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Lessons from the Archives: The Death Penalty

Published in the February 2020 edition of Queens Bar Bulletin, Editor’s Note, by Paul E. Kerson.

The New York State election of 1994 was enough to horrify even the most seasoned among us.

George Pataki beat incumbent Governor Mario Cuomo by three percentage points. Pataki promised to reinstate the death penalty, and that was his major campaign theme.

New York had not had an execution in decades, since 1963. Our members thus had no experience with this ultimate sentence and how to prevent it.

Worse, many of the State’s prosecutors jumped on the Pataki death penalty bandwagon. There was a bloodlust in the air. The qualities of justice, mercy, understanding, rehabilitation, family, and forgiveness that define New York’s character seemed to be forgotten entirely in 1994.

Pataki was determined to pull us down into the cesspool of racism and revenge that characterized the leading death penalty states such as Alabama and Texas. He was going to take the New York out of New York.

Fortunately, in the new death penalty legislation he pushed through in 1995, the State Assembly forced Pataki to allow the creation of the brand new State Capital Defender’s Office (CDO). The CDO would be adequately funded. There would be staff attorneys and court appointed lawyers on a case-by-case basis who qualified for the new Capital Defender Panel. The pay was to be considerably more than that of the Homicide Defense Panel for “ordinary” (non death-penalty) homicides.

The brand new New York State Capital Defender was an excellent choice, the Alabama Capital Defender Himself, Kevin Doyle, the very religious Catholic son of a Bronx police officer. Kevin Doyle believed in the sanctity of human life above all, and that the State had no business taking life.

There was no time to waste. The new statute authorized the State’s mad-dog prosecutors to start seeking the death penalty in September 1995.

Kevin was equal to the task. In July 1995, he summoned the State’s most experienced criminal defense lawyers to a low-budget hotel in White Plains for a three day crash course in capital case defense.

It was a deeply religious experience, whether one believed in Organized Religion or not. Kevin lectured us at length about the sanctity of human life. He told us his goal: George Pataki’s sick electoral cynicism or not, no one was going to be executed in New York as long as Kevin was our Capital Defender. And we, each of us, were going to help him achieve this goal – very New York: Everyone from everywhere is welcome, and we don’t kill people, we take care of everyone and their families, and they take care of us. This is what we mean by the motto: Empire State.

Your Editor was President of the Queens County Criminal Courts Bar Association at the time, a Member of the Homicide Defense Panel, and the holder of the record for jury trial acquittals in homicide or attempted homicide cases – five.

Sure enough, as predicted, in September 1995, the capital charges started to be filed in record numbers. Kevin assigned the first case out of the box to your Editor. I was honored, but frightened beyond any fear I ever had before. If I made a mistake, a man could die. Yes, I had been a lawyer for 20 years at that point, and yes I had the record for jury trial acquittals, but, as Kevin kept telling us: Death is different.

It was a Nassau County case. Bill Morton was riding in a Hempstead taxicab when his fellow passenger, Joe Green, put a loaded gun in the face of the driver, and demanded money. The driver refused. Green shot the driver, and he died in the hospital later that day. (Names have been changed to protect the innocent.)

Bill Morton had no gun. Bill Morton did not rob anyone. Bill Morton did not kill anyone. Bill Morton had no idea Joe Green was going to pull out a gun and seek to rob and shoot the cab driver.

What was wrong with the Nassau County District Attorney? What planet did he come from? Even if one “believed” in the death penalty, how could it be used in a case like this? Certainly there was more than reasonable doubt here.

But this was the political climate Pataki created in the Election of 1994. He used his status as a major party nominee for Governor to whip up the public into its worst instincts. This was not leadership. This was cowardice and raw ambition. And it trickled down to the State’s District Attorneys and their Assistants.

At the arraignment on October 2, 1995, I met Shiela Morton, Bill’s mother. I sat on a bench with her outside the courtroom at the Nassau County courthouse on 262 Old Country Road. I knew it was her by the horrified look on her face. I told her my name, gave her my card, and told her I was appointed by the State Capital Defender to defend her son Bill.

