Only once in 22 years on the court did Judge William Swain Lee have to decide to sentence someone to death. No doubt people still remember the circumstances.
Lee presided at the murder trial of Tom Capano in what could truly be called Delaware’s crime of the last century, the death and disappearance of Anne Marie Fahey, the governor’s sociable scheduler, at the hands of a dashing lawyer who had wealth and connections and moved in all the best circles, until a subterranean dark and feral streak got the best of him.
The case was the stuff of books and true-crime television, with a missing victim, a cooler-turned-coffin discovered at sea, brother against brother, a mistress caught in the middle and a profusion of courtroom histrionics. As it concluded in 1999, after the prosecutors, defense attorneys, witnesses, jurors and even Capano himself had their say, Lee alone was left to make the ultimate of determinations.
“I was in the Marine Corps. It is a lot tougher than it looks,” Lee says.
Capital punishment commonly is a matter for the courts, but this year it spilled beyond the judicial branch into the legislative and executive branches with the introduction of a bill proposing to repeal the state’s death penalty.
It forced a lot of public officials to wrestle with the rightness of a death sentence just as Lee did, shortly before he left the bench to follow what would be an unsatisfied dream for governor as a Republican candidate.
“One night I had a very restless sleep. When I finally made up my mind about what I was going to do, I got a good night’s sleep. It comes once you’re confident you’ve done the right thing,” Lee says.
“I was one of the judges who really believed the death penalty was a deterrent. In the Capano case, the compelling thing was he had tried to hire people inside of prison to kill his brother and his mistress, and I was genuinely fearful for Colm Connolly [the prosecutor], as long as Capano was alive.”
Lee’s remarks at Capano’s sentencing were among the most memorable in the annals of the court.
“He faces judgment because he is a ruthless murderer who feels compassion for no one and remorse only for the circumstances in which he finds himself. He is a malignant force from whom no one he deems disloyal or adversarial can be secure, even if he is incarcerated for the rest of his life,” Lee said.
“If the virtuous Tom Capano had ever existed, he no longer did.”
Capano’s death sentence was overturned after a ruling by the U.S. Supreme Court revisiting jury votes on capital punishment. He died in prison at the age of 61 in 2011.
The General Assembly found its consideration of the death penalty every bit as lacerating as Lee did. In a session that had the legislature also dealing with gay marriage, gun legislation and taxes, it was the repeal of the death penalty that seemed to be the most confounding of all.
“This is probably the most difficult bill that I’ve had to vote on since I was a senator,” said Bob Venables, a Democrat from Laurel, and he has been in the Senate since 1988.
“People of good conscience can disagree on this issue,” said Greg Lavelle, the Senate’s Republican minority whip from Brandywine Hundred.
The repeal bill was sponsored with bipartisan help by Karen Peterson, a Democratic senator from Stanton. She said the legislation has been in the works over the last couple of years in talks with other lawmakers, most notably Gary Simpson, the Senate’s Republican minority leader from Milford, and Melanie George Smith, a Democratic representative from Bear.
The most prominent opponent was Beau Biden, the Democratic attorney general. As Kathleen Jennings, the state’s top prosecutor, told the legislature, “We support the law as it is. We believe the law deserves to be intact in the state of Delaware for the most heinous of criminal acts.”
As if in evidence of how wrenching a decision this is, there was a scant, single-vote margin in the Senate to pass the repeal bill by 11-10. By press time, the House of Representatives had not decided whether to let the bill even come up for a vote but left it in the Judiciary Committee.
In the form approved by the Senate, the bill would eliminate the death penalty going forward, but would allow the executions to proceed for 17 inmates currently on death row. It drew the legislature into a cosmic interplay of morality, religion, justice and politics.
Peterson was moved to observe that the Senate debate took place during Holy Week, with its everlasting evocation of Pontius Pilate washing his hands of the most consequential public execution in the human experience.
From Peterson’s perspective, it made no sense for the state to say that taking a life is wrong and then take a life itself, implicating every Delawarean in it. “It is homicide, and it is wrong,” she said.
Delaware has not always had the death penalty on the books, but almost always. It was repealed in 1958, only to be reinstated in 1961 after the brutal double murder of Lorenzo and Mamie Whaley, a couple who lived in Laurel.
The debate over the death penalty was highly charged back then, too, as Bert Carvel, the Democratic governor at the time, tried to veto its return, but was overridden by the legislature. Carvel, who died in 2005, came to say that his stand on the death penalty was a prime reason he never won another election.
Repealed or not, what happened more than 50 years ago shows there may never be a last word, not in the case of a debate that resonates in the public’s emotions as deeply as this one. There is something to be said for that, too. “These are the kinds of questions a democracy ought to consider,” Judge Lee says.
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