New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle A - Governor's Office › Chapter I - Executive Orders › Part 5 - Executive Orders (George E. Pataki) › Section 5.27 - Executive order no. 27: requiring the attorney general to supersede the district attorney of bronx county with respect to the murder of police officer kevin gillespie

Current through Register Vol. 46, No. 28, July 10, 2024
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:
(a)
				  any and all unlawful acts or omissions or alleged acts or omissions relating to
				  the killing of Police Officer Kevin Gillespie and any involvement therein that
				  Jesus Mendez, Ricardo Morales, Angel Diaz or any other person may have
				  had;
(b) any other alleged crimes
				  or unlawful acts or omissions related to or committed incident to these alleged
				  crimes or unlawful acts or omissions, or discovered in the investigation or
				  prosecution thereof; and
(c) any
				  and all acts or omissions or alleged acts or omissions occurring heretofore or
				  hereafter to obstruct, hinder or interfere with any inquiry, prosecution, trial
				  or judgment pursuant to or connected with this requirement; and that you
				  conduct, manage, prosecute and handle such other proper actions and proceedings
				  relating thereto as may come before said terms of court, or any term of said
				  court at which any and all indictments which may be found and which may
				  hereafter be tried, pursuant to or in connection with this requirement, and in
				  the event of any appeal or appeals or other proceedings connected herewith, to
				  manage, prosecute, conduct and handle the same; and that in person or by your
				  assistants or deputies you, as of the date hereof, supersede and in the place
				  and stead of the District Attorney of the County of Bronx exercise all the
				  powers and perform all the duties conferred upon you by statutes and law in
				  such case made and provided and this requirement made hereunder, and that in
				  such proceedings and actions the District Attorney of the County of Bronx shall
				  exercise only such powers and perform such duties as are required of such
				  District Attorney by you or your assistants or deputies so attending.
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.]