Gotham Gazette

The Place for New York Policy and politics

Capital Punishment, Parole, And More


The two men convicted in late June of killing three people and wounding two others in an execution-style murder and robbery above midtown's Carnegie Deli have been sentenced to life in prison. Each murder count carries a prison term of 25 years to life. The two counts of robbery carry 15 years each, as does the count of criminal possession of a weapon. All the terms will be served consecutively.

The Carnegie Deli slayings had focused attention on the anti-death penalty stance of Manhattan District Attorney Robert Morgenthau, who refused to prosecute the triple murders as death penalty cases. Arguing after the trials that there had been insufficient evidence to prove that a single shooter fired the shots, he said that "The statute's pretty narrow. People who are for the death penalty don't want to understand that. We couldn't prove who the shooter was and we can only charge the actual person." Prosecutor David O'Keefe said the two would have to serve 116 years before being eligible for parole.

Addressing the killers during sentencing, the father of one of the victims said, "The only thing I regret is this isn't Texas." Texas is the country's foremost death penalty state.


During much of the summer the future and fairness of New York's death penalty has been discussed in the news, on radio and television talk shows, and at academic conferences. Where it has not been discussed above a whisper is in the state's gubernatorial campaign. You would hardly know from following the campaign of George Pataki, our sitting Republican governor, that he is presiding over the state today in part because he strongly supported the death penalty in 1994 when then-Governor Mario Cuomo opposed it. Nor would you know this from following the campaigns of Democrat Carl McCall or even Democrat Andrew Cuomo, son of the anti-capital-punishment former governor.

Quiet as the gubernatorial campaign has been, the courts at all levels have been unusually active. The U.S. Supreme Court handed down two momentous decisions -- one banning the execution of retarded criminals, the other saying juries must find all facts leading to a death sentence.

Neither applied to New York State's shrewdly written law, which already forbade execution of the mentally retarded and which already placed capital punishment squarely in the hands of juries.

Then Federal Judge Jed Rakoff, sitting in the Southern District in Lower Manhattan, declared the federal Death Penalty Act unconstitutional -- the first ruling [pdf] to do so -- citing "an undue risk of executing innocent people" and various procedural problems, most of which New York State is thought to have avoided in the implementation of its statute.


New York's own Court of Appeals was not far behind the feds, throwing out the death sentence of Darrel K. Harris, who had murdered three acquaintances in 1996, a year after Governor Pataki succeeded in bringing the death penalty back to New York.

Harris had been tried under the 1995 law, whose flawed plea-bargaining provisions encouraged defendants to plead guilty rather than risk a death sentence after a trial. Because these provisions unfairly threatened capital punishment to any defendant exercising a citizen's constitutional right to a jury trial, they were struck down in Hynes v. Tomei in 1998, right after Harris's conviction.

Writing for the Court of Appeals in early July, Judge Richard Wesley, a Pataki appointee, noted that Harris's guilt was established beyond a reasonable doubt. Still, wrote Wesley, "All seven of us have concluded that there is no reason to retreat from Hynes; all of us agree that the statute at the time of defendant's trial impermissibly discouraged defendant's assertion of his Fifth and Sixth Amendment rights. Accordingly, the trial court could not constitutionally impose the sentence of death on this defendant."

The facts of the case are undisputed, even by Harris, then a 39-year-old decorated, former corrections officer. He had no criminal record and had been honored in his job for saving a fellow officer during a prison riot. Nonetheless, in the early morning of Dec. 7, 1996, he murdered two men and a woman (a mother of five children) at Club Happiness in Brooklyn's Bedford-Stuyvesant neighborhood. The jury had found him guilty of first-degree murder and voted for death by lethal injection, rather than life without parole.

Harris's case is being sent back to Brooklyn for resentencing by Acting Supreme Court Justice Anne Feldman, who can sentence him to life without parole or to something between 20 to 25 years and life. The possibility that this murderer of three people might some day walk free from prison has not yet been widely commented upon.


Parole for violent felons has not been a major political issue since the summer of 1998 when, despite initially strong Democratic opposition, the governor and the Republican leadership secured passage of Jenna's Law, which eliminated parole for first-time violent felons.

Now the imminent release of Robert Rodriguez, the landlord of the Lower Manhattan couple who disappeared in 1997, is putting parole back in the news. Rodriguez had refused to cooperate in the investigation of the couple's disappearance, according to the NYPD. Nonetheless, the cops succeeded in getting him on overlapping state and federal tax and credit card fraud. Since he was not convicted of a violent felony, he is being released early, and over angry objections from the NYPD and the Manhattan D.A.'s office. Barbara Thompson, a spokesperson for the Manhattan D.A., said, "Obviously, we objected to his parole, and we recommended that he serve the maximum sentence, as we did at his sentencing." He is being released Aug. 30, 2002. Were he not being paroled, he would have been released on Aug. 30, 2004.

