Staff Reports
April 19, 1996
The legal battle between New York Governor George Pataki and a local prosecutor over the state's death penalty is heading to court.
District Attorney Robert Johnson of the Bronx has sued the governor for removing him from a case involving the fatal shooting of a police officer. Johnson was taken off the case when he refused to make a commitment to seek the death penalty against the killers of Officer Kevin Gillespie. The governor assigned state Attorney General Dennis Vacco to the case.
In his lawsuit, Johnson argued that "the governor seeks to use the power of his office to impose on prosecutors throughout the state his beliefs as to the appropriateness of the death penalty, both in general and in any given case."
Johnson claims New York's capital punishment law does not require district attorneys to consider execution in first-degree murder cases if they choose not to. New York reinstated the death penalty in March 1995.
The public feud between Johnson and Pataki has raised questions about the breadth of the governor's authority, the limits of prosecutorial discretion and the rights of voters to be represented by the prosecutor of their choice.
Shoot-Out in The Bronx
The controversy erupted following Gillespie's murder on March 14. Police say Angel Diaz and two friends, Jesus Mendez and Ricardo Morales, hijacked a car, pistol-whipped and robbed a pedestrian and led police on a chase that ended in a shoot-out in the Bronx. Gillespie was shot to death and five other people, including another police officer and Diaz, were wounded.
Soon after the shooting, Gov. Pataki demanded to know whether Johnson would seek the death penalty against Gillespie's killers.
Johnson, who had publicly expressed his opposition to the death penalty, promised to weigh all the facts before making a decision. He argued that the law gives district attorneys 120 days from the time of an indictment to decide whether to seek the death penalty.
But the governor was convinced that Johnson never would bring a death penalty case in the Bronx, and removed him on March 21.
"We cannot have different standards and different laws in different parts of this state," Pataki said at the time. "We cannot have the death penalty in New York state except the Bronx."
Diaz was indicted April 16 on charges of first-degree murder, attempted murder, criminal possession of a weapon among other charges. Mendez and Morales were charged with second-degree murder, attempted murder and other charges. Diaz is the only suspect who may face the death penalty.
Following Diaz's indictment, Vacco stopped short of promising to seek the death penalty. But he said that his prosecutors had not yet found any reason not to pursue the death penalty and that they would rely on Diaz's lawyers to provide them with any such information.
"As I stand here today, I have not arrived at any judgment," Vacco said at a news conference. "But it is clear that on first blush, there are potential aggravating factors that would qualify this case for death penalty prosecution."
Vacco said the New York State Constitution clearly grants the governor the authority to replace prosecutors who refused to uphold the law. Johnson fell into that category, he said, when he closed his mind to consideration of the death penalty.
