What Went Wrong in New York

"How Two Questions Caused Death Penalty Misstep," by A.G. Sulzberger is in the New York Times.

After five months, the death penalty trial of Ronell Wilson had entered its last few minutes when a federal prosecutor presented some parting thoughts for the jurors to consider as they deliberated.

If Mr. Wilson, who had executed two undercover police officers on Staten Island, truly accepted responsibility for the killings, why had he not pleaded guilty? And if Mr. Wilson truly felt remorse for his actions, why had he not taken the witness stand to say so?

It is not known whether those statements contributed to the jury’s decision to issue the first death sentence in New York in more than a half century. But what is clear is that this week, three and a half years after the sentence was issued, those statements have spared Mr. Wilson from lethal injection, at least temporarily.

A three-judge panel on the United States Court of Appeals for the Second Circuit decided on Wednesday to vacate the death penalty sentence Mr. Wilson received in Federal District Court in Brooklyn, citing the prosecutor’s statements in the penalty phase that they said violated the defendant’s constitutional right.

The decision by the appeals court, which ruled 2 to 1 in favor of Mr. Wilson, prompted surprise from some legal experts, who wondered how a respected veteran prosecutor made such a simple procedural mistake and why the judge allowed his statements to stand despite an objection by the defense.

“The prosecutor is not allowed to advance his or her case by exploiting the fact that the defendant did something that he has every constitutional right to do,” said Eric M. Freedman, a professor of constitutional law at Hofstra University. “If it were permitted, the constitutional right would be undermined.”

Coverage of the ruling is here.