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An unlikely group of amici have signed on with retired Court of Appeals Judge Stewart F. Hancock Jr. in urging New York’s top court to find the death penalty unconstitutional. The 81-page amicus brief submitted by Hancock on behalf of James Cahill, who was condemned for poisoning his wife with cyanide, distills to one main argument: The death penalty is so arbitrary that it cannot possibly meet the heightened state constitutional standards traditionally embraced by the Court of Appeals. Hancock and the amici — including former judges, prosecutors, professors and practitioners — contend that the state Constitution offers protections superior to those recognized by the U.S. Supreme Court. And they insist that the judges in Albany have not only a right but a responsibility, bolstered by a proud historical heritage, to stake independent ground. “[T]he New York doctrine on state constitutionalism is not simply a recognition that under principles of federalism state courts may grant broader protection under their state Constitution,” wrote Hancock, who served on the Court of Appeals from 1986 through 1993. “In appropriate cases where individual rights are at stake, New York courts are obliged to do so.” Hancock’s brief argues that the New York death penalty violates the state’s ban on cruel and unusual punishment — even if it satisfies the less stringent protections of the U.S. Constitution — and that it cannot co-exist with either the equal protection or civil rights clauses in the state Constitution. He observes that New York was long viewed as a national leader in protecting individual rights on state constitutional grounds, and that there is no more appropriate case to stand above the Supreme Court than a capital case. “The New York Court of Appeals has not avoided its obligation of independent state constitutional analysis where individual rights are at issue,” Hancock wrote, referencing opinions and articles by Chief Judge Judith S. Kaye and one of her predecessors, Chief Judge Irving Lehman, who presided at center court from 1939 through 1945. In a recent interview, however, Hancock said he is not sure whether his former colleagues will even reach the constitutional issues he raises, since there are a number of alleged procedural errors on which the court could base reversal of the death sentence. “They found a way, obviously, to reverse in [ People v. Harris] on procedural grounds and this case raises procedural errors of one kind or another,” he said. “So, who knows whether they will get by those and get to the merits of the underlying constitutional issues.” Among the amici are former Chief Administrative Judge Richard J. Bartlett; former Southern District U.S. Judge Harold R. Tyler Jr.; former Supreme Court Justice Thomas Aloi of Syracuse; former Southern District U.S. Attorney Whitney North Seymour Jr.; former Northern District U.S. Attorney George H. Lowe; former state Sen. John R. Dunne; law professors Daan Braveman, former dean of the Syracuse University College of Law, and Norman Redlich of New York University; and Willkie Farr & Gallagher litigation partner Louis A. Craco of Manhattan. Also, former New York State Bar Association presidents Henry L. King and Henry G. Miller; Robert MacCrate, senior counsel with Sullivan & Cromwell; Debevoise & Plimpton partner Barbara Paul Robinson; and defense lawyers Gerald B. Lefcourt, Jack T. Litman and Joshua L. Dratel of Manhattan, Terence L. Kindlon of Albany, Mark J. Mahoney of Buffalo, and Emil M. Rossi, James R. McGraw, George F. Hildebrandt, James L. Sonneborn and Randi Juda Bianco of Syracuse. The amici urge the court to reject the U.S. Supreme Court’s 5-4 holding in McCleskey v. Kemp, 481 U.S. 279 (1987). In McCleskey, the Supreme Court said it is not enough to prove statistically that certain minorities are far more likely to face the death penalty, or that racial discrimination pervades the process. Rather, it said the individual condemned must show that he himself was a victim of bias, a standard critics say is virtually impossible to meet. Since writing one of the majority opinions in McCleskey, Justice Lewis F. Powell Jr. had a change of mind and has said he would now cast his vote with the other side, meaning McCleskey v. Kemp would have been decided 5-4 in favor of the defendant. Hancock and the amici essentially ask the Court of Appeals to do what the U.S. Supreme Court would have done had Powell’s conversion come a little earlier. They claim that statistics and anecdotal evidence lead to only one logical conclusion: that the death penalty in general is applied in a racially discriminatory manner, and the imposition of capital punishment in New York is a matter of geographic fortune and misfortune. Studies show that killers who commit their crimes in some counties will almost definitely face the death penalty for capital crimes, while murderers who commit a similar offense in another county almost assuredly will not. The decision on whether to seek the death penalty resides with the independent judgment of each of the 62 district attorneys. “Because of the total and unbridled discretion to make critical decisions in the death penalty process which the New York statute vests in the state’s district attorneys, defendants are subjected to extreme disparities in the risk of the death sentence depending upon where the crime is prosecuted,” according to the brief. Hancock, now an 80-year-old attorney with his grandfather’s firm, Hancock & Estabrook in Syracuse, N.Y., never had a death penalty case as a judge and he admits he never really analyzed capital punishment until after his retirement. He immersed himself in the topic initially as an academic exercise when he had his class at Syracuse University School of Law examine the statute. That led to an article in the Albany Law Review, “Race, Unbridled Discretion and the State Constitutionality of New York’s Death Penalty Statute — Two Questions,” by Hancock, Annelle McCullough and Alycia A. Farley (59 Albany Law Review 1545, 1996). The article prompted Kindlon to ask the former judge to weigh in on a pending capital case, People v. Allen Johnson. Kindlon was lead counsel but enlisted Hancock to tackle the constitutional issues. In Johnson, Hancock argued that the state constitution offers capital defendants greater protections, and that general evidence of racial and geographic disparity render the statute unconstitutional. Albany County Judge Thomas A. Breslin rejected the argument, but because the defendant pleaded out to avoid a possible death sentence, Judge Hancock’s assertions were never tested before the Court of Appeals. People v. James Cahill presents the high court with that opportunity. It will be argued today. Judge Hancock said the current dynamics of the court could play a role in whether the judges are willing to reach an issue that may not need to immediately address. With one vacancy due to Judge Richard C. Wesley’s departure for the 2nd U.S. Circuit Court of Appeals, there will be only six judges on a panel that will include three appointees of Gov. George E. Pataki, who reinstated the death penalty in 1995, and three appointees of former Gov. Mario M. Cuomo, who repeatedly vetoed legislation to restore capital punishment. Hancock served with only two of the six judges who will hear Cahill, Chief Judge Kaye and Senior Associate Judge George Bundy Smith.

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