Choosing the Death PenaltyAuthor(s): Charles J. HynesSource: Litigation, Vol. 24, No. 1, CHOICES (Fall 1997), pp. 25-26, 75Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759958 .

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Choosing the Death Penalty

by Charles J. Hynes I do not believe in the death penalty. And making choices about life and death is never easy. But I am a prosecutor and I must choose whether to seek the death penalty. In my 25 years of public service, no decision has been more ago? nizing.

New York state reinstituted the death penalty in 1995. Since that time, as Brooklyn district attorney, I have sought the death penalty in three murder cases, opting to seek life in

prison without parole in ten other cases.

Choosing the death penalty has placed my long-held per? sonal position in sharp conflict with my obligation as a pros? ecutor to enforce a law. As a Brooklyn prosecutor, I am no

stranger to crime. I have had first-hand knowledge of some of the most gruesome murders committed in New York City. But I believe that the state is not justified in taking a human life as punishment for a crime when other means of punish?

ment can be readily employed. I have long advocated life without parole as an alternative to the death penalty, and I continue to take that view.

I do not believe, however, that the state may never take life. There are situations when no suitable alternative is available. Both in war and in law enforcement, a life may be taken when the use of deadly force is required.

But capital punishment is the deliberate, methodical use of

deadly force to accomplish a penalogical objective that can be accomplished by no other means. The deliberate extin?

guishment of human life by the state is degrading to human

dignity. By choosing death rather than a nonlethal alterna? tive, we employ the same inhumane conduct that we seek to

prevent. We send the message that death is acceptable if we are the ones who are throwing the switch or administering the lethal injection. We reinforce the idea that it is permissi? ble to kill another human being if it is done for the "right" reasons.

If the deliberate taking of human life has any effect at all, it more likely tends to lower our respect for life and to bru? talize our sensibilities. To paraphrase John Donne, any man's death diminishes us because we are involved in mankind.

Charles J. Hynes is the district attorney of Kings County, New York.

A second reason for my opposition has to do with the

unequal application of the penalty. History teaches that it has often been applied disproportionately and inflicted arbitrar?

ily upon poor people, people of color, uneducated people, and people with emotional or mental problems. Although some affluent whites will be executed from time to time, the

overwhelming majority of those put to death will be people who cannot afford the best defense lawyers to plea bargain their cases or convince juries to return verdicts on lesser

charges. These people cannot evoke the sympathy of juries and judges, as more affluent and successful members of soci?

ety can.

No amount of hearings and appeals will change that the death penalty will fall most heavily on the most vulnerable and most underprivileged members of our society. As Justice

Thurgood Marshall wrote in Furman v. Georgia, 408 U.S. 238 (1972), so long as the capital sanction is used only against the forlorn, easily forgotten members of society, leg? islators will always be prepared to keep such a law on the books.

Finally, we must face that there is no evidence that having a death penalty on the books prevents homicides or other vio? lent crimes. In fact, statistics show that two years before the re-enactment of the death penalty in New York state, the murder rate dropped significantly.

A death penalty is extremely expensive to administer, involving years of litigation before an execution takes place. It also poses a risk that a person who did not commit the crime or a person who has a valid legal defense may be put to death before his or her innocence can be established or his or her defense can be verified.

If we are serious about preventing crime, our legislators should enact life sentences without parole for all criminals convicted of homicide and for people who push drugs on children. Let them stiffen the penalties for the sale of unli? censed assault rifles and semi-automatic pistols. Let them fund more treatment for drug addicts who desperately need

help. Let them fund more education programs in the schools to reduce the demand for drugs.

Those are my views. But the legislature of my state took a

Litigation Fall 1997 Volume 24 Number 1

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different view. When it re-enacted the death penalty in 1995, the New York state legislature made it applicable to a limited

category of cases, including the murder of a police officer, a correctional officer, a judge, or a witness to a crime; a con? tract killing; a murder committed during the course of certain felonies; multiple homicides; a homicide intended to inflict torture on the victim; or a homicide committed by a defen? dant who had previously been convicted of murder (New York Penal Law ? 125.27).

