Posted: July 15, 2003


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 new appeal.)

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 repercussions.

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 direct."

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."