Murder in Cahill

Martin Cahill

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T en years ago this week Jeff Cahill put on a wig and a phony janitor uniform and walked into University Hospital in Syracuse armed with cyanide. He entered his estranged wife Jill's room and forced the poison into her mouth. Her six month recovery from the baseball bat beating he gave her ended, along with her life. It was October 28, Jill's older sister Debbie Jaeger remembers hearing the gruesome details of the April beating in the family's Skaneateles home, "she was out to the mudroom to the backyard when he hit her for the first time with the baseball bat.

He then dragged her into the kitchen and hit the her five, six or seven times altogether. A fractured eye sockets, broken arm from defense wounds. She took numerous blows to the head. The Cahill children, ten year old Tim and nine year old Mary, were home that night. They heard what happened downstairs. Their parents were on the verge of divorce, but family says there had never been violence before. Debbie Jaeger says the young adults are doing well. She attributes immediate intervention for helping the children survive losing their mother to murder and their father to prison.

Jaeger said,"they got their counseling up front and right away. First in Syracuse and then here. But we do not know what Jill said, or what Patricia Cahill told defendant about Jill's status. Furthermore, Fred Russell, Jill's father, stated that "there was not a word spoken" during Patricia Cahill's visit to the hospital. Thus, Patricia Cahill's testimony does not even suggest, let alone reveal, what defendant knew about Jill's condition and speaking ability.

Additional factors rebut the witness elimination theory. The very brutality of the April assault permits the compelling inference that, even as of then, defendant wanted to kill his wife and that ultimately doing so fulfilled his previously formed intent, which sprang from the impending divorce. Beyond that, defendant had fully confessed to the assault and the prosecution had a powerful case without Jill's testimony. In confessing to the assault, defendant admitted that he hit Jill on the head at least three or four times with the baseball bat. He further admitted that he struck her while she was unarmed, thus foreclosing any plausible claim of self-defense.

In light of these candid disclosures, there is scant basis to believe that defendant thought he could avoid an assault conviction by murdering Jill. In weighing the conflicting inferences that can be drawn from the facts, the proof leads us to conclude that defendant, to put it plainly, wanted to kill Jill at the hospital for reasons that had virtually nothing to do with her ability to testify against him. That section elevates intentional murder to capital-eligible murder when a defendant with "intent to cause the death of another person.

In Tuilaepa v California US , [] , the Supreme Court held that "[t]o render a defendant eligible for the death penalty in a homicide case. The Legislature drew up a list of aggravating factors to create a subclass of defendants who, in contrast to others who commit intentional murder, it thought deserving of the death penalty. By this device, the lawmakers saw to it that the death penalty could not fall randomly on all murder defendants.

Five aggravating factors relate to the killing of a member of a specific group police officers, peace officers, corrections employees, witnesses and judges [subpars i - iii , v , xii ] , two relate to the present or past circumstances of the offender defendants serving life sentences and defendants previously convicted for murder [subpars iv , ix ] , four address the circumstances of the killing or criminal transaction murder committed in furtherance of certain enumerated felonies, multiple murders as part of the same criminal transaction, murder by torture and terrorism [subpars vii , viii , x , xiii ].

Burglary is part of a larger category of criminal behavior that involves intrusion upon property Penal Law art The statutory hierarchy is relevant. The critical distinction between burglary and trespass is that a trespass in a building or dwelling is complete when a person knowingly enters or remains unlawfully in those premises. There can be no burglary unless the trespasser intends to commit a separate crime when entering or remaining unlawfully in a building see People v Gaines, 74 NY2d []. The statute begins by declaring that every first degree murder must include an intentional second degree murder.

An additional aggravating factormurder "plus"raises the crime to murder in the first degree. A candidate for first degree murder is the burglar who enters a dwelling to steal or rob or rape and in addition kills someone intentionally, in the course and furtherance of the burglary.

The case before us does not fit this statutory paradigm. Burglary requires an intent to commit a crime in the burglarized premises, and here the prosecutor uses defendant's "intent to kill" to satisfy the burglary definition. Thus, the prosecution employs the identical mens rea both to define burglary and to elevate defendant's intentional murder to murder in the first degree. The defense argues that this circularity is impermissible and that the capital murder statute contemplates a felonious intent independent of the murder itself.

A burglar who intends, for example, both to rob and murder is committing two crimes, both felonies, whose intents are purposively independent of each other. It is the "plus" in the "murder plus" formulation that is necessary to make it a death-eligible crime. Burglary, however, is different because it is a trespassa misdemeanorthat becomes a felony only if the trespasser intends to commit a separate crime when entering a building see Gaines.

If the burglar intends only murder, that intent cannot be used both to define the burglary and at the same time bootstrap the second degree intentional murder to a capital crime. To do so would not narrow the class of those eligible for the death penalty, but would widen it. We decline to imply such an intent, let alone write one into the statute, in the face of the unswerving legislative goal of narrowing rather than expanding the class of defendants eligible for the death penalty. Nor will we, in the absence of legislative intent or expression, have life or death hinge on whether a defendant engaged in conduct that simply enabled the intended murder and had no point of its own.

