October 19, 1984 MASS. DEATH PENALTY RULED ILLEGAL Joseph M. Harvey, Globe Staff The Massachusetts Supreme Judicial Court ruled yesterday that the state's revised death penalty law is unconstitutional because it encourages defendants in murder cases to plead guilty rather than face a jury trial, thus avoiding the possibility of the death sentence. The justices' 4-3 ruling struck down an emergency law signed by former governor Edward J. King to restore the death penalty as of Jan. 1, 1983. The justices said the law's wording is such that a defendant who pleads innocent to a first degree murder charge and demands a jury trial risks being sentenced to death. "The penalty provisions enacted in 1982 violate Article 12 of the Declaration of Rights of the Massachusetts Constitution," Justice Paul Liacos wrote in the majority opinion. "They impermissibly burden both the right against self incrimination and the right to a jury trial guaranteed by that article." The court made the ruling after a request from John J. Conte, the Worcester County district attorney, for guidance in the trial of three men accused of murdering state trooper George L. Hanna on Feb. 26, 1983. Dist. Atty. Kevin M. Burke of Salem also urged the court to rule promptly because of two murder cases pending in Essex County. There have been no executions in Massachusetts under a death penalty law since May 9, 1947. With Chief Justice Edward F. Hennessey concurring in a 12-page separate opinion, Liacos, joined by Justices Ruth I. Abrams and Francis P. O'Connor, emphasized in the majority opinion that the ruling does not interfere with a death penalty amendment to the state constitution approved by voters in the 1982 state elections. The amendment requires that no provision of the constitution "shall be construed as prohibiting the imposition of the punishment of death." However, the justices decided, the amendment does not prevent the court from considering the constitutionality of the "manners and means" by which the statute imposes the death penalty. After the amendment was adopted, legislators approved the statute, which restored the death penalty for first-degree murders committed with premeditation or extreme atrocity, on Dec. 15, 1982. King, a staunch supporter of capital punishment, signed the law one week later as one of his last official acts. Under the law, Liacos wrote, "The death penalty may be imposed, if at all, only after a trial by jury. Those who plead guilty in cases in which death would be a possible sentence after trial, thereby avoid the risk of being put to death." He added, "The inevitable consequence is that defendants are discouraged from asserting their right not to plead guilty and their right to demand a trial by jury." In leaving the way open for possible legislation on a new capital punishment law, the majority justices said, "We do not consider that our invalidation of this statute is equivalent to prohibiting the imposition of the punishment of death." In a dissenting opinion, Justices Joseph R. Nolan and Neil L. Lynch said the majority decision "contravenes the desires of the citizens of Massachusetts" who approved the 1982 death penalty amendment to the state constitution." "The people made it clear that the capital punishment statute must escape invalidation by any article of the Massachusetts Constitution," Nolan wrote. Justice Herbert P. Wilkins, in another dissent, joined with Nolan and Lynch in arguing that the court should not have ruled on the new capital punishment law until the case of a defendant who had been sentenced to death under the 1982 law reached the court on appeal. Abimael Colon-Cruz and Miguel Rosado, both 31, and Jose Colon, 22, are still awaiting trial in the murder of state trooper Hanna, 36, of Holliston. Hanna was shot to death after he stopped a car Feb. 12, 1982, at Auburn for a routine traffic check. Dist. Attys. Newman Flanagan of Boston, William C. O'Malley of Plymouth, Philip A. Rollins of Cape Cod, Anthony J. Ruberto of Pittsfield and Matthew J. Ryan, Jr. of Springfield joined in asking the court to uphold the death penalty statute as a deterrent to crime. William D. Delahunt, the Norfolk County district attorney, arguing that "there is a fundamental right to life," urged that the law be declared invalid. Liacos pointed out that the 1983 emergency law appeared to be a legislative reaction to the Supreme Court decision on Oct. 28, 1980, that ruled a 1979 death penalty law unconstitutionally cruel and unusual punishment. Massachusetts was without a death penalty until the emergency statute went into effect in 1983. Two executions last month in Florida brought to 25 the number of cases in which the death penalty has been carried out in the country since 1976 when the US Supreme Court lifted its ban on such punishment.