Posted: July 15, 2003
ATTORNEY GENERAL SAID TO THE CHIEF JUSTICE . . .
By Celia Cohen
Grapevine Political Writer
Attorney General M. Jane Brady appears to be
having her way in an unusually unruly and high-decibel dispute about
Delaware's death penalty, and why not?
It shows that Brady, a three-term
Republican, is capable even in a non-election year of renewing her
credentials as a pit bull of a campaigner. If civility takes a
powder, Brady does not.
While Brady has duked, others have ducked --
including the governor, the state Supreme Court and perhaps the
chief justice himself, at least for now. The upshot is, the way in
which the Attorney General's Office wants the death penalty to be
applied became law on Tuesday.
Furthermore, the last ringing words on the
matter came from a Scud missile of a letter Brady wrote Monday to
Chief Justice E. Norman Veasey to defend her office, accuse him of
discourtesy and even speculate there could be questions out there
about the court's fair-mindedness.
It is a letter that rushes in where others
have feared to tread, especially members of the Delaware bar, as
Brady is, but is she sorry about it?
"I regretted the necessity of it," Brady
said. That is what regret sounds like from someone whose computer
screen saver displayed wording taken from Winston Churchill's famous
quotation, "Never give in. Never, never, never, never."
What Veasey thinks of the letter has to
wait. Court Administrator Stephen D. Taylor said the chief justice
was out of state Tuesday and has yet to read it.
This dispute about the nature of the state's
death-penalty law has been percolating since May but only boiled
over in public last week. Under the law, juries vote on whether
defendants deserve a death sentence, but their decision is only
advisory, with judges having the final say. The law was enacted in
1991 to scale back the role of juries, which were responsible up
until then for determining the sentence.
The jurors' role recently became an issue
again because of the murder case of Sadiki J. Garden, convicted of
killing a 36-year-old mother in a robbery that went bad outside the
Bottlecaps restaurant in Wilmington in 1999.
Superior Court Judge John E. Babiarz Jr.
sentenced Garden to death, overruling the jury's recommendation
against it, only to have the Supreme Court on appeal instruct him to
reconsider and give regard to the jury. Babiarz not only re-issued
the death sentence but assailed the justices for "judicial
misinterpretation" of the death-penalty statute and called on the
legislature to back him up by passing a law overriding the Supreme
Court. (Babiarz's latest sentence is back before the high court on a
If Babiarz meant to start something, he did.
The Attorney General's Office, which wanted the death penalty for
Garden, took the cue and and drafted legislation designed to hem in
juries even more. Under House Bill 287, judges no longer would have
to give jurors' recommendation "great weight" but only
"consideration as deemed appropriate."
The bill was introduced on June 25 and on
its way to the governor by June 30. The Supreme Court never saw it
coming -- or going.
Last week State Prosecutor Steven P. Wood
wrote Veasey a letter of apology, saying no end-run was intended,
and drew a tart response. "I take you at your word that you did not
intentionally ram this bill through the General Assembly at the
eleventh hour in a stealth manner in order to evade vetting it with
me, members of the Supreme Court or any representatives of the
judicial branch," Veasey wrote.
What was more, the chief justice sent Gov.
Ruth Ann Minner a copy of the correspondence, noting that she had
the option to ask the court for an advisory opinion before deciding
whether the bill should become law.
It looked like a glorious opening for Minner,
a Democrat, to let the court assert itself at the expense of Brady,
a rival Republican who has made noises about running for governor,
but it didn't happen that way. While Minner asked for the advisory
opinion, the justices replied mildly, saying there was nothing
unconstitutional about the bill.
Minner got out as quickly as she had gotten
in. She hadn't spent 18 years in the legislature and eight years as
lieutenant governor for nothing. She did what the legislators did.
She showed she was tough on murderers by signing the bill into law.
The matter seemed ready to end there. Then
the new letter from Brady to Veasey appeared. She called his letter
to Wood "wholly inconsistent with the notions of civility you
purport to advance" and also suggested the chief justice had
jeopardized the good standing of his court.
"I will refrain from commenting on the
unprecedented extent to which your letter has injected the court
into the policy considerations of the legislative process or on the
thinly veiled solicitation from the governor for a request for an
advisory opinion, in derogation of commonly understood notions of
separation of powers.
"I am concerned however, that the Garden
matter get a fair consideration from the court, and would hope that
you recognize that the court's action has created the perception
that that goal may have been placed in jeopardy," Brady wrote.
The letter was vintage Brady, a page out of
her own campaign book. Her walloping style was there in her first
race, an unsuccessful run in 1990 against U.S. Sen. Joseph R. Biden
Jr., when she distributed an attack video recycling character issues
from his candidacy for the 1988 Democratic presidential nomination.
It was there in her most recent race for attorney general last year,
when Democrat Carl Schnee was pilloried as a defense lawyer who got
criminals off the hook.
What politicians say about other politicians
is one thing. What lawyers say about the court is something else.
Under the Delaware Lawyers' Rules of Professional Conduct, attorneys
can be disciplined for making statements in reckless disregard of
the truth about the integrity of a judge.
It has happened. One lawyer was suspended in
2000 in part because he told a judge, "I have never observed a white
person in a position of power, such as yourself, apologize to a
black person even when they know they are wrong." Another lawyer was
put on probation in April for saying a judge didn't rule on the
merits in a case, but out of concern for personal or political
Brady believes she has done nothing to draw
a disciplinary charge. "This is not a legal issue. This is a
political issue and a legislative, public policy matter," she said.
"I tried very hard not to be too critical of the court but to be
Short of disciplinary action, the Delaware
State Bar Association also could step in. It has a committee that
responds to criticism of judges when they are constrained from
responding themselves. Charles S. McDowell, the bar association
president, said Tuesday the committee had taken no action, but if it
does, the lawyers' organization will make it public.
For now, Brady has the law she wants and the
final say. Still, it may be too early to count out the Supreme
Court, which is accustomed to having its word as law. In the
advisory opinion to the governor, the justices hinted this matter
may not be over yet.
"The role of the courts is centered on
litigation that may come later, raising interpretation and
constitutional issues for decision," they wrote. "It is then that
the courts are free to speak."
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