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The Court of Appeals Thursday effectively shot down New York’s death penalty law. A 4-3 decision found unconstitutional the statutory requirement that jurors in the penalty phase be told that a deadlock will make the defendant eligible for parole some day. To restore capital punishment, the state Legislature will have to amend the statute. The decision in People v. LaValle, though a landmark in New York’s long history of death penalty jurisprudence, was not unexpected. Two judges on the court had indicated in an earlier case that the deadlock provision would not endure constitutional scrutiny. Additionally, two of New York’s major death penalty proponents — Gov. George E. Pataki and Sen. Dale M. Volker, both Republicans — had suggested amending the statute to correct what they viewed as its vulnerability. The debate over capital punishment will shift back to the political arena just in time for campaign season. All 211 legislative seats are up for election this year. Within hours of release of the opinion, Pataki called the ruling disappointing and Senate Majority Leader Joseph L. Bruno, R-Brunswick, issued a statement calling it “irresponsible.” The Senate leader urged the Democrat-controlled Assembly to “join us in an effort to restore the death penalty law, which is supported by an overwhelming majority of New Yorkers.” Assembly Speaker Sheldon Silver, D-Manhattan, said in a statement Thursday that he is “certain that, in consultation with members of our majority conference, we will take appropriate action to address the issue raised” by the court. Observers suggested that Thursday’s opinion gives Silver a considerable bargaining chip, if he chooses to use it. Volker said that even if the Legislature can agree to amend the statute, he suspects the current Court of Appeals will always find ways to avoid ordering an execution. He said the only remedy is to replace judges like those in the majority here with others and predicted that will be a major issue in the next gubernatorial election. “This is frustrating to the voters in this state,” Volker said. “The voters voted for the governor and me and a lot of legislators based partly on the death penalty. … My personal opinion is some people are going to die because of this opinion. This a message to the street that no one is going to be executed.” New York stands alone among death penalty states with its jury deadlock provision. It requires that the sentencing phase jury be warned of the consequences of failure to reach a unanimous verdict for either life-without-parole or death: a parole-eligible sentence. Under the law, if the jury cannot unanimously agree on death or life without parole, the judge must impose a term of 20 or 25 years to life, a less-severe sentence than either alternative given the jury. Drafters of that provision recognized the potential coercive effect in allowing a hung jury to speculate and perhaps even assume that their inability to agree would unleash a convicted killer on the community, so they required the deadlock charge. Critics said from the start that the provision was constitutionally suspect. They argued that a juror holding out for life without parole might be inclined to vote for death to avoid a result that no one on the panel wants, the possibility that a murderer would be turned loose. Supreme Court Justice Anne G. Feldman, who presided over the first capital case prosecuted under the 1995 law, People v. Harris, refused to deliver the deadlock charge, deeming it unconstitutional. However, since she did not deliver the deadlock charge, its constitutional viability did not immediately come before the high court. When it did, two Court of Appeals judges, George Bundy Smith and Carmen Beauchamp Ciparick, said in People v. Cahill (decided Nov. 25, 2003) that the deadlock provision was constitutionally untenable. Thursday, two of their colleagues — Chief Judge Judith S. Kaye and Judge Albert M. Rosenblatt — agreed, forming a majority. “By interjecting future dangerousness, the deadlock instruction gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 years will join jurors favoring death in order to avoid the deadlock sentence,” Bundy Smith wrote for the majority. “For jurors who are inclined toward life without parole, the choice is between death and life with parole, a Hobson’s choice in light of the jurors’ likely concerns over defendant’s future dangerousness.” The majority acknowledged that the provision may coerce a jury toward life-without-parole rather than death, but said that does not alleviate the defect “because death is qualitatively different.” Judge Bundy Smith said the Legislature was aware of the risks in the deadlock provision. He referred to a legislative debate between Sen. Volker and then-Sen. Richard Dollinger, a Democrat from Rochester. When they were debating the death penalty on March 6, 1995, Dollinger expressed concerns about the coercive impact of the deadlock provision. Volker said there “would be a much more serious constitutional problem” if a hung jury was left to speculate. The court Thursday said both senators had valid points. It agreed with Volker that the jury must know the consequences of a split vote. But it also agreed with Dollinger that a deadlock provision calling for a less-severe penalty than anything before the jury was irreparably coercive. FEDERAL REVIEW UNLIKELY The decision, critically, relied on both the state and federal constitutions and is therefore probably insulated from federal review. That is important since at least two U.S. Supreme Court decisions, while not exactly on point, suggest strongly that New York’s deadlock provision would not violate the U.S. Constitution. “[A] vote for life imprisonment or death, driven by the fear that a defendant might be parole-eligible if jurors fail to reach unanimity, does not satisfy the heightened standard of reliability required by our State Constitution,” Judge Bundy Smith wrote. Of the four judges in the majority, only Rosenblatt was appointed by Gov. Pataki, who won the 1994 election on a pro-death-penalty platform. The three dissenters — Judges Robert S. Smith, Victoria A. Graffeo and Susan Phillips Read — are Pataki appointees. Judge Smith, writing for the dissent, suggested the majority holding was more result-oriented than legally sound. He said the majority had “discovered” a new constitutional right — the right to a jury that is told in advance that a non-unanimous vote guarantees life without parole. “The existence of such a right finds no support in precedent, and none in logic except on the premise that death penalty defendants are constitutionally entitled to every procedural advantage the human mind can devise,” he