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.