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WPCNR White Plains Law Journal. Analysis & Comment by S. Richard Blassberg, WPCNR Legal Affairs Correspondent. May 27, 2003: Friday morning May 23rd at approximately 11:40 A.M., the foreperson announced the Jury’s findings and actions. Having found Dennis Alvarez-Hernandez guilty of six counts of First Degree Murder some two weeks earlier in the Guilt Phase, the panel of four men and eight women were then compelled to determine the appropriate punishment in the sentencing phase under the 1995 Capital Punishment Statute. There were three possible outcomes:
WPCNR LEGAL AFFAIRS CORRESPONDENT
S. RICHARD BLASSBERG
Photo by WPCNR News
1. The Jury after considering twenty-four court-approved “Mitigating Factors,” and then weighing the mitigating evidence against the “Aggravating Factors” could unanimously decide to impose Death by Lethal Injection.
2. The Jury having so weighed the mitigating versus the aggravating factors could unanimously choose Life Without Possibility of Parole.
3. Or, in the event that all twelve jurors were not able to reach a unanimous sentencing decision, they could so declare, and thus turn over the sentencing decision to the Presiding Judge whose options would not include either of the above, but merely successive life sentences.
Judge Kenneth Lange had already instructed the jury that in the event they did not return a unanimous sentencing decision, he would impose a sentence of 115 years.
The Tense Courtroom Scene
Friday morning, the gallery was packed to capacity with family of both the victims and the convicted defendant as well as reporters, interested citizens, the Capital Defender, Kevin Doyle, and several of his staff, and, of course, many Assistant D.A.’s, Yonkers Police Detectives, and District Attorney Jeanine Pirro.
Mrs. Pirro sat between Yonkers police detectives Lorenzo and Craft who had led the original investigation, and who gave important testimony in the first phase of the trial. This reporter was pleased that she chose to sit between them because weeks earlier, following their court appearance, I had shared with them my belief that the D.A. had probably squandered police efforts by rejecting Alvarez-Hernandez’ plea offer.
The Significance of The Plea Offer
The Defendant had long ago offered to plead Guilty to Murder One, in exchange for a sentence of Life in Prison Without Possibility of Parole, additionally waiving all rights to appeal. Mrs. Pirro, by turning a “deaf ear” to that plea offer, instead demanding the Death Penalty, in effect set up the possibility that a jury could “deadlock” and thus compel the Presiding Judge to sentence to life, without the ability to impose the parole restriction. I had remarked to the two detectives jointly that such an outcome was not unlikely.
How the Jury Found
The courtroom was dead silent as the foreperson, Juror Number One, rose to her feet. Responding to Judge Lange’s question, she acknowledged that the jury had considered and weighed the Mitigating Factors and Aggravating Elements and had voted and acted upon their beliefs. The Judge then proceeded to go down the list of twenty-four approved Mitigating Factors and Juror Number One revealed how the Jury had voted on each one.
It quickly became apparent as Mitigator after Mitigator, 17 out of 24 in all, had been accepted by all twelve Jurors, and several others by a majority, that this Jury was not likely to call for a Death Sentence.
In fact, after delivering the Jury’s Action on all twenty-four factors, the Foreperson, to the amazement of many, announced that they had, on their own initiative, added a 25th Mitigating Factor, which took into account the fact that the principal victim, Patricia Torres, at 28, was significantly older than the Defendant, who was 22 at the time. Eleven of the twelve had approved this voluntary additional Mitigating Factor.
Road Map of Jury’s Thinking
The list of Mitigating Factors, together with the Jury’s responses to them, appeared to this reporter to be a veritable road map of their collective thinking about the man they were being asked by the D.A. to put to death.
Before Lange had even gotten half-way down the list, Prosecutor Patricia Murphy had thrown her hands behind her chair and clasped them in utter defeat and resignation. She knew the prosecution had failed miserably.
Sentencing
Following the review of the list of Mitigating Factors, Judge Lange proceeded to ask the Foreperson what sentence the Jury had arrived at, if any, for each of the Six Counts of First Degree Murder of which they had found Dennis Alvarez-Hernandez guilty just two weeks earlier. Although he had been found Guilty of each of fourteen counts of the indictment, only the convictions for six counts of Murder One were eligible for sentence of Death by Lethal Injection.
