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New York’s top court today will hear its fourth death penalty case, but the first to raise the novel issue of whether a capital defendant may waive his right to present mitigating evidence at sentencing. The Capital Defenders Office is urging the Court of Appeals to create a new rule that would require the appointment of an independent counsel whenever a death-eligible convict seeks to bar introduction of evidence that could persuade a jury to vote for life in prison rather than execution. New York’s attorney general, as intervener, will argue in opposition. A few states, such as New Jersey and Florida, have such a judicially crafted rule, but most of the courts addressing the issue have ruled otherwise. California, Illinois, Ohio, Oklahoma, Tennessee and Utah state courts, and the 5th U.S. Circuit Court of Appeals, have all rejected claims that the Eighth Amendment requires mitigating evidence over a defendant’s wishes. People v. LaValle arises out of the rape and murder of a Long Island teacher and track coach who encountered the defendant while jogging. Evidence suggests that Stephen S. LaValle, possibly after a night of drinking and smoking crack cocaine, was urinating in public when Cynthia Quinn, out for her daily 6 a.m. run, reprimanded him. Quinn, a wife and the mother of two young children, was raped and stabbed 73 times with a screwdriver. LaValle was convicted of first-degree murder and condemned. His mandatory appeal raises myriad issues, some of which have been raised but not resolved in other capital appeals; some of which would apply whether this was a death case or not; and at least one — waiver of mitigation — that has never been considered by the Court of Appeals. Crucial to that portion of LaValle’s appeal is that his perhaps fatal choice to forgo mitigation testimony was apparently not a tactical consideration, but a decision based on a reluctance to bare his own and his family’s history in a public courtroom. That history includes sexual abuse, the defense contends. “A convicted capital defendant’s profound reluctance to present mitigating life-history evidence conflicts with the jury’s need to have a full picture of the person it is being asked to decree as worthy of life or death,” First Deputy Capital Defender Susan H. Salomon and Capital Defenders Daniel R. Williams and Christopher Seeds argue in their brief. “We ask the court to consider those defendants who seek mitigation waiver, not as a tactical maneuver, but to smother the evidence of their shame-ridden and deeply traumatic history.” The defense concedes that a refusal to present mitigating evidence could be a calculated decision to deprive the jury of even more damaging information. It also admits that a defendant who would prefer death over life in prison may be inclined to waive mitigation. Here, however, defense counsel note that LaValle permitted his attorneys to argue for life without parole — and then denied them the tools to achieve that result. But the prosecution, joined by the attorney general, urges the court to show restraint and avoid creating a new rule absent legislative direction. Assistant Suffolk County District Attorney Michael J. Miller said the only legitimate issue is whether LaValle knowingly and competently waived his right to offer mitigating evidence — and on that point he said there is no dispute. He also questions how the Capital Defenders’ proposal to require amici counsel would actually work. “[T]o whom would independent counsel owe their duty of loyalty?” asked Miller in his brief. “To the defendant, who is against the position they advocate, or the state that is prosecuting the case? The court that is supposed to be impartial? There is � no ethical or logical method to appoint an independent mitigation counsel.” Assistant Attorney General Luke Martland will argue that the defendant has a right to “determine his own destiny,” even if that means waiving mitigation. “[It] is illogical to assert that a defendant has true control over his or her case when the court can appoint an attorney to present evidence that the defendant wants concealed, and to advance arguments that the defendant wants unspoken,” Martland said in his brief. LaValle’s dispute with his attorneys over the presentation of mitigating evidence was one of several battles between the defendant and legal counsel. Shortly after the prosecution began, LaValle attempted to fire his publicly funded legal team and proceed pro se. Trial Judge Michael F. Mullen would not allow LaValle to continue without representation, but ultimately the original lead counsel withdrew and was replaced by associate counsel, who was replaced by an attorney new to the case. Most recently, LaValle objected to the manner in which the Capital Defenders Office was pursuing the appeal. After filing numerous complaints with the Court of Appeals asserting that his attorneys were striving to win him a life sentence rather than reversing the conviction, LaValle was granted permission to file his own appellate brief. However, he never did so. PRIOR CAPITAL CASE With several other issues at their disposal, it is uncertain that the Court of Appeals will even reach mitigation. One of those issues — Hynes v. Tomei — has already spared the lives of two capital defendants and if the court adopts the defense argument on that point it could save LaValle’s life, leave the statute intact and put off for another day the substantive constitutional issues that must be addressed before anyone is executed under the 1995 statute. In Hynes v. Tomei, 92 NY2d 13 (1998), the court excised the plea bargaining provision of the statute. Since the law permitted defendants to escape the risk of execution by waiving their trial rights and pleading guilty, it impermissibly burdened the defendant’s constitutional rights, the court said. The court revisited Hynes in two of the three capital appeals decided so far (those of Darrel K. Harris and Angel L. Mateo). In the prior cases, the court has made clear pre- Hynes capital prosecutions were fatally inflicted with the constitutional infirmity. It has also found that prosecutions straddling the pre- and post- Hynes era are similarly infected. Here, Hynes was decided before LaValle’s trial. However, Hynes was still pending on June 3, 1997, when LaValle made his decision to plead not guilty and proceed to trial. “That he was ultimately tried and sentenced under a Hynes-corrected capital scheme does not … eliminate the constitutional violation,” the defense claims. The attorney general barely mentions Hynes in its brief. Miller argues that Hynes is not controlling since it was decided before LaValle’s trial. He insists the defendant’s fair trial rights were in no way infringed due to the faulty provision. OTHER ISSUES Several other issues are also before the court:

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