To do so would spurn rather than follow the Legislature's objectives. This is not so. Miller does not govern this case, and the reason is plain: Miller is distinguishable on the facts and in its legal premise. By today's decision, we leave our body of felony murder jurisprudence intact. In Miller, the defendant knocked on the door of Fennell's apartment intending to assault Fennell. Fennell's roommate, Aleem, intervened and Miller killed Aleem.

Miller was convicted of felony murder and manslaughter in the second degree as to Aleem and first degree assault as to Fennell. The Court upheld the felony murder conviction as against Miller's contention that neither the assault on Fennell nor the killing of Aleem could serve as a felony to satisfy the felony murder doctrine. The defense argues that Miller stands at most for the proposition that the defendant's conviction rested on his having killed the roommate, Aleem, to advance an independent, qualifying felony burglary and that the rest of the opinion is dicta, pointing out that Judges Jones and Gabrielli concurred in the result.

The concurring Judges stated that Miller's conviction for felony murder could properly be sustained on the basis of his having killed Aleem and that the Court need not have addressed the question whether the assault upon Fennell could qualify as a felony under the felony murder statute. We therefore have no occasion to decide whether in a felony murder casewhich this is notMiller should be extended to a defendant who enters a building to murder the victim in contrast to having the intent to assault the victim, as in Miller.

We did not address that question in Miller, let alone decide it, and it would be improvident for us to render an opinion in a hypothetical case under a statute involving concepts and purposes different from the one before us. The very purpose of the felony murder doctrine is to utilize the underlying felony as a substitute for the defendant's murderous intent and thereby raise an unintentional killing to the level of murder see People v Chico, 90 NY2d []; People v Lytton, NY [].

By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though unintended and not in the common design of the felons, as an intentional killing" citations omitted. The felony murder concept was derived from the common law, at which no intent to kill was necessary. It was enough that the victim was killed while the accused was engaged in the commission of a felony.

Moreover, felony murder liability for the death of a victim has been broadly construed see e. Conversely, felony murder builds toward it. The two concepts share certain components but have entirely different objectives and constituents, and were statutorily constructed to reach different types of homicides and different categories of defendants. Furthermore, Miller deals with assault and we have not been made aware of a single case in which this Court or any appellate court in New York ever discussed whether a felony murder conviction may be based upon a burglary with an underlying intent to kill, let alone held that way.

It is appropriate that we consider these decisions. In Parker, the Arkansas Supreme Court held that the defendant's burglary was a facilitating step along the way in fulfilling his intent to commit murder. Because the underlying burglary had no objective independent of the murder, the court refused to elevate the murder to capital offense status. The Parker court stressed that the Arkansas statute required that the murder be committed in the course of and "in furtherance of" the felony. The court pointed out that Parker did not commit the murder "in furtherance of" the burglary and that the very opposite was true: We note also that in the most recent case on this subject the Supreme Court of Delaware reached the same conclusion see Williams v State, A2d [Del ].

In reversing a death sentence, the court held that "if the intent of the burglary was to commit murder, the death that occurred was not 'in furtherance of' the burglary" id. Although it may have been carried out " 'in the course of' the burglary," it was not "carried out 'in furtherance of' it" id. Because we reach the same result on slightly different grounds, we need not and do not determine whether the prosecution is correct in its assertion that defendant killed his wife "in furtherance of" the burglary.

It is certain that the converse is truedefendant committed the burglary to further his intent to kill his wife. That being so, the burglary was not meaningfully independent from the murder. Defendant's trespass on the hospital premises was merely a prerequisite to his committing the murderan enabling measure that had no purpose or substance other than to serve his only goal, to kill his victim.

In Green 27 Cal 3d at , P2d at , the Supreme Court of California addressed a question similar to the one before us. Green is pertinent because the California capital punishment statute does not require that the murder be "in furtherance of" the felony. The court therefore did not rely on the "in furtherance" language that influenced the results in Parker and Williams. To permit a jury to choose who will live and who will die on the basis of whether in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other listed felonies would be to revive 'the risk of wholly arbitrary and capricious action' condemned by the high court plurality in Gregg.

In sum, we reject the approach adopted by Mississippi and Utah and, while aware of the differences among the respective statutes, join Delaware, Arkansas and California in refusing to elevate a case such as this to capital murder status. But to do so we would have to stretch the statute's meaning and bend the language to encircle the case before us. Requiring an intent independent of the intentional murder of the victim, as we do, is both the most sensible reading of the statute and the one most consonant with the Legislature's intent in establishing the statute's aggravating factors.

We are also aware of the dissent's contention that our interpretation could engender results that, on the surface, appear incongruous. The defendant who breaks into a home with the joint intent of killing the occupant and stealing an appliance would, under our interpretation, be death-eligible, but a defendant who breaks into the same home for the sole purpose of killing the occupant would not.

