My perspective on the recent New York death penalty cases.

• Author: Smith, Robert S.
• Position: Symposium: State High Court Judges on Making Their Hardest Decisions

Thank you. I am perhaps going to disappoint you, too, by not talking about same-sex marriage. Just so you will not think that I am courting popularity, I will mention the fact that I am the author of a same-sex marriage decision which is not on the same side as the decisions that Justice Greaney and Justice Norcott talked about. (1) And if I were to discuss it I am sure I would make quite a few enemies in this room, which I do enjoy doing--I like courting unpopularity.

But I am actually going to pass up that opportunity today because when I thought about the hardest decision I had under the state constitution, it was a very easy decision to pick.

It's a case called People v. Taylor, (2) and I am sorry to say, I will probably wind up being a good guy. It undermines my contrarian tendencies, but I think when I get to the end of the story, I will be able to make myself the hero.

I think it might be of some interest for me to tell you about myself to put Taylor in context. It is a capital punishment case and I guess I should tell you a little about my life as it has related to capital punishment before I became a judge.

I cannot say I am anything political now because of course I am a judge and I have no politics, but until I became a judge I was a conservative Republican. (3) And despite that I found myself, for reasons too complex to describe here, representing defendants in a couple of capital punishment cases. Indeed, those arguments in the Supreme Court that Professor Bonventre mentioned were capital punishment cases where I was representing capital defendants, one whom was executed and the other who is still alive. (4)

I wound up having spent a lot time fretting about capital punishment, with a complicated relationship to it. I was undoubtedly less friendly to capital punishment than most conservative Republicans, and friendlier to capital punishment than most capital punishment defense lawyers. And that was the state of mind I had as I joined the New York Court of Appeals, at a time when capital punishment was a very tense issue facing the court.

And what is the relevance of what I have just told you to the decisions I made on the court? I hope the answer is none at all.

It is not my view of a judge's function that he should try to advance his personal preferences through the court, although I do not claim to the illusion that a judge's preferences have no impact on his decisions. I may not even say that they should have no impact, but I do not like the idea that a judge should approach either a case or a series of cases with an agenda in an attempt to remake the law or society as he would prefer it to be. Of course, maybe the fact that I did not know what I thought about capital punishment helped me to fulfill that goal in this case. I guess I cannot be accused of voting my prejudices when I do not know what they are.

At the time I came on the Court of Appeals, there had been a death penalty statute (5) on the books of New York--part of the new wave of death penalty statutes--for nine years. The number of executions was zero; no one had ever been executed under the statute. Two or three death sentences had come to our court and been set aside. (6)

Within my first six months, we confronted a case called People v. La Valle, (7) a horrible case, as all death penalty cases are.

Mr. La Valle was a resident of Long Island who early one morning encountered a fairly young woman who was out for her morning jog; (8) and as far as we know, she was someone he had never seen before. Apparently, for no other reason than that he was in an ugly mood that morning, he attacked her viciously with a long piece of metal shaped like a screwdriver, killing her with dozens and dozens of stab wounds. (9) He was sentenced to death. (10)

The case before us turned on something...