May 5, 2002

For Death Penalty, a Day of Reckoning

By WILLIAM GLABERSON

 Then the judges of New York's Court of Appeals take their seats tomorrow to review a death sentence for the first time in 18 years, they will be entering a new era that could test alliances among them and may thrust them into a spotlight of controversy they escaped nearly a decade ago.

The case is landing before a court that has become increasingly favorable to prosecutors and unified in the wake of harsh criticism from Gov. George E. Pataki and others in the mid-1990's.

But because capital punishment is such a deeply personal issue, some experts who follow the court say the philosophical leanings and political loyalties of the three Democrats and four Republicans on the court � the highest in the state judicial system � may emerge more than they do in other cases. Compromise may be tougher to come by.

 "This is the day of reckoning," said Vincent M. Bonventre, a professor at Albany Law School, who follows the court. "The disagreements that are almost always there but don't come to the surface in other cases are going to surface in these cases."

 The case on tomorrow's docket involves Darrel K. Harris, who killed three people in Brooklyn in 1996. He is challenging his death sentence on both narrow procedural grounds and broader constitutional ones.

Since so few Court of Appeals cases have concerned death penalty issues in the last two decades, some experts say it is difficult to know precisely what the judges' views on capital punishment are.

 Partly to blunt criticism that the court protected criminals, several of the judges have seemed to suppress liberal instincts in recent years, Mr. Bonventre and other legal experts said. More decisions appear to be reached by consensus in what some experts see as the judges' effort to present a solid front against critics.

 "The court increasingly has a reputation of being conservative on criminal justice and of being united in their opinions," said James A. Cohen, a criminal law expert at Fordham University School of Law.

 One mark of the complexity of the death penalty issues is that the judges have scheduled more than four hours of argument tomorrow, which a court official said was the longest argument at the court in one case in at least a quarter-century. But the judges seemed unsure that even that would be enough; the court sent a message to lawyers in the case not to leave Albany Monday night, in case the judges need to call them back for more arguments.

 Analysts of the court say the judges have offered a few clues about what their positions may be.

 Three of the judges were appointed by Gov. George E. Pataki, a Republican who some lawyers say has appeared to seek judges who will sustain the death penalty law that was one of his main campaign pledges when he first ran for governor. Four of the judges are appointees of the governor's Democratic predecessor, Mario M. Cuomo, who was known for vetoing the death penalty bills that the Legislature passed annually.

 Partly because of the arrival of the Pataki appointees, defense lawyers say the court has been growing increasingly unsympathetic to arguments from criminal defendants.

 In a 5-to-1 decision in 1999, for example, the judges approved the conviction of a man in a series of felonies even though the trial judge did not hold a hearing to determine if he was competent to stand trial. The judges approved that approach even though a prosecution psychiatrist said the man believed a police listening device had been surgically implanted in his penis and that he was subjected to governmental experimentation.

 At least two of the Pataki appointees are considered reliable supporters of capital punishment. Judge Victoria A. Graffeo was a lawyer who worked for Republicans in the Assembly before she rose rapidly in the Pataki administration. And Judge Richard C. Wesley is a conservative who voted for the death penalty as an assemblyman in the 1980's. Once, referring to Lemuel Smith, whose death sentence was overturned by the court in 1984, Mr. Wesley said the penalty was necessary because of "the animals like Lemuel Smith who have no respect for human dignity." Mr. Smith, a murderer, was serving a life sentence when he killed a prison guard.

 Some lawyers say the third Pataki appointee, Albert M. Rosenblatt, may be more difficult to read. He is a former Dutchess County prosecutor and judge, who imposed the last death sentence in the state � in Mr. Smith's case. That case led to the 1984 Court of Appeals decision overturning the remaining part of the state's last death penalty law.

 At the time, Judge Rosenblatt suggested he might have had some reservations but was willing to go along with the death penalty passed by the Legislature. He imposed the sentence, he said, "hoping that what society has decreed is philosophically correct."

 On the Court of Appeals, Judge Rosenblatt has often joined in opinions favoring prosecutors. In December, he voted with the majority in a 4-to-3 decision that approved police officers' stops of drivers, ostensibly for traffic infractions, when their real motivation was to investigate some other crime. 

The court followed a United States Supreme Court ruling, disappointing defense lawyers who had argued that the case was an important opportunity for the judges to declare that the New York State Constitution gives more protection than the United States Constitution does.

 Norman A. Olch, a professor at John Jay College of Criminal Justice who studies the court, said three of the Cuomo appointees on the bench might be receptive to various arguments by death penalty opponents.

 Judge Carmen Beauchamp Ciparick, the first Hispanic on the court, came to statewide attention with an important decision expanding abortion rights for poor women that she wrote while a trial judge. Judge Howard A. Levine is a Republican expert on family law and juvenile justice who had a reputation for independence when Governor Cuomo selected him.

 George Bundy Smith, the court's only black judge, is often described by lawyers as a mainstream judge who is open-minded. One legal expert called Judge Smith a wild card on the death-penalty issue.

But in general, most legal experts see a pro-prosecution drift and some describe the court as lacking any judge who is a consistent liberal.