This might appear as a surface flaw, but on further analysis the result is fully in keeping with the statutory plan. Accordingly, the judgment of Onondaga County Court should be modified by reducing defendant's conviction of two counts of murder in the first degree to one count of murder in the second degree and remitting to that court for resentencing on the second degree murder as well as the remaining counts and, as so modified, affirmed.

Concurring opinion by G. I concur with the Court's conclusions that the trial court's failure to grant appropriate cause challenges went to the sentencing phase of the trial and does not require a new trial, and that the convictions for capital murder, murder in the first degree with burglary as the underlying felony and murder in order to eliminate a witness from testifying must be reversed. I address two other issuesthe deadlock jury instructions which are required to be given by CPL Both issues have been raised by the defendant.

While I would prefer that the entire Court, majority and dissents, deal with these issues, I address them because they are central to a determination of the validity of a death penalty prosecution. Because the provision requiring the jury to receive a particular deadlock instruction is coercive, I would reach that issue. Judge Ciparick joins me in concluding that the deadlock instruction is coercive.

Cahill family remembers murder 10 years ago | WSTM

I also disagree with the failure of the Court to address the arbitrariness of the death penalty scheme, and would reach that issue. On April 21, , two weeks after signing a separation agreement with his wife, defendant James F. Jeff Cahill assaulted his wife, Jill Cahill, with an aluminum baseball bat. The incident left her unconscious, with severe head injuries for which she spent months in a hospital. Defendant first claimed that she came at him with a knife and he hit her in self-defense.

Later he admitted that he continued to hit her after she dropped the knife. After helping her back into the kitchen, [I] retrieved the knife from the mud room and put it on the kitchen floor. Back in the kitchen, the struggle resumed, and [I] hit her with the bat at least twice when she was not holding the knife. As a result of the arrest and indictment, defendant was not allowed to have contact with his wife or his two children.

On October 27, , while Jill was still in the hospital recovering from the assault, defendant entered her room and poisoned her with cyanide. Defendant was arrested at home on October 27th for the incident at the hospital. The next day the police seized a computer from the Cahills' house. From the computer, the police were able to ascertain evidence of Internet searches for information about cyanide, and a letter on letterhead from a local company ordering cyanide.

It was later determined that the letter and the letterhead were forgeries. Additionally, the police recovered a container of cyanide which was hidden near the shed on the property. On August 20, , the jury determined that defendant should be sentenced to death as to each count of murder in the first degree. Four Judges of this Court conclude that defendant was properly convicted of intentional second degree murder. The dissents, without addressing all of the arguments raised by the defendant, conclude that he was properly convicted of both counts of capital murder. In People v Harris 98 NY2d [] and again in this case, defendants have raised issues concerning the constitutionality of the capital murder legislation.

I believe those issues should be addressed. I continue to believe that heightened scrutiny must be applied to all aspects of a capital murder case see People v Harris, 98 NY2d at Even if that doctrine is not applied here, there are arguments raised by defendant which go to the heart of any case under the capital murder legislation.

These include the court's instructions on a deadlocked jury, instructions required by CPL Challenges for Cause to Some Prospective Jurors. In People v Johnson this Court stated: Thus, a trial court must excuse a prospective juror who displays a disqualifying state of mind unless the juror gives a clear and unambiguous assurance that he or she can be impartial. A general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient.

Instead, "jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict. If there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have 'replaced one impartial juror with another' " People v Arnold, 96 NY2d , []. Defendant argues that the trial court should have dismissed prospective juror No.

While recognizing that some of the initial answers given by those prospective jurors could arguably reflect on their ability to be impartial on the guilt phase, I join the Court in its conclusion that the potential lack of impartiality of these two prospective jurors affected their impartiality only as to the sentencing phase of the trial.

Where the death penalty is sought on a first degree murder indictment, if the jury finds the defendant guilty, it must then determine how the defendant's crime should be punished. That provision further requires the court to instruct the jury that "in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty-five years and a maximum term of life.

At the outset, it is necessary to note that because of its severity and irrevocability, the penalty of death is qualitatively different than any other type of sentence, regardless of the length of the period of imprisonment see Woodson v North Carolina, US , [] [plurality op]. Because of this qualitative difference, the United States Supreme Court has recognized that there is a heightened "need for reliability in the determination that death is the appropriate punishment in a specific case" id.

In order to ensure that "the death penalty is indeed imposed on the basis of 'reason rather than caprice or emotion,' " the Court has "invalidated procedural rules that tended to diminish the reliability of the sentencing determination" Beck v Alabama, US , []; see Gardner v Florida, US , []. A jury instruction that introduces a level of uncertainty and unreliability "cannot be tolerated in a capital case" Beck at ; see People v Harris, Misc 2d , [Sup Ct, Kings County , Feldman, J.

New York leaves the decision of capital sentencing in the hands of the jury. Like the majority of such jurisdictions, New York provides that when a jury is unable to reach a unanimous verdict, the trial judge assumes the responsibility to impose the defendant's sentence according to its respective statute. New York is but one of four states that instructs its juries as to the consequences of a failure to decide between death and some determined lesser sentence.

