After 5 months, the death penalty trial of Ronell Wilson had entered its last few minutes when a federal prosecutor presented some parting thoughts for the jurors to consider as they deliberated.
If Mr. Wilson, who had executed 2 undercover police officers on Staten Island, truly accepted responsibility for the killings, why had he not pleaded guilty? And if Mr. Wilson truly felt remorse for his actions, why had he not taken the witness stand to say so?
It is not known whether those statements contributed to the jury's decision to issue the 1st death sentence in New York in more than a half century. But what is clear is that this week, 3 1/2 years after the sentence was issued, those statements have spared Mr. Wilson from lethal injection, at least temporarily.
A 3-judge panel on the United States Court of Appeals for the Second Circuit decided on Wednesday to vacate the death penalty sentence Mr. Wilson received in Federal District Court in Brooklyn, citing the prosecutor's statements in the penalty phase that they said violated the defendant's constitutional right.
The decision by the appeals court, which ruled 2 to 1 in favor of Mr. Wilson, prompted surprise from some legal experts, who wondered how a respected veteran prosecutor made such a simple procedural mistake and why the judge allowed his statements to stand despite an objection by the defense.
"The prosecutor is not allowed to advance his or her case by exploiting the fact that the defendant did something that he has every constitutional right to do," said Eric M. Freedman, a professor of constitutional law at Hofstra University. "If it were permitted, the constitutional right would be undermined."
The central issue in the case was whether the prosecutor, Jack Smith, was wrong to invoke the decision by Mr. Wilson to use his Sixth Amendment right to stand trial and his Fifth Amendment right to refuse to testify. Mr. Smith cited those rights to call into question Mr. Wilson's statement of remorse that he was allowed to read to jurors, over the protest of prosecutors, without facing cross-examination.
"He has an absolute right to go to trial, put the government to its burden of proof, to prove he committed these crimes, but he can't have it both ways," Mr. Smith said in part. "He can't do that, then say, 'I accept responsibility.'"
A lawyer for Mr. Wilson, Ephraim Savitt, immediately objected, but was overruled by Judge Nicholas G. Garaufis. The judge also denied Mr. Savitt's request after the summation to remind the jury that "it's not the burden of the defendant to take the stand or to be subjected to cross-examination."
Cynthia Hujar Orr, who is the president of National Association of Criminal Defense Lawyers and works on death penalty cases, said she was unable to understand how the mistake occurred. "We live in a country where, if the government wants to take our lives, they must do it under their own steam, and we are not required to help them," she said. "You cannot punish someone for invoking their constitutional rights."
Mr. Smith, a former prosecutor at the International Criminal Court at The Hague who now heads the public integrity division of the Justice Department, declined to comment.
Morris J. Fodeman, who worked with Mr. Smith on the prosecution team and is now in private practice, said although "a prosecutor can't normally argue that a defendant is guilty because he refused to take the stand or that he should be punished more severely because he elected to go to trial," in a penalty phase trial, "the defendant had the burden of proof of establishing that he was remorseful and that he accepted responsibility. When he argued that his unsworn, uncross-examined statement proved he was remorseful, the government should be allowed to say, 'Don't credit it because it wasn't tested through cross-examination.'"
The infrequency of death penalty cases in New York may leave lawyers and judges vulnerable to procedural missteps, said Scott H. Greenfield, a criminal defense lawyer who wrote about the case on his legal blog Simple Justice.
"In other parts of the country where they are more used to death penalty, it's unlikely that these kind of issues would arise," he said. "Around here without much experience everyone is basically trying to feel their way through it."
Source: New York Times, July 3, 2010
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