Posted: July 10, 2003


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 recommendation.

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 again.

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 its addressee.”

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?”