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Prosecutor sticks to his convictions Death penalty: Bronx District Attorney Robert T. Johnson opposes the death penalty and has declined to seek it in capital crimes, leading to a showdown with New York Gov. George E. Pataki.

THE BALTIMORE SUN

When New York's governor gave Robert T. Johnson an ultimatum, the Bronx district attorney refused to blink.

Gov. George E. Pataki demanded to know if the prosecutor would seek the death penalty against an accused cop killer. His concerns about the death penalty well known, Mr. Johnson firmly told the governor he would decide within the limits of the law.

Mr. Pataki made good on his threat. He yanked the case from Mr. Johnson on Thursday.

The district attorney responded as those who know him knew he would.

A former judge and career prosecutor, Mr. Johnson, 48, committed his staff to join the attorney general of New York in prosecuting the suspect. And then, the usually soft-spoken, self-effacing Mr. Johnson told the governor he would sue him.

Mr. Johnson's stance in this very public and political dispute hasn't surprised his colleagues in the Bronx County Courthouse. Principled and passionate, Mr. Johnson is not afraid to take a controversial stand.

"If he feels strongly about something, he's generally not going to compromise," said Irwin Shaw, the chief criminal defense lawyer in the Legal Aid Society's Bronx office. "He is a very decent and fair-minded person. And I don't always agree with him on issues."

Mr. Shaw and others described Mr. Johnson as a tough prosecutor and skilled litigator who, as a young assistant district attorney, was not afraid to take on the tough cases. A gentle man with a low-key manner, Mr. Johnson answers to his first name in the courthouse hallways. He plays outfield on the office softball team.

As district attorney, Mr. Johnson challenged the Bronx judges who were circumventing the state's one-year mandatory sentence for a handgun crime. He took the issue to an appeals court and won. Last year, Mr. Johnson all but wiped out plea bargaining in his office.

"No one would ever accuse him of being soft on crime," said Paul T. Gentile, a former district attorney who worked with Mr. Johnson. "But he does have this moral problem with the death penalty and everyone who knows him knows it. It is a question of conscience."

Mr. Johnson was elected Bronx district attorney in 1988. He has been re-elected twice. Last March, the state officially revived the death penalty. At that time, Mr. Johnson months before his re-election shared with Bronx residents his reservations.

A Bronx native, Mr. Johnson talked about his upbringing by parents who instilled in him "an intense respect for the value and sanctity of human life." He talked about his 20-year career in the criminal justice system, the devastation inflicted by criminals, the "rage and thirst for vengeance" that consumes victims' families.

Mr. Johnson recalled a case he prosecuted: a convicted murderer whose brother later pleaded guilty to the crime. "Would even a brother come forward to save an innocent man if the consequence was death? And if he didn't, who would have been able to throw the switch back?"

He questioned how often the death penalty would be imposed by a jury, the cost of capital cases and the dollars that might be better spent on crime-fighting and prevention programs.

For those reasons, he said, "While I will exercise my discretion to aggressively pursue life without parole in every appropriate case, it is my present intention not to utilize the death penalty provisions of the statute."

Last fall, Mr. Johnson handily won re-election with 80 percent of the vote.

Reinstating the death penalty in New York was Mr. Pataki's ticket to the governor's mansion. In 1994, then-Gov. Mario M. Cuomo, an opponent of the death penalty, was running for re-election. His opponent was Mr. Pataki, a legislator from upstate New York who vowed to bring the death penalty back to the Empire State.

The new law was enacted within months of Mr. Pataki's victory. It not only established criteria for seeking the death penalty, it also created a sentence of life without parole and increased from 15 to 20 years the amount of prison time someone given a life sentence must serve before they can be paroled.

The law gives district attorneys the power to seek the death penalty in certain cases. A district attorney must make a decision within 120 days of indictment.

"That makes great sense. The whole intent of the statute was to make a thoughtful decision," said George Kendall, an attorney with the NAACP Legal Defense Fund, who handles death penalty cases across the country.

But within days of the March 14 shooting death of police Officer Kevin Gillespie, Mr. Pataki was calling for the death penalty for the defendant, an ex-convict who had been paroled. It wasn't the first time the governor commented on a death penalty case. Last December, he questioned Mr. Johnson in another possible death penalty case.

This time he wouldn't let up.

"I respect that you have taken a position in opposition to the death penalty because of your personal convictions," the governor said in a March 19 letter to Mr. Johnson. "However the people have spoken. The death penalty is the law in New York state and I cannot permit any district attorney's personal opposition to a law to stand in the way of its enforcement. No one, including a district attorney can substitute his or her sense of right and wrong for that of the Legislature."

Mr. Pataki challenged the district attorney. He wanted to know if there were circumstances under which he would seek the death penalty. He set a deadline for an answer.

Mr. Johnson responded that he had not said "never" in terms of seeking the death penalty. He said he would exercise his right under the law to review the case in the 120 days allotted him. "Anything less is irresponsible," Mr. Johnson told the governor in a letter.

In taking Mr. Johnson off the case, Mr. Pataki relied on a state law that gives him broad discretion to appoint a special prosecutor. But it's a law that has been used in cases of malfeasance, not a difference of opinion on policy.

The governor's actions have been described as everything from meddling to bullying. Lawyers in New York and elsewhere wonder how far the governor would go.

"It does seem to us the people of the Bronx know what Robert Johnson stood for, know what they want," said Richard Dieter of the Death Penalty Information Center, a Washington-based research group.

Gerald B. Lefcourt, a Manhattan attorney and officer of the National Association of Criminal Defense Lawyers, views Mr. Pataki's move as political and only that.

"The governor has discovered, like apparently every other politician, [that] if you yell about things that the constituency [wants to hear] they won't look at other things you're doing," said Mr. Lefcourt. "This is a guy who is doing an awful lot of cutting of important services to the people of New York, and the way to have that not debated is to have a criminal justice issue every three days."

Pub Date: 3/25/96

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