N.Y. Comp. Codes R. & Regs. tit. 9 § 5.27
TO: THE HONORABLE DENNIS C. VACCO
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK
STATE CAPITOL
ALBANY, NEW YORK 12224
WHEREAS, article 4, section 3 of the Constitution of the State of New York obliges the Governor of the State of New York to take care that the laws are faithfully executed, and I have solemnly sworn pursuant to article 13, section 1 of the Constitution to support the Constitution and faithfully discharge the duties of my office as Governor;
WHEREAS, chapter 1 of the Laws of 1995 restored the death penalty as a sentencing option in specified circumstances involving intentional killings, and requires that District Attorneys determine whether to seek the imposition of the death penalty after making informed, reasoned decisions on a case-by-case basis;
WHEREAS, on March 7, 1995, the same day chapter 1 of the Laws of 1995 was signed into law, the Bronx County District Attorney publicly stated that it was his "present intention not to utilize the death penalty provisions of [chapter 1 of the Laws of 1995]," a statement he has never retracted and to which his actions have remained consistent;
WHEREAS, a District Attorney who has instituted a blanket policy not to seek the death penalty violates his obligation to make informed, reasoned decisions on a case-by-case basis and thereby violates as well his sworn obligation to uphold the laws of this State. In addition, such a failure to exercise discretion must command my attention, for it implicates my sworn obligations to take care that the laws are faithfully executed, support the Constitution and faithfully discharge my duties as Governor;
WHEREAS, such a policy threatens the validity of death sentences imposed in cases prosecuted in other counties, because chapter 1 of the Laws of 1995 requires the Court of Appeals to determine whether a sentence of death is excessive or disproportionate to the penalty imposed in similar cases;
WHEREAS, the Bronx County District Attorney afforded additional reason to conclude that he indeed has a policy not to seek the death penalty when he precipitously announced in December of 1995, within hours of the arrest of Michael Vernon on charges that he had brutally murdered five innocent persons in Bronx County, that he would not seek the death penalty;
WHEREAS, and pursuant to my constitutional obligations, I inquired of the District Attorney whether his determination in the Vernon case reflected "a policy decision not to seek the death penalty in any case in Bronx County." The Bronx County District Attorney refused expressly to answer my inquiry, and thereby further heightened my concern that contrary to the law he was substituting his personal sense of right and wrong for that of the Legislature. Nonetheless, mindful of the gravity of the consequences for the District Attorney, I decided not to exercise my authority to supersede him in the prosecution of Michael Vernon. However, I cautioned the District Attorney that I would take all appropriate action needed to ensure that chapter 1 of the Laws of 1995 was faithfully executed in Bronx County;
WHEREAS, in light of the brutal murder of Police Officer Kevin Gillespie in the Bronx last week under circumstances strongly indicating that the case is one in which the death penalty is particularly warranted, on March 18, 1996 I directed Paul Shechtman, the State Director of Criminal Justice, to contact the Bronx County District Attorney. Mr. Shechtman spoke with the District Attorney and requested his assurance that if the Bronx County District Attorney's Office were to proceed with the prosecution of the persons arrested for officer Gillespie's murder and determined not to seek the death penalty, the District Attorney would so inform the Governor before taking any action that would irrevocably preclude the imposition of the death penalty. However, the Bronx County District Attorney declined to provide such an assurance;
WHEREAS, I therefore wrote to the Bronx County District Attorney on March 19, 1996, again requested his assurance that he did not have a policy against the death penalty, and expressly asked him whether there were circumstances under which he would seek the death penalty in Bronx County. However, the District Attorney once again did not provide this assurance and refused to answer my direct question. Moreover, the District Attorney reaffirmed his March 7, 1995 statement that it was his "present intention not to utilize the death penalty provisions" of the law. Inexplicably, the District Attorney maintained that this statement somehow "left the door ajar, however slight," to exercising the option of seeking the death penalty. However, no rational reading of the March 7, 1995 statement is consistent with the exercise of discretion in a conscientious fashion;
WHEREAS, other facts further confirm that the Bronx County District Attorney has an impermissible policy not to seek the death penalty in any case. Apart from the Vernon case, the District Attorney has indicted six other persons for first-degree murder and has determined not to seek the death penalty in any of these cases. Although this fact alone is not sufficient to demonstrate the existence of such an improper policy, the surrounding circumstances are telling. For example, I am informed that in one of these cases (as in the Vernon case) the District Attorney announced that he would not seek the death penalty within hours of the defendant's arrest--weeks before he was even indicted. And in another, the District Attorney made his announcement just two days after the defendant's arrest; again, this announcement occurred weeks before the District Attorney indicted the defendant. Clearly the speed with which the District Attorney made these announcements is completely inconsistent with a careful, reasoned case-by-case evaluation. Furthermore, the District Attorney has never asserted that he has established either an internal review committee or guidelines for assessing whether to seek the death penalty; and
WHEREAS, the foregoing compels me to conclude that my constitutional obligations require both that I supersede the Bronx County District Attorney with respect to the prosecution of those persons responsible for the murder of Police Officer Kevin Gillespie and that I do so before the District Attorney takes any action that would effectively prevent the Attorney General or his deputy from conducting an informed, reasoned assessment of whether to seek the death penalty;
NOW, THEREFORE, I, GEORGE E. PATAKI, Governor of the State of New York, by virtue of the authority vested in me by article 4, section 3 of the Constitution of the State of New York, the provisions of subdivision 2 of section 63 of the Executive Law and the statutes and law in such cases made and provided, do hereby require that you, the Attorney General of this State, as you deem appropriate and necessary after investigation, attend in person, or by one or more of your assistants or deputies, a term or terms of the Supreme Court to be held in and for the County of Bronx and that you, in person or by said assistants or deputies, appear before any grand jury drawn for any term or terms of said court, for the purpose of managing and conducting in said court and before said grand jury and said other grand juries any and all proceedings, examinations and inquiries and any and all criminal actions and proceedings which may be had or taken or before said grand jury and grand juries and proceedings which may be had or taken or before said grand jury and grand juries concerning or relating to:
Pursuant to subdivision 8 of section 63 of the Executive Law, I also find it to be in the public interest to require that you inquire into matters concerning the public peace, public safety and the public justice with respect to the subjects which are within the scope of this requirement, and I so direct you to do so in person or by your assistants or deputies and to have the powers and duties specified in such subdivision for the purposes of this requirement.
Pursuant to the provisions of subdivision 2 of section 63 of the Executive Law, all expenses incurred by the Attorney General in relation to the investigation and prosecution of the proceedings enumerated herein, including the salary or other compensation of all deputies and assistants employed, shall be a charge upon the County of Bronx.
Signed: George E. PatakiDated: March 21, 1996
[FN*] [Revoked by Executive Order No. 5 (Eliot Spitzer), infra.]
[Revoked by Executive Order No. 9 (David A. Paterson), infra.]
[Revoked by Executive Order No. 2 (Andrew M. Cuomo), infra.]
N.Y. Comp. Codes R. & Regs. Tit. 9 § 5.27