Fordham Law Review Volume 69 Issue 6 Article 5 2001 Plea Bargaining in the Shadow of Death Joseph L. Hoffmann Marcy L. Kahn Steven W. Fisher Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Joseph L. Hoffmann, Marcy L. Kahn, and Steven W. Fisher, Plea Bargaining in the Shadow of Death, 69 Fordham L. Rev. 2313 (2001). Available at: https://ir.lawnet.fordham.edu/flr/vol69/iss6/5 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. ARTICLES PLEA BARGAINING IN THE SHADOW OF DEATH Joseph L. Hoffmann, * Marcy L. Kahn,* & Steven W. Fisher*** INTRODUCTION On July 20, 2000, a ruling by the Third Department of the New York Supreme Court, Appellate Division, effectively banned all plea bargaining in New York capital cases. The ruling, in the case of People v. Edwards,1 was based on the Third Department's interpretation of the landmark 1998 New York Court of Appeals decision in Matter of Hynes v. Tornei.2 Taken together, Edwards and Hynes have thrown the day-to-day administration of the death penalty in New York into a state of confusion.' Edwards and Hynes involved the same set of fundamental questions: What are the constitutional implications of plea bargaining in the shadow of death? Can the threat of the death penalty ever be used as leverage to persuade a defendant to waive his constitutional right to a jury trial and enter a plea of guilty? If so, when and under what circumstances? In an attempt to find answers to these difficult questions, the Edwards and Hynes courts looked primarily to the United States * Harry Pratter Professor of Law, Indiana University-Bloomington. Professor Hoffmann would like to thank his Indiana University colleague, Professor Craig Bradley, for making helpful suggestions on an earlier draft of this article. ** Justice of the Supreme Court, First Judicial District of New York. Justice Kahn wishes to thank Jonathan Zimet, Associate Counsel (Capital Cases), New York State Unified Court System Office of Court Administration, for his legal archaeology and thoughtful comments on the article; Barbara Jaffe, Justice Kahn's Principal Law Clerk, for her helpful suggestions; Erena Baybik, New York Law School Class of 2001, for her research assistance; and Arlene Goldschlager, Justice Kahn's secretary, for her assistance in managing logistical aspects of the project. *** Justice of the Supreme Court, Eleventh Judicial District of New York, and Administrative Judge of the Supreme Court, Queens County. Justice Fisher would like to thank his Executive Assistant, Paul Lewis, for his helpful suggestions. 1. 274 A.D.2d 754, 712 N.Y.S.2d 71 (3d Dep't 2000). 2. 92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177 (1998), cert. denied, 527 U.S. 1015 (1999). 3. See John Caher, Defendant Faces Death After Plea Vacated, N.Y. LJ., July 21, 2000, at 1; Daniel Wise, Both Sides Troubled by Plea BargainingBan, N.Y. L.J., Sept. 5, 2000, at 1. 2313 2314 FORDHAM LAW REVIEW [Vol. 69 Supreme Court's 1968 decision in United States v. Jackson.4 There, the Court struck down the death-penalty provision in the Federal Kidnaping Act,5 because the Act provided that the death penalty could be imposed only after conviction at a jury trial, but not after conviction at a bench trial or upon a guilty plea.6 This statutory sentencing disparity, according to the Jackson Court, "impos[ed] an impermissible burden"7 on the exercise of Fifth and Sixth Amendment rights by defendants who sought a jury trial. The statute's constitutional flaw was that it "needlessly encourage[d] ''8 defendants to waive their Fifth and Sixth Amendment rights, even if many of the resulting guilty pleas were not necessarily coerced under traditional standards of voluntariness.9 The proper remedy for this constitutional flaw, according to the Jackson Court, was to excise the offending death-penalty provision and thus allow the remainder of the Act-with a reduced maximum punishment of life imprisonment-to survive.10 In Hynes, the New York Court of Appeals squarely addressed a Jackson challenge to the New York death-penalty statute." The New York statute, like the Federal Kidnaping Act, had the effect of limiting the death penalty to those defendants who were convicted of the capital crime (in this case, first-degree murder) at a jury trial. The statute created this effect by prohibiting bench trials for defendants charged with first-degree murder,12 and by further providing that defendants could plead guilty to first-degree murder only upon the prior agreement of the trial judge and prosecutor that the death penalty would not be imposed. 