Statistics from Eight
Years of Representation

1995 - 2003

Prepared by: The Capital Defender Office
August, 2003

Capital Defender Office
217 Broadway
New York, NY 10007, 9th Floor
212-608-3352 ext. 215
www.nycdo.org

Introduction

The death penalty was returned to the criminal statutes of New York State by Chapter 1 of the Laws of 1995, which took effect on September 1, 1995. The new law expanded the crime of murder in the first degree and provided two penalties for persons convicted of this crime: death and life in prison without the possibility of parole (LWOP).

The new law also established an independent entity--the Capital Defender Office (CDO)-- and charged it with ensuring that persons who are accused of crimes punishable by death and who are “financially unable to obtain adequate representation or investigative, expert or other reasonably necessary services,” are adequately represented by qualified counsel and helped by experts and investigators. The CDO was also charged with establishing and maintaining a wholly new capital defense system for New York State.

Governance

The CDO is governed by a three-member board of directors who serve three-year terms. The Chief Judge of the New York State Court of Appeals, the Majority Leader and President Pro Tem of the New York State Senate and the Speaker of the New York State Assembly each appoints one director. Peter L. Zimroth, appointed by the Chief Judge of the Court of Appeals, chairs the Board of Directors. The other two members of the Board are Michael J. Hutter, appointed by the Majority Leader and President Pro Tem of the New York State Senate and Frederick J. Jacobs, appointed by the Speaker of the New York State Assembly. Past board members include the late Arthur L. Liman, the founding chairman; the Honorable John Dunne, the Honorable Richard Simons, Christopher E. Stone and the Honorable John T. Casey.

Leadership

In 1995, the Board of Directors appointed Kevin M. Doyle as the Capital Defender. Under Mr. Doyle’s direction, the CDO operates three offices across the State. The CDO’s main office is located in New York City. The downstate office handles cases in the five boroughs of New York City and four counties in the surrounding metropolitan area. The First Deputy Capital Defender in New York City, Susan H. Salomon, oversees appeals in capital cases throughout the State. The CDO operates two regional offices: Albany, which handles cases in a 29 county area in central New York and Rochester, which handles cases in a 24 county area in western New York. The First Deputy Capital Defenders in Albany and Rochester are Mark Harris and William “Bill” Easton, respectively.

Funding

The office is funded by an appropriation from the State Operations budget. In the 2003-2004 fiscal year, the Legislature appropriated $13,095,000 for all capital defense in New York State. The CDO has 75 established staff lines that includes trial staff, appellate staff and administrative staff.

Statistics

The remainder of this report offers statistics showing how the 1995 law has been implemented in New York State.(Note 1). The statistics show:

• the number of capital and death-eligible cases;
• geographic differences in the application of the death penalty;
• race and gender information; and
• the duration of capital and non-capital cases in New York.

Section One: The Number of Cases and the Representation Provided

Since September 1, 1995, District Attorneys have investigated 799 First and Second Degree Murder cases with the possibility of seeking the death penalty. Of those cases, District Attorneys sought the death penalty 50 times. Capital trials occurred in 18 cases

The number of capital cases in New York State since 1995

• District Attorneys formally investigated seeking the death penalty in 799 cases.
• District Attorneys precluded seeking the death penalty against 700 defendants.
• District Attorneys dropped charges against eight defendants.
• District Attorneys are evaluating whether to seek the death penalty in 41 cases.
• District Attorneys filed notice that they were seeking the death penalty 50 times.

The number of capital trials

• There have been 18 capital trials since September 1, 1995.
• 15 of these cases proceeded to both a guilt and penalty phase.
• Defendants in two of the three remaining cases accepted a plea to life imprisonment without parole after the guilt trial but prior to the penalty phase. The defendant in the third case was convicted of less than First Degree Murder.

The status of the 50 death-noticed cases

• Four cases are pending.
• After a penalty trial, seven defendants were sentenced to death by lethal execution. All have been appealed to the New York Court of Appeals (NYCA). On July 9, 2002, the NYCA vacated the sentence of Darrell Harris, the first defendant to be sentenced to death. The remaining six cases are pending before the NYCA.
• After a penalty trial, seven defendants were sentenced to life without parole.
• Two defendants accepted a plea to a sentence of life without parole after a jury found them guilty of First Degree Murder but before the penalty phase of the trial began.
• One defendant was convicted of less than First Degree Murder.
• One defendant, who was convicted of First Degree Murder, was sentenced, by the judge, to 115 years to life after the jury at the penalty phase was unable to reach a unanimous decision regarding sentencing.
• District Attorneys withdrew the death notices in four cases and went on to prosecute the defendants on First Degree Murder charges. Two of these defendants were found guilty at trial and sentenced to life without parole. One defendant plead to First Degree Murder and was sentenced to life without parole and the remaining defendant was acquitted.
• Twenty-three defendants pled guilty prior to trial and received sentences ranging from 25 years to life to life without parole.
• One defendant committed suicide prior to the disposition of his case.

First Degree Murder and Life Without Parole

• In 379 cases, District Attorneys filed First Degree Murder charges and precluded seeking the death penalty.
• District Attorneys are evaluating whether or not to seek death for 26 death-eligible defendants who have been charged with First Degree Murder.
• Charges were dropped in four cases which had been charged with First Degree Murder.
• In the non-capital First Degree Murder cases known to be disposed, 92 defendants were found guilty of First Degree Murder and sentenced to life without parole (LWOP).

Who Represents Defendants (Note 2)

Representation in the four pending capital cases

• 2 defendants are represented by CDO staff attorneys.
• 1 defendant is represented by 35-b attorneys (i.e., private, capitally-qualified attorneys assigned pursuant to §35-b of the Judiciary Law).
• 1 defendant is represented by a retained attorney.