Another recent Manhattan parole case is that of Daphne Abdela, a young woman who in 1997 helped cut the throat of a friend in Central Park. The parole board denied her release because of her poor behavior in prison as well as a "total disregard for human life." She was eligible for parole under pre-Jenna's Law rules because the murder occurred in 1997. Under Jenna's Law she would have to serve 6/7 of her sentence.

The two state laws restricting parole have dramatically changed the parole numbers. During fiscal 2001, only 21 percent of inmates convicted of violent felonies who came up on parole were released -- as opposed to fiscal 1992, nearly the end of the Cuomo administration, when 54 percent of the 7,227 the violent felons who came up were paroled. The state Office of Criminal Justice argues that Pataki's parole policy has been one of the factors in reducing the state's violent crime by some 43 percent since the Cuomo administration.


Manhattan Supreme Court Justice Dorothy Cropper's insistence that three undercover narcotics detectives give their names before testifying in criminal court has landed her in an ugly dispute with the NYPD. Obeying an order from Police Commissioner Raymond Kelly, the undercover detectives defied Cropper's instruction, which led her to toss out all their evidence and testimony in a felony drug case. This seems an odd case to go to war over since the defendant is accused of selling "$10 bags of cocaine" to undercover cops.

Still, there are arguments on both sides. The right to confront one's accuser is one of the oldest and most fundamental common law rights, and should be abrogated only for the most serious reasons. Further, say defense lawyers, the practical ramifications of the cops withholding their identity suggests to a jury that they are in danger from the defendant. As defense lawyer Robert Levy notes, "Anytime the courts increase security beyond normal, this gives an aura that something is wrong. Unless there's a showing of special circumstances, such as an important ongoing investigation that's being jeopardized, the simple status of an undercover cop in what is not even a big case does not deserve special treatment."

The NYPD argues that identifying undercover cops in court will undermine the NYPD's ability to fight crime and will put at risk the lives of the undercover detectives who are involved in larger investigations. Brooklyn D.A. Charles Hynes wrote a letter to the police commissioner saying he would dismiss a drug prosecution rather than endanger undercover narcotics cops by making them give their names in public. Queens D.A. Richard Brown said that in his 11 years as D.A. he has not seen any instance in which a court did not allow an undercover to testify by number rather than by name.


The vicious, nearly fatal assault of Abner Louima in the bathroom of a busy Brooklyn precinct house on August 9, 1997, brought the meaning of police brutality to a graphic new low. The main assailant, Justin Volpe, is serving a 30-year sentence in federal prison. But he was directly aided by a second police officer, identified (though not named) by Louima as the driver of the patrol car that brought him in. This second cop first beat Louima and then pinned him down while Volpe tortured him. Volpe was also indirectly aided by the dozens of police officers on duty that night, many of whom had to know that a brutal crime had been committed in their precinct house. Yet despite several trials and the deployment of the full resources of the federal government only one person,Volpe, is now in prison for the Louima assault.

Federal prosecutors believe the second cop to have been Volpe's partner (and driver of the patrol car) Charles Schwarz. But the jury in Schwarz's recently completed trial in federal court in Brooklyn found him guilty of only one count of perjury. The jury deadlocked on another perjury charge and on the two crucial civil rights charges that justified the federal prosecution in the first place.

The jury's foreman, Russell Birnbaum, wrote a front-page account in the New York Observer of the jury's deliberations. He said one juror had championed Schwarz's innocence from the start, and had not deliberated fairly with the other 11 jurors, all of whom were congenial and serious. She forced the jury to deadlock on the more serious civil rights charges, and would only agree to find Schwarz guilty on a lone perjury charge.

U.S. District Court Judge Reena Raggi has scheduled a retrial of Schwarz on the civil rights charges and the other perjury charge for September 23. Resisting defense arguments that they needed time to raise money to pay for the defense, Judge Raggi said that jury selection after a mistrial typically starts the next day. She is giving them six weeks, with the initial questioning of jurors to begin September 9.


The NYPD has been through a lot this year, and now it must contend with an 88-page draft report from McKinsey & Company, the business consulting firm, that it suffered from lapses in leadership and coordination on September 11. Using interviews with more than 100 department commanders as well as interviews with some 700 police officers of different ranks, McKinsey says that many cops did not know who was in charge after the attack, and that many officers in the field acted without direction from field commanders.

The New York Times quoted a senior police official who noted that 25 percent of the officers interviewed by McKinsey were unsatisfied with their supervision that day. The official said that on most days more than half of the department's officers would say the same thing.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

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