3 The Hynes court concluded that because the New York statute failed to provide for the possibility of a death sentence after a guilty plea, it created exactly the same kind of statutory sentencing disparity that was held unconstitutional in Jackson.4 In Hynes, however, the 4. 390 U.S. 570 (1968). 5. 18 U.S.C. § 1201 (1964). In 1994, Congress changed the spelling of kidnaping in the statute to kidnapping. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, tit. XXXIII, § 330021, 108 Stat. 1796, 2150 (1994) (amending Title 18, United States Code). Although both spellings are correct, see American Heritage Dictionary of the English Language 990 (3d ed. 1996), this article will use the spelling as it appears in the original Act. 6. See Jackson, 390 U.S. at 570-72. 7. Id. at 583. 8. Id. (emphasis omitted). 9. Id. 10. Id. at 591. 11. Act of Mar. 7, 1995, ch. 1, 1995 N.Y. Laws 1 ("An Act to amend the penal law, the criminal procedure law, the judiciary law, the county law, the correction law and the executive law, in relation to imposition of the death penalty ... 12. N.Y. Crim. Proc. Law § 320.10(1) (McKinney 1993). 13. Id. §§ 220.10(5)(e), 220.30(3)(b)(vii) (McKinney Supp. 2001). 14. Matter of Hynes v. Tomei, 92 N.Y.2d 613, 622-27, 706 N.E.2d 1201, 1204-07, 684 N.Y.S.2d 177, 180-83 (1998), cert. denied, 527 U.S. 1015 (1999). 2001] PLEA BARGAINING IN THE SHADOW OF DEATH 2315 court chose to remedy the constitutional flaw not by eliminating the death penalty, but instead by striking the plea provisions from the death-penalty statute. As a result, "a defendant may not plead guilty to first degree murder while a notice of intent to seek the death penalty is pending;"' 5 in other words, once a notice of intent is filed," a guilty plea to first-degree murder is permitted only after the prosecutor withdraws the request for the death penalty. The court added, however, that defendants remain free to plead guilty to lesser offenses not punishable by death, such as second-degree murder, even while they are facing the possibility of a death penalty under a first- degree murder charge. 7 In Edwards, the Third Department addressed a post-Hynes situation in which the prosecutor and defendant, in a first-degree murder case with a pending notice of intent to seek the death penalty, reached a pretrial agreement through plea negotiations."M Pursuant to this agreement, the defendant first proffered a guilty plea to first- degree murder and made a complete allocution. Next, the prosecutor consented to the plea and withdrew the notice of intent to seek the death penalty. Finally, the trial judge accepted the defendant's plea and entered a judgment of conviction.1 9 Although this complicated procedure seemed to meet the letter of the law set forth in Hynes-because the defendant's plea was not actually entered until the death notice had been withdrawn-the Edwards court concluded that "it overlooks the essence of the Hynes- Jackson infirmity."'2 According to the Edwards court, "[i]f a prosecutor who has served a death notice is permitted to delay its withdrawal until after a defendant's plea allocution, then the choice to plead guilty has been made under compulsion of the death notice and a defendant's Fifth and Sixth Amendment rights have been impermissibly burdened."'" The court held that, under Hynes and Jackson, "it is constitutionally impermissible for prosecutors to negotiate guilty pleas to murder in the first degree while a notice of intent to seek the death penalty is pending."' 15. Id at 629, 706 N.E.2d at 1208-09, 684 N.Y.S.2d at 184-85. 16. There remains an open question whether a notice of intent to seek the death penalty is considered to be "pending," under Hynes, during the 120-day period within which the prosecutor may, according to New York law, file such a notice of intent, but before the prosecutor has elected to do so. See People v. Mower, 719 N.Y.S.2d 780 (3d Dep't 2001); People v. Owes, No. 2000-0161 (Monroe County Ct. Sept. 27, 2000); see also infra Part III.G (discussing Owes and Mower). 17. Hynes, 92 N.Y.2d at 629-30, 706 N.E.2d at 1209, 684 N.Y.S.2d at 185 (citing North Carolina v. Alford, 400 U.S. 25,39 (1970)). 18. People v. Edwards, 274 A.D.2d 754,755,712 N.Y.S.2d 71, 74 (3d Dep't 2000).