As Lange slowly went down the Six First Degree Murder Convictions, each was met with the same response, “Not Unanimous.” The Prosecution’s worst nightmare had materialized. Not only had the Jury refused to sentence Alvarez-Hernandez to death, but it also failed to sentence him to Life Without Possibility of Parole.
By deadlocking, (and this reporter believes it may actually have been 11 to 1, the majority against Lethal Injection), the jury insured only the lightest, least desirable sentence from the D.A.’s standpoint, could be imposed by the Judge.
The District Attorney’s strategy had clearly failed and she had suffered the most crushing defeat of her prosecutorial career.
Motion to Send the Jurors Back to Work.
Mrs. Pirro was not willing to respect or accept the actions of the Jury. Following the foreperson’s announcements, she dispatched her Chief Assistant, Richard Weill, to approach Judge Lange with a motion to send the jurors back into Deliberation.
Judge Lange, visibly annoyed by this irregular and highly improper motion, offered the stern admonishment, “The law allows them to disagree,” and dismissed the motion.
Mrs. Pirro’s action was wrong, very wrong, because it was disrespectful to the court as well as to the Jury. She, once again, simply could not contain herself. Her actions clearly demonstrated her disregard for the written law. As usual, it must be “her way or the highway.”
Analysis
Under any other District Attorney than Mrs. Pirro, Dennis Alvarez-Hernandez, killer of Patricia Torres, and two of her young children, would have begun serving a Life Sentence Without Possibility of Parole more than two years ago, as per his plea offer. To understand why Mrs. Pirro chose instead to subject the family of the victims as well as the defendant’s family to the anguish, pain and torture, not to mention the extraordinary expense of human resources and taxpayers’ money by the County of Westchester and the City of Yonkers, one must realize, like most everything she does, this capital punishment trial was, in this reporter’s opinion, all about her career, her position in the public eye, and “all about herself.”
Specifically, analysis of her decision to press for the Death Penalty, can be best understood in terms of four events which occurred in relatively close succession in the year 2000.
1. On June 20, 2000, Al Pirro, her spouse, is convicted in Federal District Court in White Plains, on all counts, of a massive ten-year tax fraud, involving joint returns.
2. On September 3, 2000, Dennis Alvarez-Hernandez kills his girlfriend, Patricia Torres, and two of her young children, Ashly 4, and William, 7.
3. In October 2000, Mrs. Pirro releases trial balloons that she will seek reelection to a third term.
4. Shortly thereafter, she announces her intention to seek the Death Penalty for Alvarez-Hernandez, in an apparent effort at shoring up Conservative support for her upcoming reelection.
Media Stranglehold.
Quite simply, Jenine Pirro’s calling for the Death Penalty was just another instance of her survival tactic, “Deflect and Distract.” Over the past nine years, she has used the method many times with great success. No wonder. She has almost total control over press and media in Westchester County, and nationally as well. (It is because Mrs. Pirro continues to be the “darling,” of the media that this series of reports was commissioned.)
Conclusion.
Dennis Alvarez-Hernandez committed a dreadful, murderous act on September 3, 2000, taking the lives of his girlfriend and two of her young children, while severely intoxicated with alcohol.
His plea offer to accept life in prison without possibility of parole, and to waive all possible appeals, should have been accepted by District Attorney Jeanine Pirro. Surely to do so would have been in the best interests of the people of Westchester County whom she is sworn to protect. It would also have been in the best interests of the families most closely touched by the tragic events.
Not to Be.
Mrs. Pirro chose to pursue the Death Penalty, disregarding the cost in human anguish and pain, not to mention the incalculable cost in human and financial resources. She knew all along that by taking the path she chose, for very transparent political reasons, she would set in motion years of hardship and expense no matter what the outcome of the trial might be. Now that she has done what she has done everyone has come away as losers for the following reasons:
1. The family of the victims as well as the family of the defendant have been put through a 2-1/2 year emotional wringer.
2. The People of Westchester have spent, and will likely continue to spend many millions of dollars and huge amounts of human resources for years to come, in the event that Alvarez-Hernandez exercises his rights to appeal..
3. The Law Enforcement Community specifically, the Yonkers Police Department, has seen a lessening of the consequences to the Defendant as compared with what he was willing to accept in his plea offer.
4. Finally, Mrs. Pirro comes away a huge loser, no matter how she may struggle to “spin the facts.” Her selfish, politically-motivated choice coupled with her inappropriate and disrespectful actions with regard to the law have not gone unnoticed by the legal community nor by the People of Westchester.