The law also provided that before a jury could direct the

imposition of a sentence of death, it would have to find

beyond a reasonable doubt, at a separate sentencing pro? ceeding, that aggravating factors set forth in the statute sub?

stantially outweighed mitigating factors set forth in the statute. The aggravating factors include the facts of the crime itself, and whether the crime was committed in furtherance of an act of terrorism, or whether during the previous 10

years the defendant was convicted of two or more serious violent felony offenses.

Mitigating factors include the absence of a significant his?

tory of violent offenses; mental retardation or impaired men? tal capacity; mental or emotional disturbance due to alcohol or drugs; duress or domination by another person; minor par? ticipation in the offense; or any other circumstance concern?

ing the crime, the defendant's state of mind or condition at the time of the crime, or the defendant's character, back?

ground, or record that would be relevant to mitigation. Under the statute, district attorneys throughout the state

must determine those cases in which the death penalty should be sought. Fortunately, the legislature included a 120

day waiting period, recognizing that the public's interest in an effective and constitutional death penalty law would not be served by an uninformed rush to judgment. The waiting period allows prosecutors to perform a careful and compre? hensive analysis of each death penalty eligible case and

gives them the option to seek life without parole?a sentence

made available in New York for the first time in 1995, when the death penalty was re-enacted.

The law also provides that at any time during the course of a capital case, even after conviction of the crime, a prosecu? tor may determine that the death penalty will not be sought. In such cases, the court may sentence the defendant to life without parole or to a minimum sentence of 20 to 25 years and a maximum sentence of life imprisonment.

The first issue for me was how to reconcile my personal beliefs with the law, which I was sworn to uphold. Could I

simply never seek the death penalty, regardless of the crime? I agonized, but concluded that I must follow the law.

The next choice was more practical. How would I decide which cases merited the death penalty? Since there had been no death penalty in New York state for nearly 25 years, nei? ther I nor any members of my staff had any experience. So

we created a procedure. To analyze each potential capital case under the strict crite?

ria of the New York statute, I established a committee of nine senior staff members, each with at least 10 years of prosecuto rial experience. This committee, composed of men and women of diverse ethnic backgrounds, evaluates each case and recom? mends to me whether to seek a sentence of death or life with? out parole. They examine the facts of the crime, the back?

ground of the defendant, the impact of the crime on the victim's

family, and the aggravating and mitigating circumstances that a

jury would consider during the punishment phase. As part of the review process, the defense attorney is

invited to make a presentation to the committee. And, although the law does not permit the family of the victim to

give an impact statement at sentencing, the committee gives the family of the victim an opportunity to present informa? tion about the deceased and the impact of the crime on the

family. The committee is also empowered to seek additional information from the assistant district attorneys who are

investigating the case if the committee believes it does not have sufficient information to make its recommendation.

After this analysis has been completed, the committee rec? ommends to me whether to seek a sentence of death or a sen? tence of life without parole. If I find that there is a need for

more information, I will send the matter back to the commit? tee for further investigation. It is only when the committee has finished its inquiry to my satisfaction that I will begin my review to determine whether the committee's recommenda? tion should be followed.

In ten cases I have decided to seek a sentence of life with? out parole; in three other cases, I have decided to seek a sen? tence of death.

In one of the death penalty cases, the defendant is accused of kidnaping and robbing his victim and then murdering him in the trunk of his car. The defendant allegedly disposed of the victim's body in a particularly brutal manner, making it

impossible to recover the victim's body. In the second case, the defendant is accused of wounding his victim with a gun, robbing him of a gold chain, and then mortally wounding him with more shots as the victim lay helpless on the ground and women and small children stood watching nearby. In the third case, the defendant is charged with the execution

style murder of three persons in an after-hours club. Reach?

ing a decision in those cases was an extraordinarily difficult and anguishing experience. But, in my judgment, the evi? dence and the surrounding circumstances fell within the

(Please turn to page 75)

Litigation Fall 1997 Volume 24 Number 1

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tice, when the only hope is to appeal to

people's better nature. It is a tough job, which is why we usually try to avoid it with a challenge to the array or a

change of venue instead.

