On March 7, 1995, New York's newly elected governor, George Pataki, fulfilled one of his main campaign promises by signing the state's death penalty into law. He called the law "the most effective of its kind in the nation."
More than eight years later, a ruling by the state's highest court has raised questions about whether the court will ever permit an execution. On Tuesday, the Court of Appeals overturned a death sentence for the second time, in the case of a Syracuse-area man convicted of killing his wife.
Some prosecutors said they were frustrated by the ruling because they would like to know whether they are wasting time and money pursuing capital punishment. In its decision, the court sidestepped broad questions about the law.
ILLUSTRATION MOUNTAIN PEOPLE
"We're eagerly awaiting guidance on the constitutionality of the statute," said Michael Arcuri, the district attorney in Utica and president of the New York State District Attorneys Association. "The decision didn't give us any guidance."
But the bitterly worded 4-2 decision did begin to reveal how the divided judges line up on the issue, one of the most volatile the court has faced in years. Two judges, some death penalty lawyers said, appear committed to capital punishment. Two seem troubled by the law. And two may be willing to let the issue play itself out over many years with case-by-case rulings.
The split drew new attention to Robert Smith, Pataki's nominee to fill a vacant seventh seat on the court. Some death penalty supporters said that because of the division on the court, Smith could play a central role in determining the future of capital punishment in the state.
Smith has described himself as a conservative, but his views on the death penalty are not known. "We must make sure he's going to be fair on that issue," said state Senator Dale Volker, a Republican who led the effort to reinstate capital punishment in New York for two decades.
As a lawyer for convicted murderers, Smith has twice argued against the death penalty in the US Supreme Court. But after he was nominated on Nov. 4, he said he was undecided on the issue. "I am not entirely sure," he said, "what my own views are."
If confirmed by the State Senate, he would land in the middle of a bruising battle. The two associate judges who dissented on Tuesday, Victoria Graffeo and Susan Phillips Read, used harsh language as they argued that the court should have left in place a first-degree murder conviction for the Syracuse-area man, James Cahill III, who beat his wife with a baseball bat and later forced cyanide down her throat. Cahill is now to be sentenced to a maximum of life in prison for second-degree murder.
"The majority has substituted its `wisdom' and public policy choices for those of the Legislature," Graffeo wrote. Both of the dissenting judges served in senior legal positions in Pataki's administration and were appointed to the court by him.
"It looks to me as though you would have two votes favorable to upholding the death penalty on all grounds," said a retired Court of Appeals judge, Stewart Hancock Jr., after reading the judges' opinions.
Some lawyers said two associate judges who were appointees of former governor Mario Cuomo, George Bundy Smith and Carmen Beauchamp Ciparick, had formed a counterbalancing alliance that is open to criticisms of the death penalty law.
George Bundy Smith, who was once a staff lawyer for the NAACP, voted with the majority and wrote a concurring opinion. He said one argument by critics of the death penalty "is a strong one." That argument claims the state's death penalty is unconstitutional because it can be sought arbitrarily by prosecutors, making it possible for life-or-death decisions to be tainted by racism.
He also criticized a provision of the 1995 law that requires judges to tell jurors that if they cannot reach a unanimous decision on a penalty, the judge will impose a sentence with a minimum of 20 to 25 years. Smith said the possibility that a killer might one day be set free coerces jurors to vote for execution. Ciparick, who was once a Legal Aid lawyer, agreed with Smith on that point and also voted with the majority.
The majority's decision overturning the death sentence for Cahill was written by Judge Albert Rosenblatt, a former Dutchess County district attorney. It said that the trial judge had made errors in screening the jurors and that the prosecutors had not proved the aggravating circumstances the law requires to make a defendant eligible for execution, like the prosecutors' claims that Cahill killed his wife to keep her from testifying as a witness against him.
The fourth vote in the majority came from the chief judge, Judith S. Kaye. Some lawyers say the backgrounds of both Kaye and Rosenblatt contain hints of what might be ambivalence about the death penalty.
As a trial judge, Rosenblatt once imposed a death sentence but suggested he might have personal reservations about capital punishment. When Kaye was first appointed to the court in 1983, she was viewed as a liberal, and she wrote the court's opinion the next year striking down the state's last death penalty law. But death penalty lawyers say her record on the court in recent years leaves them unsure whether she now favors or opposes capital punishment.
So the tally on the death penalty in the court may now be two to two, with the two others, Rosenblatt and Kaye, hesitant to make a sweeping declaration either way. Which could mean that Robert Smith, nominated to be the seventh judge, may effectively determine the future of the death penalty in New York.
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