Is Not Option in Slaying of 2 Detectives
New York Times
By WILLIAM GLABERSON
September 14, 2004
Brooklyn prosecutors filed first-degree
murder charges yesterday against Marlon Legere, the 28-year-old
man charged with killing two police detectives last week. But
they said they could not seek his execution because no capital
punishment law is in place, signaling a sharp shift in the status
of the death penalty in the state.
The decision on charges in the double killing
was the first to crystallize the full effect of a June ruling
by New York's highest court that said the state's death penalty
law was flawed. Some prosecutors around the state had argued after
the decision that they could proceed with new capital cases anyway,
under the assumption that the Legislature would address the ruling
quickly by enacting a new death penalty law.
But no new law was passed, and since the
Brooklyn case is one that death-penalty proponents say is the
very definition of a capital crime, the impact of the Court of
Appeals decision emerged clearly yesterday.
"There is no viable death penalty
in New York right now," the Brooklyn district attorney, Charles
J. Hynes, said through a spokesman.
More than any case since the June ruling,
lawyers said yesterday, the prosecutors' decision in Brooklyn
showed that, in effect, there is a moratorium on the death penalty
in New York.
In a Brooklyn courtroom jammed with anguished
police officers, a prosecutor, Kenneth Taub, told Judge William
L. McGuire Jr. of Criminal Court that the prosecutors would not
seek execution, and the judge agreed that the penalty was not
Mr. Taub, who said he knew both detectives
who were slain Friday night, said the evidence of Mr. Legere's
guilt was overwhelming. "I cannot imagine any circumstances
whatsoever," he added, "that would not result in this
defendant's not spending the rest of his life in prison."
Mr. Legere, slumped and strapped in a wheelchair
during the brief arraignment, wore a blue hospital gown. He has
been treated for bullet wounds in both legs that the police said
he had when officers found him 13 blocks from the street where
Detective Robert Parker, 43, and Detective Patrick Rafferty, 39,
were gunned down.
A not-guilty plea was entered for Mr. Legere.
He did not speak.
Some of the officers expressed bitterness
that the death penalty was not applicable. "If anything was
a capital case, this was," said Patrick J. Lynch, the president
of the Patrolmen's Benevolent Association.
In its 4-to-3 ruling on June 24, the Court
of Appeals overturned the death penalty in the case of a Long
Island killer. The court said the law violated the State Constitution
by requiring judges to tell juries that if they were deadlocked,
the judge would impose a sentence that would leave the convicted
killer eligible for parole. The court said such instructions could
coerce jurors to vote for execution.
"Under the present statute,"
the court majority said, "the death penalty may not be imposed."
Some prosecutors argued after the decision
that if the Legislature enacted a new death penalty law, it could
be applied to murder cases that arose after the court's June 24
decision. Just days after the June ruling, the district attorney
in Troy, N.Y., filed a notice that she was seeking the death penalty
against two men charged in the killing of a police informer.
Other prosecutors said they were continuing
to evaluate new cases as if they could be eligible for capital
punishment. Mr. Hynes said through a spokesman last month that
his office would "proceed as usual with new cases, which
could result in seeking the death penalty."
In recent weeks, prosecutors and defense
lawyers said yesterday, a consensus has been growing around the
state that because the Legislature has not adopted an amended
law, there is effectively a moratorium on capital cases.
"What's going on in New York right
now is what's going on in the rest of the country, which is a
reassessment of whether it is worth it to have a death penalty,"
said Jeffrey L. Kirchmeier, chairman of the capital punishment
committee of the New York City Bar Association.
Mr. Hynes's spokesman, Jerry Schmetterer,
said lawyers in the office evolved an understanding of the death
penalty status after research and analysis over recent weeks.
The Republican-controlled Senate passed
a new death penalty law last month that included a provision saying
the change was retroactive, but the Democratic-controlled Assembly
did not act on it. Death penalty lawyers say it is unclear whether
it was legal to make such a law retroactive.
Gov. George E. Pataki was a major proponent
of the New York capital punishment law, which was passed in 1995.
In response to questions about Mr. Hynes's conclusion that the
state currently has no death penalty, a spokeswoman for the governor,
Lynn Rasic, read a statement that seemed to agree.
Referring to the Senate bill, that statement
said, "The sooner the Assembly acts on this bill, the sooner
we will have a capital punishment law on the books that can be
used to prevent dangerous killers from getting back on the streets."
Andy Newman contributed reporting for