She started to cry, great big tears rolling down her face. She could not talk for a long time. I held her hand tightly in mine.

Finally she said, “They want to kill my baby boy….” and her voice trailed off into her sobs.

“Oh, no,” I said. “No one is going to kill your boy as long as I am alive.” I meant it, and I squeezed her hand all the harder.

I wished George Pataki had been with me on that Nassau County Court bench outside the courtroom. Then perhaps he could have seen the recklessness and stupidity and needless pain he caused with his outrageous 1994 campaign for Governor and foolish insistence on his 1995 Death Penalty statute. I studied the discovery materials I received from the District Attorney. The crime had allegedly occurred on September 14, 1995. I looked at Bill’s date of birth on the police report. He was not yet 18 years old on September 14, 1995. The new New York Death Penalty statute provided that the defendant had to be 18 years old at the time of the crime. I immediately made an oral motion to dismiss the capital charge as totally illegal under the existing new statute. “Not granted,” said the Judge. “I want to see the actual birth certificate”. I instructed Mrs. Morton to bring her son Bill’s birth certificate at our next court date in three days. Sure enough, on October 5, 1995, I again made the same oral motion to dismiss the capital count and handed up the birth certificate. “Not granted,” said the Judge. “It could be a forgery”. I imagined Franz Kafka looking down on us. This is beyond absurd. I was holding a New York City Health Department Birth Certificate with the signatures of Mayor Edward I. Koch and Health Commissioner Pascal J. Imperato, M.D.

Mrs. Morton could not believe this. Neither could I. I sent her to the Hospital where Bill was born to get a hospital birth certificate with a raised seal. Despite this bureaucratic hurdle for a 17 year old hospital birth certificate, Mrs. Morton managed to do it.

On October 17, 1995, our next adjourned date, Mrs. Morton appeared with a Hospital birth certificate with a raised seal. The Assistant District Attorney carefully studied it, turned it over and over a few times, and pronounced it genuine. My motion to dismiss the capital charge was granted.

Under the terms of the new Death Penalty statute, I was now off the case, and lesser paid counsel substituted under Article 18-B of the County Law, as this was no longer a capital case.

I submitted my voucher on Dec. 7, 1995. It was cut by one-third by the Nassau County Judge by an Order on July 2, 1997, 19 months later. I received a State check for the reduced amount of the fee on August 8, 1997 from the Pataki Administration.

Was the cutting of the voucher and the nearly two years it took to get paid a Message? Maybe it was, and maybe it was just bureaucratic ineptitude. But Kevin Doyle succeeded in his stated goal. No one has been executed in New York since George Pataki demanded executions in 1995. Kevin and his staff and panel attorneys either won every trial and/or appeal, or negotiated pleas that took the death penalty off the table.

Kevin’s biggest win was People v. LaValle, 3 N.Y. 3d 88, 783 N.Y.S. 2d 485 (2004). Our Court of Appeals struck down Pataki’s death penalty statute as violative of our State Constitution. The State Legislature, under a new Governor in 2007, Eliot Spitzer, prohibited the death penalty. Governor David Paterson issued an Executive Order in 2008 requiring the removal of the State’s execution equipments. Sanity had returned to New York.

Not so in Alabama. Read Bryan Stevenson’s 2014 book, Just Mercy: A Story of Justice and Redemption, Penguin Random House, Publishers, New York. It is the story of Bryan’s public interest law firm, Equal Justice Inititative, of Montgomery, Alabama.

It is an inspiration. Bryan saved his case files. In them, we meet police officers who fake investigations, judges who put up with this, and prosecutors who are completely indifferent to justice. And Alabama’s stakes are much higher. They execute people. Bryan had many capital cases going at one time. From the above description, you can see how this would be the most difficult, challenging practice of all.

Let us hope and pray that the U.S. Supreme Court reads Bryan’s book, and acts accordingly.

Read February 2020 Bulletin

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