Only in New York is the trial judge required to impose a sentence more lenient than the two sentencing options upon which the jury had deliberated. Such a sentencing scheme is irrational and carries a substantial risk of coercing a unanimous sentencing verdict from a jury, even under circumstances where individual jurors hold a genuine belief that their position, though different than that of their fellow jurors, is the just one. The sentencing scheme to be employed upon a jury deadlock is therefore unconstitutional. While the legislative history of the New York death penalty statute offers no insight into why the only sentence available for the trial court to impose upon a jury deadlock would be a sentence more lenient than the options the jury had been considering, the legislative debates demonstrate that the members of the Legislature were aware of the risk that the jury instruction could result in a coerced verdict but consciously disregarded the risk.

That's, I think, the option that they face. At a subsequent exchange, the following occurred: But isn't it inherently coercive to tell them that you have to [reach a consensus on the most severe penalties]; otherwise, there is going to be another penalty imposed? They don't have to do anything. I mean what you do have to do, I think, Senator, the problem would bemy own personal feeling is I think there could be a problem if you didn't inform the jury right up front as to what happens when they fail to make a decision" id.

Senator Volker has since introduced a bill amending the death penalty statute that, among other things, proposes that the sentence to be imposed by the trial judge upon a jury impasse with regard to sentencing would be the non-death sentence that the jury had been consideringlife imprisonment without the possibility of parole see NY Senate Bill S , New York th Annual Legislative Session, introduced May 31, The sentencing consequence of a deadlock, as provided by CPL Essentially, jurors are informed at the very outset of their deliberations that if they cannot unanimously decide whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole, the judge will impose a prison term of life with the possibility of parole after serving from 20 to 25 years.

Such an instruction plainly goes to the heart of one of the chief concerns a deliberating jury would have about the defendanthis or her future dangerousness see Simmons v South Carolina, US , [] ["a defendant's future dangerousness bears on all sentencing determinations made in our criminal justice system"]; Jurek v Texas, US , [] ["any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose"].

Future dangerousness of a defendant is such a crucial issue for a jury deciding a defendant's sentence because jurors do not want to be responsible for the release of a defendant they believe will continue to be a societal threat see William J. Bowers and Benjamin D.

Steiner, Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing, 77 Tex L Rev , [] [according to accounts, jurors often impose death, not because they deem the sentence to be retributively appropriate, but for the incapacitative purpose of removing the defendant from society]. According to an empirical study conducted by the Capital Jury Project in South Carolina, one of the most important considerations jurors make in assessing a defendant's future dangerousness is "the probable actual duration of the defendant's prison sentence" if the death penalty is not imposed Eisenberg and Wells, Deadly Confusion: Jurors perceive a defendant likely to be released after a shorter prison term as more dangerous than the same defendant expected to serve a longer term.

Berberich, Note, Jury Instructions Regarding Deadlock in Capital Sentencing, 29 Hofstra L Rev , [] ["The sooner jurors think the defendant will get out of prison, the more likely they are to vote for death"]. It rationally follows that a jury's perception of a defendant's future dangerousness is vastly diminished when the only options for his sentence are death and life imprisonment without the possibility of parole.

The availability of a life sentence without the possibility of parole necessarily means that the death penalty is no longer the only way to achieve a defendant's permanent incapacitation see Bowers and Steiner, Death by Default, 77 Tex L Rev at [life without parole and death are "essentially equivalent for incapacitative purposes"].

However, a jury instruction that the failure to reach a unanimous verdict between those two options would result in a parole-eligible life sentence interjects the issue of the defendant's future dangerousness into the deliberative process where it otherwise would have no place. Plainly, the most disturbing risk that the statute poses is that a juror who is in the minority in his or her vote for life without parole would inevitably feel pressured to vote with the majority for the death sentence in order to avoid the possibility of defendant's eventual freedom.

Faced with the possibility that they will not otherwise be able to prevent the defendant's return to society, jurors favoring life without parole may relinquish their conscientiously held beliefs and vote for the death penalty see Berberich, Jury Instructions, 29 Hofstra L Rev at ["Common sense leads to the conclusion that a juror who would impose death over a life sentence because of his or her fear that a capital offender would be released on parole, would also impose a death sentence if he or she believed that a hung jury would lead to the same result.

The People argue that the challenged jury instruction could also have the effect of pressuring jurors who favor the death sentence to vote in favor of life without parole in order to avoid the more lenient deadlock sentence. The People are certainly correct on this point. But for two important reasons, the possibility of such an outcome does not matter.

Murder in Cahill

First, as explained above, the finality and irrevocability of a death sentence makes that punishment qualitatively different than any other punishment that may be imposed, no matter how long the period of imprisonment see Woodson, US at [plurality op]. It is the possibility of the death sentence that triggers a heightened scrutiny analysis, not the possibility of a life sentence.

Surely, a statutory provision which creates a substantial risk that jurors would be coerced into sentencing a defendant to die cannot be saved by the fact that the provision also creates the risk that the jury would be coerced into sparing his life.

