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Prosecutors Seek Fewer Executions, Signaling New Wariness

By William Glaberson

The New York Times
September 21, 2003

Eight years after a wave of pro-death-penalty sentiment brought a new capital punishment law in New York, there are signs that prosecutors around the state may be losing enthusiasm for seeking execution.

In the first years after the law was enacted, district attorneys sought the death penalty far more often than they have in recent years. In 1998, the peak year, prosecutors filed legal notices recommending that 14 people be put to death. But since then, death-penalty cases have declined sharply, to two so far this year, according to data from the New York Capital Defender Office, a state-financed agency that represents defendants.

In interviews, prosecutors offered many reasons for the decline, including the shrinking crime rate and growing questions nationally about wrongful convictions.

Some cautioned that it was hard to draw any conclusions because of the small number of people, 49, whom New York prosecutors have sought to execute under the new law.

But some prosecutors said the first years had taught them hard lessons about the extraordinary difficulties of death-penalty cases. Several said it was so hard to persuade New York jurors to vote for death that they were being more selective in choosing when to seek execution.

"D.A.'s are being more and more careful in making that determination," said Howard R. Relin, the longtime district attorney in Rochester, who favors the death penalty. "There's a sense of realism that has set in to prosecutors around New York State, as a result of the jury verdicts we have seen throughout the state."

Even if prosecutors persuade jurors to vote for capital punishment, many years of uncertainty follow. No one has yet been put to death under the law, and no execution is considered likely for at least several years because of the lengthy appeals process. Of the seven men who have been sentenced to die, the state's highest court, the Court of Appeals, has already reversed the sentence in one case. That defendant, a Brooklyn killer named Darrel K. Harris, was then sentenced to life without parole.

Each of the six other cases is being appealed. One of those, involving James F. Cahill 3rd, a Syracuse man who poisoned his wife as she was recovering from a beating he had inflicted with a baseball bat, is to be heard by the Court of Appeals tomorrow.

Several cases have shown the extraordinary time and resources consumed by death penalty battles, the Queens district attorney, Richard A. Brown, said. Death-penalty cases in the state almost always involve skilled defense lawyers, and courts are meticulous about reviewing every legal point.

Mr. Brown said prosecutors had come to understand that the suffering of murder victims' relatives is often prolonged in death-penalty cases because of the years of legal warfare. He said prosecutors were also keenly aware of the drain on their time and energy and the cost to the state.

"Particularly at a time of fiscal crisis," Mr. Brown said, "it is very difficult to justify taking experienced prosecutors away from handling other violent felonies."

Across the country, other state prosecutors appear to be seeking the death penalty less often than they did in the 1990's, said Richard C. Dieter, executive director of the Death Penalty Information Center, a group that says it is critical of the way the death penalty is carried out but takes no position on whether capital punishment should be permitted. Mr. Dieter said that evidence in Ohio, California, North Carolina and other states showed that state prosecutors have been seeking death less often.

"There is definitely a trend in other states, and the time line is very much the same" as it is in New York, with state prosecutors filing sharply fewer death penalty cases than they did in the late 1990's, Mr. Dieter said.

In a contrast to the trend in many states, federal prosecutors appear to be seeking the death penalty more often than they did in the past, though federal death-penalty cases account for only a tiny portion of all capital punishment cases in the country. Seeking consistency in the application of the federal death penalty, Attorney General John Ashcroft has ordered some United States attorneys to seek executions in cases when they had recommended against it. Federal prosecutors in New York and Connecticut have been among those whose recommendations were overruled by Mr. Ashcroft.

In many cases in which New York State prosecutors sought the death penalty, plea bargains and other resolutions have often meant that defendants ended up with sentences of life without parole anyway. Even in the cases that proceeded to trial, the majority have ended without juries voting for execution.

In one Queens case in 1998, a petty drug dealer, James Allen Gordon, was convicted of a rampage of robbery, rape, torture and murder. But the jurors voted against execution, apparently because of accounts of the man's childhood abuse by his mother, a heroin addict. In May, a Westchester County jury convicted Dennis Alvarez Hernandez of fatally stabbing his girlfriend and two of her children, ages 7 and 4, but deadlocked on whether to impose the death sentence. A judge later imposed a sentence of 115 years to life.

Of the 18 death-penalty cases that have gone to trial in New York, 7 ended with death sentences, 7 ended with jury verdicts of life without parole or the equivalent and, after plea deals or jury deadlocks, 4 offenders were sentenced by judges to life in prison.

Some prosecutors said that pursuing a sentence of life without parole from the outset could be more efficient. Helping them make such decisions, they said, is a sense that the death penalty is not the volatile political issue that some expected after the law was passed with the strong support of Gov. George E. Pataki.

Some prosecutors, like the Brooklyn district attorney, Charles J. Hynes, said they made each decision about whether to seek death based on the facts of the case, and did not consider the statewide statistics meaningful. Sean M. Byrne, the executive director of the state's Prosecutors Training Institute, which works with district attorneys on death-penalty issues, said the possibility of execution often motivates a defendant to seek a sentence of life without parole.

But the district attorney in Rochester, Mr. Relin, said prosecutors also had an incentive to try to avoid trial: they realize in plea negotiations how hard it can be to persuade a jury to vote for death.

"Even if you have a strong feeling in favor of the death penalty, as I and some of my colleagues do," he said, "when a defendant wants to plead guilty for life without parole, you have to look very carefully at that because that may end up being a jury verdict after an eight-month trial process."

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