POLL: Residents Oppose the Death Penalty, Assemblyman Thiele wanted to know where his constituents stood

According to a survey taken by Assemblyman Fred W. Thiele Jr., residents of East Hampton Town are opposed to the death penalty, 61 to 39 percent, while opinion across the Second Assembly District, which also includes Southampton and Brookhaven Towns, is fairly evenly split.

Southampton residents registered opposition to the death penalty, with 56 percent voting against it 44 percent voting in its favor. Brookhaven showed a near reversal of the East Hampton results, with residents favoring the death penalty, 63 to 37 percent. In all, 1,200 residents of the three towns were questioned.

Mr. Thiele decided to find out what his constituents thought as the State Senate's recent attempts to revive the death penalty in New York were defeated in an assembly committee.

Last June, the New York State Court of Appeals declared the state's death penalty statute unconstitutional because a provision of the law was coercive. "The deadlock instruction" provided that in cases of jury deadlock, life imprisonment with parole would be imposed. The court's opinion was that those who rejected the possibility of parole would vote to impose the death penalty instead.

Mr. Thiele said that the district's divided stance is reflective of the state's position as a whole. A recent statewide poll found that 46 percent of state residents would like to see the death penalty remain dormant. Those that support its reinstatement only totaled 42 percent. In a poll conducted by Siena College, 29 percent of state residents supported the death penalty over life without parole as the maximum sentence.

Mr. Thiele said that he would have voted against the bill that the Assembly Codes Committee defeated if it had come to a full vote.

"I believe the death penalty should be used sparingly for the most heinous crimes such as terrorism and only where proof of guilt is irrefutable. The bill before the Legislature this year would not have met such standards," he said.

Jacqui Lofaro, a Bridgehampton resident and Southampton Town Planning Board member, produced a film with Victor Teich on the death penalty called "The Empty Chair," which was screened at the Hamptons Film Festival and the New York Bar Association last month. The film has also been shown on television and can be seen on the Hallmark Channel on June 12.

Her film presents both sides of the issue, but Ms. Lofaro said she was heartened by the local survey results. "I think people in this country want fairness in trials and the criminal justice system.

. . . It's time for people in New York State and Suffolk County to re-examine this. All arguments for its use have proven to be untrue."

She added that DNA evidence produced by groups like the Innocence Project, founded by Barry Scheck and Peter Neufeld at the Benjamin Cardozo School of Law in 1992, had shown states like Illinois, which had a high number of false convictions, that the system is fallible.

Edward Burke Jr., a defense attorney based in Sag Harbor, also favorably cited the project's work with DNA in allowing cases to be considered "through the facts of evidence. As a defense attorney, I'm pleased to see where it's at" in terms of the effect of such evidence on appeals in the decade or so since the project started.

Mr. Thiele said that the use of DNA in capital cases "cuts both ways." It makes the "system closer to perfect" so that juries will be less likely to doubt the guilt of someone whose DNA evidence links him to the crime, but also raises questions about the fallibility of previous cases.

"It's tricky stuff," Ms. Lofaro said, adding that she believed that some legislators who initially voted for the death penalty "are reconsidering their vote."

The death penalty by lethal injection was first enacted in the state in 1995. Seven people have been sentenced to death since then, three in Suffolk County under former District Attorney James Catterson, who helped draft the death penalty law. None have been executed.

Two defendants had their sentences overturned by the court to life without parole. One defendant's sentence was changed to 37 1/2 years to life. It was one of the Suffolk County defendants, Steven LaValle, whose case overturned the death penalty and may have invalidated the sentences of the other three prisoners on death row. Two cases remain before the Court of Appeals pending the law's reinstatement.

Suffolk County District Attorney Thomas Spota favors the death penalty, but has not pursued it since he took office in 2002. Three cases were eligible, but he declined each time, according to Robert Clifford, a spokesman for Mr. Spota.

Mr. Clifford said that district attorneys are reluctant to discuss in detail the criteria that are involved in such decisions because the information shared publicly often ends up as "arguments in legal briefs."

There are some verifiable standard criteria, however. The charge must be first-degree murder. If the crime includes torture, if it is an act of terrorism, or if the victim is a police officer, it automatically qualifies for consideration of the death penalty.

While he said that it was never discussed, Mr. Burke, who was one of Daniel Pelosi's defense attorneys, said that the charges against his client might have qualified for death penalty consideration. Mr. Pelosi was sentenced to 25 years to life in prison.

Mr. Pelosi was fortunate in being able to hire Mr. Burke and Gerald Shargel, an attorney famous for defending Mafia figures. For people who could not afford that level of representation, the State Legislature set up three Capital Defenders Offices when the law took effect.

The office provided experienced defense attorneys to build a coordinated case for both the trial and sentencing. Under that system, Mr. Clifford said, the district attorney had to notify the defender's office as soon as a case was deemed eligible so that an adequate attorney was available for the arraignment.

Those offices still exist while the fate of the law is being determined. Gov. George E. Pataki has said he will discontinue funding the offices if the death penalty is not reinstated by the end of June. When the law was repealed, several cases in the state were pending in which either death notices had been filed or were under consideration. Since the Court of Appeals invalidated the law, only one prosecutor has sought the death penalty. If the law is revived, that case can then go to trial.

The state senate amended the law to allow the option of life without parole in case of a jury deadlock, but it was that version of the law that was defeated in the Assembly Codes Committee. The full assembly has not voted on the issue and probably will not anytime soon, according to Mr. Thiele.

Mr. Thiele said that support for the death penalty has "waned in recent years." He attributed the change to the overall reduction in violent crimes across the country and the "spectacle" raised by states such as Texas where the death penalty is very frequently imposed. "It makes people very uncomfortable," he said.

The League of Women Voters of New York State issued a report last July on the use of the death penalty in the state. Its findings led to a policy position in favor of permanently abolishing the law and imposing life sentences without parole instead at the beginning of this year.

The United States Conference of Catholic Bishops has recently mounted a campaign to end the death penalty across the country. A recent poll of Catholics found that fewer than half support the death penalty and that includes 29 percent who have changed their minds after supporting it initially.

"From a political point of view, it's not the issue it was 10 to 15 years ago," Mr. Thiele said.