These are not comparable outcomes. Moreover, because we can never predict in any given case how the votes of the jury would be configured, we cannot anticipate how the pressure of the deadlock sentence would be applied see Harris, Misc 2d at In any event, the substantial risk of coercion posed by the deadlock sentence cannot be tolerated. Second, regardless of whether the deadlock provision favors the defendant or the prosecution, it remains coercive. It introduces a measure of uncertainty and unreliability into the deliberative process.

Thus, there is a substantial risk that the jury verdict may not reflect the true conscience of the jury. As a constitutional matter, such a result cannot be countenanced in a capital case see Beck v Alabama, US at However, "when [capital jurors] impose a death sentence because life without parole, the sentence they deemed most appropriate, is not available, death is a forced choice" Bowers and Steiner, Death by Default, 77 Tex L Rev at n 22 []. The result is an unreliable death verdict that does not accurately reflect the collective conscience of the community and seriously offends principles of due process and fundamental fairness.

Just as significant, the appropriate cure for this coercive statutory provision is not simply to withhold from the jury the fact that the trial judge could impose a more lenient sentence should the jury fail to reach a unanimous decision.

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New York has, with good reason, decided that the jury should be made aware of what would happen in the event of a deadlock. Providing such instruction is rooted in the significant interest of minimizing the risk of an arbitrary or capricious action. Indeed, without such an instruction, there is an intolerable likelihood that jurors would speculate as to what would happen to the defendant in the event of a deadlocked jury.

Studies have shown that such speculation often tends to favor the imposition of the death sentence because jurors tend to underestimate the severity of the non-death sentencing alternative see Eisenberg and Wells, Deadly Confusion, 79 Cornell L Rev at 4; Bowers and Steiner, Death by Default, 77 Tex L Rev at Thus, telling jurors nothing about the sentence to be imposed upon a jury deadlock would risk the same unacceptable results that already exist with the instructions provided in the current statute. Therefore, the only proper way to cure the infirmity of the provision is to strike the deadlock instruction itself.

The only constitutionally proper sentence for a judge to impose upon the failure of the jury to decide between death and life imprisonment without parole is the lesser sentence considered by the jurylife imprisonment without parole. Such a result ensures that the jury's verdict expresses the true conscience of the community and is not the result of uncertainty or coercion.

Defendant has also raised the issue of the arbitrariness of the death penalty statute. While in light of the disposition here, I do not come to a definitive conclusion on the issue of arbitrariness, the argument is a strong one and should be addressed. I write to highlight two aspects of this argument. Although raised in Harris, this Court has not previously addressed this issue Harris, 98 NY2d at n Traditionally, district attorneys have enjoyed great discretion in making charging decisions.

That discretion need not be disturbed by this opinion. However, notice of intent to seek the death penalty pursuant to CPL There is no provision under section The decision can be based on personal, irrelevant or even improper reasons without preserving a record for appeal.

The arbitrary way in which a defendant becomes exposed to the death penalty may be in violation of a defendant's constitutional rights on both a state and federal level. The People argue that the defendant failed to allege how the statute "as applied to him violates a constitutional norm" People v Parker, 41 NY2d 21, 24 []. The People call for a specific allegation. In their words, "[a]ppellant only insinuates that the use of prosecutorial discretion to file a notice to seek capital punishment pursuant to CPL According to the figures kept by the Office of Court Administration and the Capital Defender Office, between September 1, and December 31, , grand juries indicted defendants for first degree murder in New York.

Murder in Cahill

During this same period, district attorneys filed death notices in only 43 cases. That is only Yet the decision made by the district attorney has a direct impact on the defendant. Under the statute as written, a defendant who is allegedly aggrieved by the People's filing of the CPL Certainly no one would deny a defendant's challenge if he or she could prove, for example, that the reasoning behind the notice was race-based. To deny a defendant's challenge where the district attorney is allowed to conceal reasoning improperly stacks the deck against the defendant.

Death is different and a defendant should be allowed to seek out and challenge the action of the district attorney. Failure to permit a challenge to the filing of the death notice stands in direct contradiction to the principles on which our legal system is founded. It is a sad and ugly badge of shame that the imposition of death in this country has been tainted with racial prejudice. It is no coincidence that when the Supreme Court in Furman v Georgia US [] declared that the death penalty as then enacted constituted a cruel and unusual punishment in violation of the Constitution, the three defendants in the case were Black.

The Court's opinion is terse, but the opinions of the individual Justices make the case one of the longest in the United States Reports. The first of the opinions is that of Justice Douglas, who concluded that "[t]hose who wrote the Eighth Amendment knew what price their forebears had paid for a system based, not on equal justice, but on discrimination. In those days the target was not the blacks or the poor, but the dissenters. Examining the raw numbers of those executed, Justice Marshall noted that "Negroes were executed far more often than whites in proportion to their percentage of the population.

He then added that "[s]tudies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination" id. Although concluding that racial discrimination in the cases before the Court was not established, Justice Stewart referred to Justices Douglas's and Justice Marshall's "demonstrat[ion] that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race" id.

