, in addition to the killing, Cahill had committed a burglary by entering his wife’s hospital room with the intent to kill her. The case also showcases a constitutional issue that could impact the five defendants on death row and the four pending capital trials. At issue is the defense claim that New York’s jury instruction about the effect of a deadlock over sentencing invites jurors to consider factors extraneous to the trial record. At the sentencing phase, the jury weighs evidence to determine whether to sentence the defendant to death or life without parole. New York’s law is unique in requiring the sentencing judge to instruct the jury that in the event of a deadlock, the court will sentence the defendant to a term that could potentially lead to parole after 20 years. All three issues — the two testing the definition of a capital crime and the third aimed at the deadlock provision — are among the 10 that the lead Capital Defender attorney, Ann M. Parrent, has advised the Court she and her colleagues will address during oral argument. The other two CDO attorneys representing Cahill are Sean J. Bolser and Susan H. Salomon, head of appeals for the office. Arguing for the prosecution will be Onondaga Special Assistant District Attorney Gary T. Kelder, Chief Assistant District Attorney James P. Maxwell and Assistant District Attorney Victoria M. White. In addition, Deputy Attorney General Peter B. Pope will defend the constitutionality of the statute. The court has set aside 5 1/2 hours for the argument, even longer than the four hours and 15 minutes it scheduled in the Harris case, which ran longer than planned. 50 DEATH CASES Today’s argument comes slightly more than eight years after the state reinstituted the death penalty effective Sept. 1, 1995. Since then, prosecutors have sought it against 50 people, all but two of them men. Slightly more than half the cases, 26, had minority defendants. Of the 50 cases in which death notices were issued, 18 have gone to trial. Seven resulted in death sentences; nine in sentences of life without parole; one in a minimum sentence of 115 years after a jury deadlock, and one in a minimum sentence of 65 years where the jury acquitted on the capital count but found the defendant guilty of second- degree murder. Of the seven defendants sentenced to die, five in addition to Cahill remain on death row. Harris was sentenced to life without parole after the Court of Appeals overturned his sentence. Arguments have been scheduled in two other death penalty appeals. Oral arguments in the case of Angel Mateo, who was sentenced to death by a Rochester, N.Y., jury for the execution-style slaying of a 20-year-old man are scheduled for Nov. 24. And on Feb. 23, 2004, the court will hear the appeal of Stephen LaValle, who was sentenced to death by a Suffolk County jury for the 1997 rape and murder of a high school teacher near her home in Yaphank, N.Y. DEADLOCK PROVISION The CDO has highlighted a single provision of a 1995 statute for constitutional attack: the statutory requirement that the judge tell the jury before it starts to deliberate over sentencing that a lesser sentence, with the possibility of parole, will be imposed in the event of a deadlock [Criminal Procedure Law � 400.27(10)]. The CDO is focusing the court’s attention on an issue that has gained some traction, since Justice Anne G. Feldman found it unconstitutional in the Harris case. But six other judges in capital cases have upheld the provision. By telling jurors that “a substantially more lenient sentence” will be imposed if they deadlock, CDO argues that the statute is “tempting jurors to base their decision on extraneous factors –including speculation about future parole release and the danger to the public — rather than their own judgments about the relative weights of the aggravating and mitigating factors.” Also, the CDO argues the provision injects an element of coercion into deliberations by “pressuring jurors who may be divided between life without parole and death to reach a unanimous decision, just to avoid the parole-eligible default sentence the court must impose if they remain deadlocked.” The prosecution, in response, candidly notes that the majority of capital punishment states that have addressed the issue have “either barred or discouraged the practice of informing penalty-phase jurors of the consequences of a sentence deadlock.” Nonetheless, the prosecution notes, the New Jersey Supreme Court upheld the constitutionality of its deadlock provision in its 1987 decision in State v. Ramseur,106 NJ 123, which reasoned that withholding information about sentencing options from the jury “mock[s] the goals of rationality and consistency required by modern death penalty jurisprudence.” New Jersey is one of three states — the others are Missouri and Oregon — that requires that a sentencing jury be advised of the consequences of a deadlock, but in all three states a judge is only empowered to impose the most lenient sentence available to the jury. The prosecution argues that the statute confers a “substantial benefit for capital defendants” by creating a “third way” to conclude deliberations through deadlock. In fact, the prosecution points out, Cahill’s trial counsel asked that the trial judge, William J. Burke, tell the jury that a deadlock was a “‘legitimate third sentencing option’” and to “‘accept jury’s first deadlock note as its verdict.’” The prosecution also pointed out that the jury only deliberated for five hours over two days before voting for the death penalty and was “never only remotely close to deadlock.” A WITNESS MURDER? Conversely, the question of whether Cahill murdered his wife because he wanted to eliminate her as witness is a hotly contested issue. The CDO brief strenuously argues that Cahill killed his wife because of the “powerful emotions resulting from the breakup of his marriage and the likely loss of his children,” not to eliminate her as a witness. Also the CDO contends there was little likelihood that Jill Cahill would, or could, testify in the assault case or that Mr. Cahill believed she would testify. CDO contends that the phrase, “for the purpose of” in the statute, Penal Law � 125.27(1)(a)(v), required that a slaying be for the sole purpose of eliminating a witness. The prosecution in response, chides the defense for asserting that the phrase “for the purpose of” can be used to read a “super intent” requirement into the statute. The phrase, the prosecution notes, is “not new” to New York law, and has often been interpreted to cover one among several motives. Moreover, the prosecution argues that a “timeline” showing the interplay between various legal proceedings against Cahill and the Oct. 27, 1998 poisoning show that one of his purposes, “if not his predominate purpose,” was to eliminate her as a witness. BURGLARY ISSUE The CDO brief attacks the prosecution’s effort to use a burglary theory to make the killing of his wife a capital crime. The burglary theory — that Cahill snuck into the hospital for the purpose or killing his wife — involved a circularity of reasoning, the brief asserted, that leaves no rationale for distinguishing which murders warrant the death penalty and which do not. The California Supreme Court has rejected the notion that the purpose of the burglary and the purpose of the felony can be one and the same, the brief pointed out. The California Supreme Court in People v. Green, 609 P.2d 468 (1980), the brief noted, required an “independent felonious purpose” for the enhancing crime. Only by requiring separate motives for murder and the enhancing crime, CDO contended, can the statute provide a “principled basis” for designating capital crimes — a test that lies at the heart of Eighth Amendment jurisprudence. The prosecution counters that the Court of Appeals in a non-capital context took the opposite approach in its 1973 ruling in People v. Miller, 32 NY2d 157. In Miller, the court ruled that a burglary committed by entering a premises with the intent to commit an assault could serve as the predicate for a felony murder charge. The court reached that result even though assault was not one of the predicate crimes for felony murder, but burglary was. The prosecution contended that the New York Legislature made a valid assessment that an assault committed in a dwelling raises a greater peril because a victim is “more likely to resist the assault, less likely to have the means to escape, and there is a greater possibility that friends and family members will attempt to aid the victim and be killed as well.” The same reasons justify raising a murder committed during a burglary to a capital crime, even though there is no independent motive for the two crimes, the prosecution argued.

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