Threshold for Death Penalty Is Sought
The New York Times
January 11, 2004
Lawyers for a convicted
killer on death row are asking New York's highest court to make
it harder for prosecutors to win death sentences, just as some
prosecutors are growing impatient with the court, which has yet
to approve a single execution.
In written arguments
in a death penalty case to be considered by the New York Court
of Appeals on Wednesday, the state's Capital Defender Office argues
for the first time that the state Constitution requires a special
rule for death penalty cases. That rule would mean that to convict
someone of capital murder, the standard of proof would be greater
than "beyond a reasonable doubt," the standard for conviction
in criminal cases in this country for centuries.
In its place, the
lawyers said, the court should require prosecutors to prove a
defendant's guilt "beyond any doubt" to justify an execution.
The proposal is opposed by prosecutors and is just one of scores
of claims made on behalf of a death row inmate, Angel L. Mateo,
who confessed in 1996 to four Rochester killings. Lawyers who
follow the court say it is unlikely the judges will adopt the
proposal in Mr. Mateo's case.
But experts on capital
punishment say the fact that the proposal has reached New York's
highest court reflects the shifting ground in legal battles over
the death penalty nationally. Spurred by DNA exonerations, defense
lawyers are increasingly tailoring arguments to take advantage
of what they see as growing public concern about the possibility
that innocent people might be put to death.
The idea of increasing
the level of certainty required for conviction is one of a handful
of proposals to modify capital punishment that have gained attention
around the country in the last few years. Some of its proponents
are death penalty supporters who say the only way to shore up
public support for execution is to try to ensure that only those
who clearly deserve the ultimate punishment are put to death.
"I am certainly
no shrinking civil libertarian," Frank Keating, a Republican
and the former governor of Oklahoma, said in an interview, "but
I think if you're going to take somebody else's life, you need
to be convinced to a moral certainty."
Mr. Keating, who
was also a senior Justice Department official in the Reagan administration,
unsuccessfully sought to change Oklahoma's death penalty law to
require proof "to a moral certainty" while he was governor
James S. Liebman,
a Columbia Law School professor who has written widely on the
death penalty, said the proposal to increase the standard of proof
in death penalty cases has been endorsed by some influential criminal
law experts since the 1960's. He said the idea, which he favors,
"is a very logical outgrowth of the view that we can have
a death penalty and make it reliable."
But some prosecutors
say the proposal would block all death penalty cases because it
is not possible to remove all doubt. "Even if the crime was
committed on videotape, somebody could always come up with a doubt,"
said the district attorney in Schenectady, Robert M. Carney.
The district attorney
in Utica and the president of the New York State District Attorneys
Association, Michael A. Arcuri, said, "If that standard is
adopted, we will not have a death penalty in New York."
Still, some lawyers
say changes in the law are often won in incremental battles that
can take many years. Eric M. Freedman, a Hofstra University law
professor who has worked on death penalty cases, said the proposal
to increase the standard of proof could become more persuasive
as court battles unfold. "Arguments gain traction in the
legal system over time," he said.
This is not the first
time similar arguments have reached courts around the country.
In a dissent in a death penalty case in 2002, a New Jersey Supreme
Court justice, James H. Coleman Jr., said there was a special
need for reliability in capital cases. He said some facts in the
cases should be proved to a degree greater than "beyond a
reasonable doubt." The same standard "used to determine
whether an individual should be found guilty or innocent of possession
of a marijuana cigarette," he wrote, "should not be
used in determining whether an accused can be executed."
As in many debates
about the death penalty, proponents of raising the legal standard
differ on how it should be done. Robert Blecker, a professor at
New York Law School who favors capital punishment, said one problem
with current law is that it makes jurors' decisions about whether
to impose death formulaic, leading to accusations that too many
people are sentenced to death.
He said it was important
that prosecutors should prove person guilty of a murder charge
by the traditional "reasonable doubt" standard. To raise
the standard in that part of a capital case, he said, would make
But Mr. Blecker,
who is writing a book arguing in favor of the death penalty, said
that when jurors then determine whether to sentence someone to
death, they should be required to meet a higher standard. He said
the standard should be proof to a moral certainty that a defendant
deserves to die.
That, he said, would
return credibility to the death penalty by ensuring that only
"the worst of the worst" are sent to death row. Currently,
he said, the law permits jurors to impose death too freely. "The
law," he said, "should require you to be angry enough
at the defendant to want him to die."
The Court of Appeals
has already reviewed two death sentences since New York's death
penalty law took effect in 1995. It overturned both sentences
on narrow grounds. Lawyers who have watched the court say they
consider a similar ruling likely in the case of Mr. Mateo, who
was sentenced to death for one of the four murders.
In a confession,
he wrote, "I think I should get the death penalty for the
things I did."