The New York Times

Wednesday, August 6, 1997

New York Judge Rejects Death Penalty Plea Deal

By JOSEPH P. FRIED

The defendant in the first death penalty case brought by a New York City prosecutor since the state reimposed capital punishment has agreed to plead guilty to murder and serve at least 50 years in prison. But a judge has rejected the deal, saying that the plea bargain provisions of the state's death penalty law are unconstitutional.

In a ruling, the judge, Justice Albert Tomei of State Supreme Court in Brooklyn, found that by guaranteeing that a defendant could avoid the death penalty by pleading guilty the capital punishment law effectively penalized a defendant who exercised his right under the United States Constitution to a jury trial and risked a death sentence. "What is forbidden is a scheme, like New York's, in which the possibility of death only arises from the defendant's exercise of his right to a jury trial," Justice Tomei declared.

Unlike most other states' death penalty laws, which allow a death sentence even if a defendant pleads guilty to first-degree murder, New York's law specifically prohibits the death penalty in such pleas.

Justice Tomei also suggested that the plea provisions of the death penalty law effectively allowed prosecutors to coerce guilty pleas from capital defendants and win their acceptance of harsh sentences like life in prison without parole. In the case in Brooklyn, the defendant, Michael Shane Hale, agreed to serve a term of 50 years to life. Mr. Hale, 25 years old, is charged with murdering his companion, Stefen Tanner, 62, in October 1995 and cutting up his body with a saw. Prosecutors say the two appeared to be lovers but that their relationship turned brutally bitter when Mr. Tanner became angry over the defendant's excessive purchases on a credit card that Mr. Tanner gave to the

younger man and whose charges Mr. Tanner paid.

The Brooklyn District Attorney, Charles J. Hynes, who became the first New York City prosecutor to seek the death penalty under the new law, has appealed the ruling. "District Attorney Hynes believes New York's death penalty law is constitutional and carefully crafted to protect a defendant's right to due process," Patrick Clark, a spokesman for Mr. Hynes, said.

In the appeal filed by Mr. Hynes's office, the prosecutors handling the case said the ruling violated "well-settled principles of constitutional law that a prosecutor may grant discretionary plea bargains to a capital defendant."

Prosecutors noted that two other judges in the state had upheld the plea provisions of the death penalty statute, and argued that Justice Tomei's ruling, if upheld, would impose "what constitutes a uniform prohibition on the use of plea bargaining" in any case in which a district attorney has said he would seek the death penalty.

Justice Tomei declared only the plea provisions of the law unconstitutional, leaving the rest of it in place.

Prosecutors in Mr. Hynes's office said that Justice Tomei had told officials that they could avoid the constitutional problem he found by withdrawing their intention to seek the death penalty before Mr. Hale formally entered his guilty plea. But, in their appeal, the prosecutors said, "Such a solution is no solution at all."

They noted that once they withdrew their notice of intent to seek the death penalty, the law would not allow them to reinstate it, even if the defendant reneged on the plea deal and decided to go to trial. In that case, prosecutors argued, the capital defendant would only face the possibility of life in prison.

"No prosecutor would ever, logically, take that chance," said the brief, which was filed on Monday in the state's Appellate Division branch in Brooklyn.

Opponents of New York's death penalty law had predicted that the plea bargaining provisions were legally vulnerable. The major flaw, they said, was that a defendant who exercised his right to a trial faced a more severe penalty, death, than if he pleaded guilty.

Norman Siegel, the executive director of the New York Civil Liberties Union, said-that if innocent defendants did not have a strong case to take to a jury, they might be inclined to plead guilty to be assured of a less severe sentence. "You're placing the accused in a position where he is being coerced into entering a plea bargain," he said.

Ronald J. Tabak, the chairman of an American Bar Association committee on the death penalty, said that in the capital murder laws of other states "there is no difference in what the sentence will be whether you plead guilty or were found guilty by the jury."

"But in New York," he said, "it makes a great difference whether you plead guilty or a jury found you guilty."

Before the plea deal was reached last month Mr. Hale had been scheduled to go to trial on Sept. 22. Justice Tomei's rejection of the deal reinstated that trial date. But on Tuesday, the Appellate Division ordered that the trial be stayed until it decided the prosecution's appeal of Justice Tomei's ruling.

When that might happen was not clear, and an Appellate Division decision affirming Justice Tomei's ruling would no doubt be appealed to the state's highest bench, the Court of Appeals, further leaving a trial date in doubt.

Nonetheless, on the chance that his ruling will be upheld and the plea deal does not go through, Justice Tomei continued yesterday with pretrial hearings to resolve issues that must be settled before Mr. Hale is tried.

The issue in the case yesterday was whether videotaped admissions he made to the police two weeks after Mr. Tanner was killed should be permitted in the trial or suppressed on the ground that the statements were obtained in violation of his constitutional rights.

On the tape, played yesterday, in court, a weeping Mr. Hale graphically describes how, in the garage of Mr. Tahner's Sheepshead Bay apartment building, the disputes between him and the older man escalated into violence in which Mr. Hale smashed the victim's head against the floor twice, according to a prosecution transcript.

Justice Tomei originally issued his ruling invalidating the plea provisions in June, but since there was no plea deal at that time, the judge's action had no impact on the case. After the prosecution and defense agreed to the plea deal in July, they asked him to reconsider his ruling so that the deal could go through, but on July 23 be reaffirmed his decision.

Pauline Toole, a spokeswoman for the state's Capital Defender Office, which represents Mr. Hale, declined to comment yesterday on the judge's ruling, saying only that "we don't dispute there was an agreement" for Mr. Hale to plead guilty.