Although Justice Brennan did not mention race, he concluded that the death penalty did not "comport[ ] with human dignity" because of, among other things, the "strong probability that it is inflicted arbitrarily" id. Similarly, Justice White concluded that "the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.

Furman represents, to varying degrees, a certain distrust of jurors' ability to consistently make rational and nondiscriminatory judgments as to which defendants are deserving of the ultimate punishment. Just one year before Furman, the Court had held, in McGautha v California US , [] , that "[i]n light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.

In his dissenting opinion in Furman, Chief Justice Burger stressed "the assumption underlying the McGautha ruling is that juries 'will act with due regard for the consequences of their decision' " Furman, US at He added that jurors are the "conscience of the community" id.

Justice Powell, the author of another dissenting opinion, also conceded that the death penalty had been applied in a discriminatory manner in the past, but concluded that this did not justify invalidating death penalty sentences "in all cases in which sentences were handed out to members of the class discriminated against. Expressing a rather optimistic view, he stated that "[t]he possibility of racial bias in the trial and sentencing process has diminished in recent years" id.

Four years later, in Gregg v Georgia US , [] , the Court condoned Georgia's revised sentencing procedures in death penalty cases because jurors were required to make specific findings "as to the circumstances of the crime or the character of the defendant. Although the Court did not focus on race, it is fair to say that, in light of Furman, the purpose of limiting jury discretion was to ensure that it would not be exercised in a discriminatory manner.

One would expect then that after Furman and Gregg, there would be a change in the statistical landscape of those who are subjected to the death penalty and those who are not. It has not occurred. The jury discretion limits imposed by Georgia in , after Furman, did not have an immediate profound effect on the collective racial consciousness of Georgia jurors. This was shown by an academic study spearheaded by Professor David C.

Baldus which analyzed data on about 2, homicides committed in Georgia from to The numbers seem to make clear that in a significant number of cases, the taking of a White life by a Black defendant deserved a harsher punishment, namely death, than any other type of case. Of course, McCleskey could not prove directly that the jurors who sentenced him to death did so because of his race. But he relied on the study to show an inference of discrimination in cases involving White victims and Black defendants.

As in Furman, the argument was a salvo aimed at jury discretion, the heart of the criminal justice system. In an opinion by Justice Powell, the Supreme Court rejected the argument by finding as follows: The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose" US at Addressing jury and prosecutorial discretion in the context of the Eighth Amendment challenge, the Court found that: The Court also stated that an acceptance of McCleskey's claim would place into jeopardy cases not involving race and noncapital cases.

For example, the Court reasoned, unattractive people could make an argument similar to that of McCleskey. Finally, the Court ended with the caution that McCleskey, or rather those who supported his arguments, should appeal to the legislatures. The Court in Furman analyzed data from the entire nation, while Gregg and McCleskey were limited to Georgia defendants. While many other states do not share the same legacy of institutional racism common to Georgia see McCleskey, US at [dissenting op of Brennan, J.

That much can be gathered from a report, entitled "Death Penalty Sentencing: The report undertook this approach because of the availability of "both. The synthesis showed "a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty. With respect to the race of the victim, the evidence was clear: This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques.

This was because the earlier stages were comprised of larger samples allowing for more rigorous analyses. However, decisions made at every stage of the process necessarily affect an individual's likelihood of being sentenced to death. With respect to the race of the defendant, the findings were not as clear cut. The report determined that "more than half of the studies found that race of defendant influenced the likelihood of being charged with a capital crime or receiving the death penalty," and that three fourths of these studies "found that black defendants were more likely to receive the death penalty.

The report cautioned, however, that the relationship between race and outcome was complex. The GAO report is now 15 years old. Since its publication, a number of additional studies have been prepared. Many of these studies have concluded that race, whether of the victim or the defendant, or both, plays a role in the imposition of the death penalty. While the imposition of the death penalty in New York is older than the state itself,[FN13] the last execution took place in , several years before Furman.

When the death penalty was in place, New York was often a leader in the number of executions carried out. An analysis of those executed from , the year capital punishment was centralized, to , reveals the following: Similarly, during the s the Black population in New York accounted for only 3. As to the makeup of the race of the victims, the statistics are not much different. On the other hand, "only 6. As the People point out, the current death penalty statute contains numerous safeguards against racial discrimination.

During voir dire, parties may question jurors on "the possibility of racial bias" CPL Upon a conviction of first degree murder, but before the sentencing stage, the court must "determine whether any juror has a state of mind that is likely to preclude the juror from rendering an impartial decision based upon the evidence adduced during the proceeding" CPL On direct appeal, this Court must determine whether the sentence "was imposed under the influence of passion, prejudice, or any other arbitrary or legally impermissible factor including whether the imposition of the verdict or sentence was based upon the race of the defendant or a victim of the crime" CPL Similarly, in determining whether the sentence was excessive or disproportionate in comparison to other cases, the Court must, if requested by the defendant, "review whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases by virtue of the race of the defendant or a victim of the crime for which the defendant was convicted.