Representation in the 41 death-eligible cases

• 12 defendants are represented by the CDO.
• 16 defendants are represented by 35-b attorneys.
• 9 defendants are represented by Contract Defenders.
• 4 defendants are represented by a retained attorney.

Representation in the six death penalty appeals

• 5 defendants are represented by the CDO.
• 1 defendant is represented by a Contract Defender.

Representation in the 40 closed capital cases

• 26 defendants were represented by the CDO.
• 12 defendants were represented by 35-b attorneys.
• 1 defendant was represented by a Contract Defender.
• 1 defendant represented himself (Pro Se).

Representation in the 700 death-precluded cases

• 129 defendants were represented by the CDO.
• 427 defendants were represented by 35-b attorneys.
• 75 defendants were represented by Contract Defenders.
• 69 defendants were represented by retained attorneys.

SECTION TWO: GEOGRAPHIC ISSUES (data are for the period 9/1/95 - 6/30/03)

Geographical Disparities

• Since the death penalty was reinstated on September 1, 1995, there have been 5817 arrests for First and Second Degree Murder in New York State. (Note 3)
  
• 453 defendants have been indicted for First Degree Murder.
  
• District Attorneys filed death notices 48 times.
  
• 17 of these death notices were filed downstate (Bronx, Kings, New York, Queens, Richmond, Nassau, Rockland, Suffolk and Westchester Counties).

• The remaining 31 were filed in upstate New York (remaining 53 counties).
  
• Although upstate counties experience approximately 20% of all homicides, they nonetheless account for 65% of all capital prosecutions.
  
• Six counties account for 56% of all death-noticed cases. The Kings County District Attorney has sought the death penalty seven times. The Monroe County District Attorney and the Queens County District Attorney have each sought the death penalty five times. The Broome County District Attorney has sought the death penalty four times. The Suffolk County District Attorney and the Sullivan County District Attorney have each sought the death penalty three times.
  
• Three of the seven defendants (43%) sentenced to death were from Suffolk County.
  

The following chart shows the number of murder arrests, indictments for First Degree Murder and the rate of capital cases by county.

* ARREST DATA INCLUDES ONLY THOSE MURDERS COMMITTED ON OR AFTER 9/1/95 AND EXCLUDES DEFENDANTS <18

SECTION THREE: RACE AND GENDER ISSUES

Race of the Defendant

• The race/ethnicity is known for 456 of the 459 defendants indicted for First Degree Murder statewide:

  271 (59.4%) are Black
  88 (19.3%) are White
  95 (20.8%) are Hispanic
  2 ( 0.4%) are Arabic

• The race/ethnicity of the defendant is known in all 50 cases in which District Attorneys have filed a death notice:

  24 (48.0%) are Black
  20 (40.0%) are White
  5 (10.0%) are Hispanic
  1 ( 2.0%) is Arabic

• The race/ethnicity of the defendant is known for all seven defendants sentenced to death:

  3 (42.9%) are Black
  3 (42.9%) are White
  1 (14.3%) is Hispanic

Race of the Victim

• The race/ethnicity is known for 446 of the victims of the 459 defendants indicted for First Degree Murder:

  186 (41.7%) are Black
  136 (30.5%) are White
  87 (19.5%) are Hispanic
  11 (2.5%) are Arabic
  26 (5.8%) are of multiple races (e.g., more than one victim of different race/ethnicity)

• The race/ethnicity is known for all of the victims of the 50 defendants against whom a death notice has been filed:

  15 (30.0%) are Black
  24 (48.0%) are White
  7 (14.0%) are Hispanic
  4 ( 8.0%) are of multiple races (e.g., more than one victim of different race/ethnicity)

• The race/ethnicity is known for all of the victims of the seven defendants sentenced to death:

  1 (14.3%) is Black
  3 (42.9%) are White
  1 (14.3%) is Hispanic
  2 (28.6%) are of multiple races (e.g., more than one victim of different race/ethnicity)

Gender Disparities

• 16 (3.5%) of those indicted for First Degree Murder have been women.

• The death penalty was sought against two women in New York State since 1995. The cases closed with guilty pleas and sentences other than death.

• All seven defendants sentenced to death are males.

SECTION FOUR: THE DURATION OF CASES

• Between 1991 and 1994, prior to the re-enactment of the death penalty, the average time between arrest and disposition for First Degree Murder trials was 21 months.

• Since 1995, 162 non-capital First Degree Murder cases have resulted in trials. The average length of time between arrest and disposition in these cases was 21 months.

• Since 1995, there have been 15 full capital trials (guilt and penalty phase). The average time between arrest and disposition was 26 months

Time Between Arrest and Disposition for Murder One Trials 1991 - 1994,
Non-Capital Murder One and Capital Trials 1995-2003*

* In Kings County two capital cases concluded with pleas to sentences of life without parole after jury verdicts of guilty but prior to the penalty phase and in one case the defendant was convicted of less than First Degree Murder.

Note 1: Unless otherwise indicated, the statistical information is based on information for the period 9/1/95 through 8/15/2003. Data on First and Second Degree Murder arrests is from the New York State Division of Criminal Justice Services (DCJS). Data on First Degree Murder Indictments is from the New York State Office of Court Administration (OCA) and the CDO. All other data is from the CDO.

Note 2: In addition to providing direct trial and appellate-level capital representation, The Capital Defender Office (CDO), also provides consultation services and assistance in capital and potentially capital cases that are represented by 35-b attorneys, Contract Defenders or retained attorneys.

Note 3: Arrest data includes only those murders committed on or after 9/1/95 and excludes defendants <18 years of age.