The New York Times

September 14, 2004

Death Penalty Is Not Option in Slaying of 2 Detectives


Brooklyn prosecutors filed first-degree murder charges yesterday against Marlon Legere, the 28-year-old man charged with killing two police detectives last week. But they said they could not seek his execution because no capital punishment law is in place, signaling a sharp shift in the status of the death penalty in the state.

The decision on charges in the double killing was the first to crystallize the full effect of a June ruling by New York's highest court that said the state's death penalty law was flawed. Some prosecutors around the state had argued after the decision that they could proceed with new capital cases anyway, under the assumption that the Legislature would address the ruling quickly by enacting a new death penalty law.

But no new law was passed, and since the Brooklyn case is one that death-penalty proponents say is the very definition of a capital crime, the impact of the Court of Appeals decision emerged clearly yesterday.

"There is no viable death penalty in New York right now," the Brooklyn district attorney, Charles J. Hynes, said through a spokesman.

More than any case since the June ruling, lawyers said yesterday, the prosecutors' decision in Brooklyn showed that, in effect, there is a moratorium on the death penalty in New York.

In a Brooklyn courtroom jammed with anguished police officers, a prosecutor, Kenneth Taub, told Judge William L. McGuire Jr. of Criminal Court that the prosecutors would not seek execution, and the judge agreed that the penalty was not available.

Mr. Taub, who said he knew both detectives who were slain Friday night, said the evidence of Mr. Legere's guilt was overwhelming. "I cannot imagine any circumstances whatsoever," he added, "that would not result in this defendant's not spending the rest of his life in prison."

Mr. Legere, slumped and strapped in a wheelchair during the brief arraignment, wore a blue hospital gown. He has been treated for bullet wounds in both legs that the police said he had when officers found him 13 blocks from the street where Detective Robert Parker, 43, and Detective Patrick Rafferty, 39, were gunned down.

A not-guilty plea was entered for Mr. Legere. He did not speak.

Some of the officers expressed bitterness that the death penalty was not applicable. "If anything was a capital case, this was," said Patrick J. Lynch, the president of the Patrolmen's Benevolent Association.

In its 4-to-3 ruling on June 24, the Court of Appeals overturned the death penalty in the case of a Long Island killer. The court said the law violated the State Constitution by requiring judges to tell juries that if they were deadlocked, the judge would impose a sentence that would leave the convicted killer eligible for parole. The court said such instructions could coerce jurors to vote for execution.

"Under the present statute," the court majority said, "the death penalty may not be imposed."

Some prosecutors argued after the decision that if the Legislature enacted a new death penalty law, it could be applied to murder cases that arose after the court's June 24 decision. Just days after the June ruling, the district attorney in Troy, N.Y., filed a notice that she was seeking the death penalty against two men charged in the killing of a police informer.

Other prosecutors said they were continuing to evaluate new cases as if they could be eligible for capital punishment. Mr. Hynes said through a spokesman last month that his office would "proceed as usual with new cases, which could result in seeking the death penalty."

In recent weeks, prosecutors and defense lawyers said yesterday, a consensus has been growing around the state that because the Legislature has not adopted an amended law, there is effectively a moratorium on capital cases.

"What's going on in New York right now is what's going on in the rest of the country, which is a reassessment of whether it is worth it to have a death penalty," said Jeffrey L. Kirchmeier, chairman of the capital punishment committee of the New York City Bar Association.

Mr. Hynes's spokesman, Jerry Schmetterer, said lawyers in the office evolved an understanding of the death penalty status after research and analysis over recent weeks.

The Republican-controlled Senate passed a new death penalty law last month that included a provision saying the change was retroactive, but the Democratic-controlled Assembly did not act on it. Death penalty lawyers say it is unclear whether it was legal to make such a law retroactive.

Gov. George E. Pataki was a major proponent of the New York capital punishment law, which was passed in 1995. In response to questions about Mr. Hynes's conclusion that the state currently has no death penalty, a spokeswoman for the governor, Lynn Rasic, read a statement that seemed to agree.

Referring to the Senate bill, that statement said, "The sooner the Assembly acts on this bill, the sooner we will have a capital punishment law on the books that can be used to prevent dangerous killers from getting back on the streets."

Andy Newman contributed reporting for this article.