Posted: July 10, 2003
ELEVENTH HOUR IN A STEALTH MANNER"
By Celia Cohen
Grapevine Political Writer
A troubling murder case has engulfed all
three branches of the state government and some of its subordinate
parts in a nasty "king-of-the-hill" fight over who will have the
last word about Delaware's death penalty.
The governor is in this constitutional
free-for-all, as are the legislature, the Supreme Court, the
attorney general and a Superior Court judge.
In addition, the state prosecutor has been
dragged in. He has the misfortune to be at the bottom of the
governmental and political food chain and already has had a huge
bite taken out of him by the chief justice.
This separation-of-powers squabble seems as
messy as it can be. Its convoluted course began with the murder of a
36-year-old mother of four in a Wilmington parking lot on Dec. 18,
1999. It ends -- or at least this round of it will -- next Tuesday,
July 15, which is the deadline for the governor to decide what to do
about a death-penalty bill on her desk.
In between, there has been a great deal of
petulance and one-upmanship from officials who are given to believe
their power flows directly from the people and are used to getting
their own way.
"I don't think we anticipated it being an
issue like this when the bill was introduced or the General Assembly
passed it," Chief Deputy Attorney General Ferris W. Wharton said in
a consummate understatement.
Immediately at issue is House Bill 287,
regarding capital punishment. Under Delaware law, a jury is
responsible for recommending to a judge whether a murder defendant
deserves to be executed, and the judge is to give "great weight" to
the jury before setting the sentence. Under the bill, the judge
would give only "consideration as deemed appropriate" to the jury's
As constitutional matters go, it was not
that long ago that juries alone set the sentence. Their role was
changed to an advisory one by a 1991 law, and with this new
legislation, their recommendation would count for even less.
The bill was drafted by Attorney General M.
Jane Brady's office. The legislature approved it overwhelmingly at
the end of June in the last hectic days of the 2003 session. The
clock is ticking on Gov. Ruth Ann Minner's decision to sign it, veto
it or allow it to become law without her signature. The Supreme
Court may jump in before she acts.
The bill is part of the acrimonious fallout
from the trial of Sadiki J. Garden, who was convicted of killing
Denise Rhudy while trying to rob her outside the Bottlecaps
restaurant in Wilmington. On two separate counts, the jury voted
10-2 and 9-3 against a death sentence, but Superior Court Judge John
E. Babiarz Jr. still imposed it.
The Delaware Supreme Court in January
affirmed the conviction but sent the case back to Babiarz for
re-sentencing, because it found he failed to give the jury its due.
Babiarz in May re-sentenced Garden to death,
a decision that is back before the Supreme Court on appeal. In
explaining his reasoning, Babiarz blistered the Supreme Court,
escalating the stakes and joining in battle.
“The [Supreme Court] decision does not
correctly state the law of Delaware. The orderly processes of
government, however, do not allow the [Superior] Court to act on its
opinion. A trial court must always follow the mandate of an
appellate court even if firmly convinced that the appellate court
erred,” Babiarz wrote.
In addition, Babiarz egged on the General
Assembly to come to his side. “Where the Delaware Supreme Court has
incorrectly interpreted a statute, it falls to the legislature to
correct judicial misinterpretation and clarify legislative intent.
If the Delaware General Assembly believes that the [Supreme Court]
decision does not express the will of the people, then it should
adopt an amendment to the capital punishment statute which rejects
the [Supreme Court] ruling,” he wrote.
The Attorney General’s Office, which had
asked for the death penalty for Garden, took up Babiarz’s cause. It
drafted legislation, writing an “in-your-face” attack on the Supreme
Court in a summary explaining the reason for the bill.
“This act will reverse the Delaware Supreme
Court’s judicial misinterpretation of Delaware’s death penalty
statute,” the summary read.
The bill was introduced on June 25 and on
its way to the governor by June 30.
The Supreme Court was blindsided. It led to
some sort of conversation between Brady and Chief Justice E. Norman
Veasey, according to Wharton, and afterwards State Prosecutor Steven
P. Wood on July 8 wrote a letter of apology to Veasey.
“This morning the attorney general reminded
me of our failure to provide the court with an advance copy of [the
bill.] I very much regret the fact that I failed to ensure this was
done,” Wood wrote. “Somehow, with the crush of business at the end
of the legislative session, I neglected to ensure that this
important task was attended to.”
After the slights from Babiarz, from the
attorney general, from the legislature, Wood’s letter was all the
opening Veasey needed to vent as only a chief justice can.
He fired off a three-page response the next
day, and what a response it was.
“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.
“In a civilized society – and I think
Delaware is such a society – we should talk to each other in advance
and not have to apologize later, blaming ‘the crush of business at
the end of the legislative session,’ as your letter rationalized.”
Veasey also noted that the governor has the
option to sign the bill, veto it – or even, as he tellingly put it,
“seek an opinion of the justices.” Then he sent a copy of the
correspondence to Minner, because it was, after all, “in the public
interest that she should be made aware of these issues.”
Minner is a Democrat. Brady is a Republican.
Brady has never ruled out running against Minner for governor in
2004, although the Republican nominee is expected to be retired
Judge William Swain Lee.
Minner took Veasey’s hint. She sent a letter
to the court on Wednesday to ask for an opinion on whether the
legislation was constitutional. The court, if it wants, can vent
There the matter stands. It has left behind
a dumbfounded Steve Wood, the state prosecutor, who could say only,
“My letter to the chief justice was intended by me to be private
correspondence, and I regret the fact that it has traveled beyond
The checks and balances of government can be
as remorseless as a hockey check. The governor is positioned to
deliver another one if she vetoes the bill – perhaps with an assist
from the Supreme Court. The legislature, of course, has the power to
override a veto, and so this constitutional game of “king of the
hill” could go on.
As Ferris Wharton, the chief deputy attorney
general, noted, “Who knows who will feel put upon?”
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