wrote. Judges Smith, Graffeo and Read said the provision as included in the statute is “more likely to cause a pro-death juror to vote for life” rather than the other way around and noted that in non-capital cases jurors clearly can be warned that a deadlock may result in adverse consequences. The dissenters said they were “astonished” that the majority would not only find the deadlock provision unconstitutional and unenforceable, but also that the jury must receive some guidance on the effect of a deadlock. “We believe the instruction and the rest of the statute are obviously severable,” wrote Judge Smith, who represented two death row inmates in appeals before the U.S. Supreme Court before his appointment to the bench. “We also believe that the majority’s holding that a deadlock instruction is constitutionally required embodies an extreme version of the error we have already discussed — substituting the majority’s policy preferences for those of the Legislature. … The majority’s decision is based on nothing but its own policy judgment.” Judge Rosenblatt wrote separately to respond to the dissent’s assertion that the court was intruding on legislative province and to make clear that “judges are ruled not by their stomachs but by their minds,” experience and training. “Deadlock instruction jurisprudence is, literally, a matter of life and death, and the Court is right to declare that an execution based on an unreliable sentencing verdict is constitutionally unacceptable and cannot be justified in the name of deference to the Legislature,” Rosenblatt wrote. The majority decision hinged strongly on state constitutionalism, a path this court has followed infrequently in recent years, and the precedents of former Chief Judge Lawrence H. Cooke, a leading proponent of state-based adjudication. Volker, an attorney, called the court’s reliance on the state constitution a “clever” way to evade both the New York Legislature and the U.S. Supreme Court. “If I were a betting man, I would bet some anti-death penalty people worked for these judges to figure out some way to [preclude review] by the Supreme Court, which would probably rule on our side,” Volker said. “This is an extremely clever way of either shirking responsibility or using philosophy to make a decision, showing either a lack of courage or a lack of will.” Here, the majority explicitly rejected the U.S. Supreme Court’s holdings in two 5-4 cases, California v. Ramos, 463 US 992 (1983) and Jones v. U.S., 527 US 373 (1999), and found that the New York Constitution requires higher due process protections. “You’ve got a court that is deeply divided over whether the death penalty ought to be given the strictest imaginable scrutiny,” said Albany Law School Professor Vincent M. Bonventre. “You’ve got three of them [Judges Smith, Graffeo and Read] who believe the sentences ought to be scrutinized, but not nearly as much as the four in the majority.” FACTUAL BACKGROUND LaValle arose out of the rape and murder of a Long Island teacher and track coach. Records show that Cynthia Quinn was out for her daily 6 a.m. run when she encountered the defendant, who was urinating in public, possibly after a night of abusing cocaine and alcohol. Quinn, a wife and mother of two young children, apparently reprimanded LaValle, who proceeded to attack, sexually assault and then stab her more than 70 times with a screwdriver. On appeal, First Deputy Capital Defender Susan H. Salomon and Capital Defenders Daniel R. Williams and Christopher Seeds focused on a handful of key issues, including: � Hynes v. Tomei, 92NY2d 613, a 1998 decision in which the Court of Appeals struck down the plea bargaining provisions of the capital statute. Before Hynes, the provision allowed a defendant to escape any possibility of a death sentence by foregoing his or her right to a jury trial and pleading guilty. Two of the three capital appeals decided before LaVallePeople v. Harris and People v. Mateo, both reversals — turned on Hynes. In LaValle, the defendant was tried and sentenced under a corrected statute. However, LaValle made his decision to plead not guilty while the unconstitutional provision was in effect. The court Thursday did not address the alleged Hynes issue. � Alleged Brady violations. Under Brady v. Maryland, 373 US 83 (1963), the defense is entitled to exculpatory evidence obtained by prosecutors. In this case, two witnesses told authorities that LaValle was engaged in an alcohol and crack-cocaine binge just hours before the crime. The prosecution identified the witnesses, but would not reveal their actual statements. The trial court allowed the prosecution to withhold that evidence. On appeal, the defense argued that the evidence was wrongly withheld, especially since the prosecution stressed that there was nothing to indicate LaValle was drunk or on drugs at the time of the attack. The Court of Appeals found no Brady violation. � Mitigation waiver. The Capital Defenders Office urged the Court of Appeals to create a rule requiring the appointment of independent counsel when a death-eligible defendant refuses to permit counsel to present mitigating evidence during the sentencing phase, as LaValle did here. Apparently, LaValle did not want his troubled childhood, which may have included sexual abuse, aired publicly. That raised a question of whether he could waive mitigation and deny the jury relevant information in determining an appropriate sentence. New York’s high court chose not to address the issue Thursday. Assistant Suffolk County District Attorney Michael J. Miller appeared for the prosecution. Assistant Attorney General Luke Martland defended the statute for the state. Capital Defender Kevin Doyle said “tremendous, tremendous credit goes to Susan Salomon for presenting so clearly both the constitutional and equitable problems with the deadlock provision.” He said the ruling was “not a surprise” since he and other experts had long viewed the deadlock provision as the Achilles heel in the death penalty statute. “The degree to which [the deadlock provision] made for unpredictable and unfair results was such that it is hard to imagine how it could have stood,” Doyle said. Doyle said that if the Legislature does repair the statute with regard to the deadlock provision, there are myriad other issues that the court will need to address before any execution takes place. The court still has not ruled on the per se constitutionality of capital punishment, issues of geographic and racial disparities, waiver of mitigation or a host of other matters. Three defendants remain on death row. Their appeals are before the Court of Appeals. All of those cases reflect the same problem as the case decided Thursday.

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