10. You can't reason down from statistics.

Jury surveys can give you a lot of information about local attitudes that

will help you frame the issues in the case. You may learn, for example, that 65 percent of the potential jurors in

your area are mistrustful of the big cor?

poration you represent. This ought to tell you that you have a

serious credibility problem you need to be concerned about. Maybe it is a justi? fication for doing a special question? naire that will help identify which

potential jurors have this attitude. But this survey does not tell you that

65 percent?11.7 people out of the

panel of 18 you are talking to?have this attitude. It might be all or none or

anywhere in between. When you have a reliable survey, you can apply the num? bers with some confidence to larger groups. But the smaller the group, the less reliable the number.

11. Ask, don't tell. Listen, don't talk. Feel, don't think.

The Master Benchers of one of the American Inns of Court in a large Mid? western city put on a demonstration of

sophisticated jury selection techniques. The lawyers did all the talking. Other

than an occasional yes or no, none of the jurors said anything.

After the demonstration, there was a serious debate about which jurors should be excused. The discussion went on for some time until one lawyer said that since the jurors didn't really have a chance to say anything, no one knew how any of them would look at the case.

There is a natural tendency for

lawyers to do a lot of talking. Sure, there are some important

things you need to do on voir dire. You need to introduce your case and your client in your initial snapshot of the

facts. You may need to introduce some

key ideas that everyone will have to understand. But this is your one chance to hear the jury talk before they have their final word and deliver their verdict.

But how do you get them to talk? Ask. Get each one to tell you a little

about themselves. What they like to do, what's important in their lives, what

they like to read, what they watch on television.

Share your concerns about the case and invite their responses. Ask how

they feel about the central issues in the case. Are they suspicious of personal injury cases? Do they think there are too many lawsuits?

If you represent a motorcyclist who was hurt in an accident, ask how they feel about motorcycles and motorcy? clists.

If you represent the electric power company, ask if the power company ever did something to them like making a mistake on their bill or improperly turning off their lights.

Let them know it's all right to talk about these things. What? You think it may be better to

shut this line of questions down lest someone say something nasty about the

power company? It's a lot better for them to say how they feel when you can find out about it than it is to wait for

jury deliberations where they will write it in their verdict.

Encourage them to talk about their emotions by using words like "feel," "react," and "respond" instead of words like "think," "reason," or "analyze."

You want to be in touch with their feel?

ings, not their rationalizations.

Finally, what's the good of all this if

you can't really pick a jury? Besides giving you an idea how to

exercise your peremptory challenges, you need to know who you are talking to. That's the only way you will know how to present your case so it will speak to the

people who will be deciding it.

12. Keep it short.

Many jurors are so bored by voir dire that they are sick of the case before it starts.

That is our fault, and it is unforgiv? able. It is one of the reasons why we are

losing lawyer-conducted voir dire in a number of states as well as in most fed? eral courts.

There are some things we can do about it. Use questionnaires to speed up the process. Learn to work the panel as a whole instead of asking each potential juror the same series of questions. Stop trying to abuse the process by arguing the case before it starts. Be willing to

work within reasonable time limits. It's better to have only an hour or so

than no time at all. 10

Death

Penalty (Continued from page 26)

legal criteria requiring me to seek the death penalty under New York law.

There was no magic formula in decid?

ing whether to seek a sentence of death. It was based on meticulous research of the facts and circumstances by the attor?

neys in the homicide bureau. It was based on an exhaustive review by my committee. It was based on information

supplied by the defense attorneys and the families of the victims. It was based on

my own analysis of each case and my obligation to uphold the law.

Regardless of personal feelings, an elected district attorney bears the

responsibility of deciding whether a

first-degree murder case will become a

capital case. I have tried to institute a

fair, objective, and comprehensive process to make that decision. But

despite this process, I am forced to con? sider that I may be subjecting another human being to the agonizing conse?

quences of the death penalty. A very heavy burden. Q

Litigation Fall 1997 Volume 24 Number 1

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