Yet, it is questionable whether racial prejudice can really be extirpated from capital proceedings. It is undeniable that racial prejudice is alive in many aspects of society, and no one expects it to die any time soon. There are numerous laws and agencies charged with stamping out discrimination from employment, housing and public accommodation.

Yet, discrimination in those areas continues. The criminal justice system, of course, is supposed to be different. Despite the well-established mass of jurisprudence, from Congress, the New York State Legislature, the United States Supreme Court, and this Court, prohibiting discrimination in the criminal justice system, as recently as , a study conducted by the New York State Judicial Commission on Minorities, established by the then-Chief Judge of this Court, concluded "that there are two justice systems at work in the courts of New York State, one for Whites, and a very different one for minorities and the poor.

Many minorities in our courts receive 'basement justice' in every sense of the phrase. Moreover, a study by the New York State Division of Criminal Justice Services, entitled "Disparities in Processing Felony Arrests in New York State, ," concluded that similarly situated minorities and Whites were not treated equally, with the former held in jail on indictment and sentenced to incarceration more often, particularly in counties outside of New York City.

There is no doubt that conditions have improved, but try as it might, the justice system cannot immunize itself against racial prejudice. At the heart of the system are jurors with a great deal of discretion. It is probably the case that no safeguards are needed to ensure that many jurors exercise their discretion in a nondiscriminatory manner. But how many jurors who hold views determined largely by race, which can range from virulent to latent, will publicly acknowledge their views during voir dire?

And can it be said that such jurors who sit in judgment of minority defendants will invariably put their views aside and decide the case on the law? Can the justice system realistically protect minority defendants against jurors who hold these views? But should the danger be tolerated in cases where the penalty is death? Does the need to have the death penalty as a punishment outweigh the danger that it will be applied in a discriminatory manner?

Are the efforts of the Legislature to insure that a death sentence will not be imposed because of race sufficient in light of the history of capital punishment in New York State? Under McCleskey, the importance of jury discretion outweighs the danger that it could be used in a discriminatory manner. Another ignored imperfection of the criminal justice system is a difference in the treatment of similarly situated defendants that results from prosecutorial discretion. Like jurors, prosecutors can use their "broad discretion" United States v Goodwin, US [] in a discriminatory manner.

While it may not be difficult to imagine a juror whose vote for death may be tainted by views on race, it jars the mind to think that the race of a defendant or victim would influence a prosecutor's decision to seek the death penalty. The difficulty is diminished, however, if determinative views on race, whether blatant or latent, exist in the collective consciousness of the community that elected the prosecutor. The Supreme Court has had to "repeatedly state[ ] that prosecutorial discretion cannot be exercised on the basis of race" McCleskey, US at n Perhaps the most prominent example of a curb on prosecutorial discretion in order to protect minority defendants is Batson v Kentucky US 79 [] which held that prosecutors may not exclude jurors on account of race.

Up until then, prosecutors had the unfettered discretion to peremptorily exclude jurors without having to offer any reasons. After Batson, upon a defendant's showing of a prima facie case of discrimination, a prosecutor must offer race-neutral reasons for a peremptory challenge to a juror. If prosecutorspublic officialsnever used their discretion to discriminate, Batson would not be needed.

The important interests served by peremptory challenges gave way to the need to ensure that prospective jurors are not excluded based on race. In addition, other factors, such as the availability of the resources to prosecute a death penalty case, may also play a role. When the death penalty is sought against a defendant in one county, but not against a similarly situated defendant in another county, the decision as to who gets the death penalty may be said to be arbitrary. The death penalty statute does not prohibit this kind of arbitrariness. It must be acknowledged that so far there is no apparent indication that the race of the defendant has played a role in the determination to seek the death penalty in New York under the present statute.

According to raw numbers compiled by the New York Capital Defender Office, from to , district attorneys across the state filed death notices in 43 cases. The number of White defendants against whom a death notice was filed was 18, although the larger group of eligible defendants was about The race of the victims, however, is a different matter.

Of the 43 cases in which prosecutors sought the death penalty, 21 or Thus, of the victims of defendants charged with first degree murder whose race is known, the number of Black victims is half the number of White victims. Concededly, these are raw numbers, but they are startling nevertheless.

The numbers for geographic disparities are even more startling: The question in death penalty cases is whether the New York State Constitution should provide more protection against the risk of racial discrimination than McCleskey. New York must remain committed to the ideal of equality under the law. A defendant should not have to show direct evidence of discrimination, as effectively required by McCleskey.

While the administration of the death penalty in New York was tainted with racial and ethnic bias, and minorities have not always received equal justice, New York has been particularly steadfast in its condemnation of racial discrimination. Both the Federal and State Constitutions prohibit the denial of equal protection. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

Under the New York State Constitution, the death penalty cannot be imposed if the risk that race played a role in its imposition is significant. While I make no determination on the issue of the arbitrariness of the death penalty, I conclude that before a death sentence can be imposed, the issue must be addressed and resolved.

