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Lawyer to be sentenced for murder; Tomorrow, Capano faces death row or lifetime in prison

Given one last chance to address the court weighing his sentence, convicted murderer Thomas Capano was too proud to beg for his life. Tomorrow, he finds out if he will lose it.

Capano, the once high-powered Wilmington, Del., lawyer convicted in January of killing his lover, gubernatorial aide Anne Marie Fahey, faces death by lethal injection or life in prison. A jury recommended by a 10-2 vote that he be put to death, but the decision rests with Delaware Superior Court Judge William Swain Lee. State law requires that the judge give "great weight" to the jury's recommendation.

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"Bill Lee is known to be in favor of the death penalty," said Joseph Hurley, a prominent Wilmington defense attorney and longtime friend of Capano. "Plus, there is the clear mandate from the jury."

If Capano receives the death penalty, he would be a most unusual resident of death row, given his wealth and prominence in the state.

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The sentence will end a tumultuous criminal case that began June 27, 1996, when Fahey, an aide to Delaware Gov. Thomas R. Carper, vanished after a dinner date with Capano, then a bond lawyer with a major Philadelphia firm. He claimed to know nothing about her disappearance but was arrested for the murder the next year.

At his trial, Capano, a wealthy, one-time counsel to the governor, provided a shocking version of the crime: That it was his longtime mistress, Deborah MacIntyre, who shot Fahey that night after finding him at home with the younger woman.

Jurors didn't believe him, and found Capano guilty of first-degree murder Jan. 17.

Hurley, who represented Capano but quit in April for reasons he refuses to disclose, believes his friend made a mistake by choosing to testify in his own defense.

"He wounded himself mortally by testifying," Hurley said. "He demonstrated himself to be a completely controlling individual, which fell right in with the prosecution's case."

Prosecutors contended that Capano killed Fahey because she tried to break off their 2 1/2-year, on-again, off-again affair. Prosecutors frequently highlighted an entry in Fahey's diary in which she called him a "controlling, manipulative, jealous, insecure maniac."

Arrogant witness

On the witness stand, Capano sometimes came across as arrogant, argumentative and cavalier about his many extramarital affairs. He sparred with lead prosecutor Colm Connolly, responding to questions with questions of his own. Lee reprimanded him several times, reminding him that he was in court as a witness and not a defense attorney, and removed him from the courtroom one day after a particularly heated outburst.

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After the conviction, jurors returned to the courtroom to hear further testimony and begin considering Capano's punishment. Fahey's siblings brought many in the courtroom to tears as they spoke of how devastating it was to lose their youngest sister.

Later, Capano's teen-age daughters, his ex-wife, his mother and brothers took the stand to plead for his life. That was something Capano refused to do.

"I'm not going to sit here and beg for my life," Capano told the jury. "I do ask you to consider [my family]. For their sake, I do ask you to let me live."

"That was a mistake," said Richard L. Wiener, a psychology professor who has studied jury decisions on death-penalty cases. "Showing remorse is an important mitigating circumstance."

Wiener, a professor at St. Louis University, said Capano may have also been hurt by the wide media attention the case drew before the trial.

"In well-publicized cases, where the gruesome details are known, juries tend to go with the death penalty," he said.

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Circumstantial evidence

Wiener said he was surprised, though, that jurors so overwhelmingly favored the death penalty in a case built largely on circumstantial evidence. Jurors are instructed that they must find that the defendant's guilt has been proven beyond a reasonable doubt to recommend death, but there is no consensus on how that standard should be defined, he said.

"It's an extremely vague term," Wiener said.

Fahey's body was never recovered, nor was the murder weapon. Capano testified that after Fahey was shot, he stuffed her body into a cooler and dumped it in the Atlantic about 60 miles off the New Jersey shore.

The cooler, bearing a bar code that identified it as one purchased by Capano before the murder, was found bobbing in the ocean, providing police with one of their few pieces of physical evidence.

Death-row millionaire

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If Lee sentences him to death, Capano would find himself in a population far different from his former milieu.

"There just aren't too many millionaires on death row," said Valerie Hans, a professor of criminal justice at the University of Delaware. "I don't know that there are any other people on death row as wealthy as Capano."

In addition, Hans said, Capano was privileged in another way that distinguishes him from many death-row inmates.

"He was exceedingly well-represented," Hans said of Capano's high-priced defense team, led by Joseph Oteri of Boston. "It was the wisdom in Delaware that it was not really the attorneys' doing that wound up getting the jury's majority verdict for the death penalty. It was his going against the advice of his attorneys and how he conducted himself during the trial."

Even as sentencing brings the criminal case against Capano to an end, his legal woes continue. Fahey's siblings filed a wrongful death lawsuit against Capano and his family, but it was put on hold while the criminal case proceeded. Last month, a judge ruled that the civil case can proceed, and Capano must respond to the suit by March 26.

Pub Date: 3/15/99


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