Concurring in part and dissenting in part opinion by Graffeo, J. I concur with Point I of the majority's opinion. Equally disturbing, the majority concludes that the witness elimination murder charge was supported by sufficient proof, yet reverses that conviction without explaining why the jury, which had the ability to assess the credibility of witnesses, could not have found beyond a reasonable doubt thatregardless of whatever else motivated defendanthe intended to eliminate Jill Cahill as a potential witness.

In addition, I cannot agree with the majority that the trial court erred in life and death qualification of the prospective jurors and fully concur with Judge Read's jury selection analysis. I therefore dissent from so much of the majority decision that overturns defendant's first-degree murder convictions. The majority's holding that the evidence against defendant was legally insufficient to establish his guilt of felony murder in the first degree rests upon two separate, yet intertwined legal theories: I cannot accept either analysis.

There are certain well-settled principles of statutory constructionconstruing laws in accord with the plain meaning of the language chosen by the Legislature, avoiding irrational results and adopting interpretations that do not undermine the constitutionality of a statutethat this Court adheres to in order to effectuate the legislative intent of a law. These rules should apply in all cases, including capital cases. The fundamental flaw in the majority's analysis is its disregard of these rules and of the clear and unequivocal language of the felony-murder aggravator.

The carefully selected language of the first-degree felony-murder statute should inform the outcome in this case. Our function as judges is to interpret this law. The " 'clearest indicator of legislative intent' " is the statute itself People v Robinson, 95 NY2d , [], quoting Majewski v Broadalbin-Perth Cent.

If the language chosen by the State Legislature is clear and unambiguous, and "involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" Tompkins v Hunter, NY , []; see People ex rel. Harris v Sullivan, 74 NY2d , []. When this doctrine is violated, a court impermissibly encroaches upon the legislative and executive domains and thereby violates the foundation of the separation of powers doctrine see People v Finnegan, 85 NY2d at We have recognized that in enacting the burglary and felony-murder statutes, the Legislature "intended that the definition be 'satisfied if the intruder's intent, existing at the time of the unlawful entry or remaining, is to commit any crime' " People v Miller, 32 NY2d , [] [emphasis in original], quoting Denzer and McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, at This is true in one respectonly intentional murders are included, not "all killings" majority op at This is consistent with additional language in the statutethe requirement that the murder must occur "in the course of.

To satisfy these elements, the People must prove that the homicide not only occurred during "the course of" a burglary, but that the killing was logically related to the unlawful intrusion as well. The latter requirement has long been part of New York law. As we explained in People v Wood 8 NY2d 48 [] , interpreting a predecessor felony-murder provision: Although the homicide itself need not be within the common design.

Significantly, the Legislature echoed the terminology we articulated in Wood when it added the phrase "in furtherance of" to the felony-murder statute in This phraseology was then carried forward in the felony-murder provision of the death penalty act. Because the Legislature chose to use a phrase first adopted by this Court when it enacted the felony-murder provision in and then used the identical language in the capital felony-murder provision, it is reasonable to conclude that the Legislature intended to incorporate the Wood rule into the death penalty statute.

Consistent with Wood, courts have interpreted the "in furtherance of" element as requiring a logical nexus between a murder and a felony see People v Lewis, Misc 2d , [Sup Ct, NY County ] [citing Wood for the proposition that " 'in furtherance' places a relation requirement between the felony and the homicide. Wood therefore established that a murder is logically related to and thereby furthers another crime when, among other possibilities, it is designed to help achieve the purpose of the other crime. In this case, the "unlawful end" People v Wood, 8 NY2d at 51 that prompted defendant to commit the burglary was the murder of his wife.

Thus, under the Wood analysis, the murder of Jill Cahill furthered the unlawful entry into her hospital room. The majority entirely avoids addressing the "in furtherance of" requirement and adopts a rule that is inconsistent with this statutory language. Indeed, although the majority asserts that its analysis is "more faithful to the Legislature's language and design" and is consistent with "the statutory plan" majority op at 72 , it never actually interprets the language of the statute.

Nor does it cite any legislative history in support of its conclusions nothing in the legislative history supports either the conclusion the majority has reached or the untraditional review it engages in to get there. Instead, the majority concludes that if the purpose of a predicate felony is to commit murder, there is no "independent criminal objective" for the felony; the burglary necessarily furthers the homicide but the burglary may not be furthered by the killing.

This is, in effect, the "merger" rule that many other statesincluding New York see People v Miller, 32 NY2d [] have rejected. The California Supreme Courtthe court that invented this analytical theoryhas characterized as "artificial" and "anomalous" the notion that "a felon who acts with a purpose other than specifically to inflict injury upon someonefor example, with the intent to sell narcotics for financial gain.

The majority contends that the holding in this case does not undermine this Court's precedent in People v Miller. If this is true, there are now two different "merger" rules in this stateone for first-degree felony murder and one for second-degree felony murderdespite the fact that the language of those statutes is identical in all relevant respects.

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