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Pa. Attorney General Kane seeks to reinstitute death penalty

| Wednesday, July 8, 2015, 8:09 p.m.

HARRISBURG — Pennsylvania's attorney general asked the state Supreme Court this week to nullify Gov. Tom Wolf's moratorium on executing death row inmates, describing the policy as blatantly unconstitutional and a threat to the justice system.

Attorney General Kathleen Kane filed the request Monday in the case of Hubert Lester Michael Jr., on death row for killing 16-year-old Trista Eng in York County nearly 22 years ago.

“Never before has a member of the executive branch of government sought to unilaterally negate a criminal penalty across an entire class of cases,” the state prosecutor's office wrote. “Never before has a member of the executive branch affirmatively interfered with the proper administration of the law on the grounds that the judicial branch of government has not functioned in a way that meets a personal standard of satisfaction.”

The current situation puts at risk the integrity of the constitution, and the court should act to preserve it, the attorney general's office wrote.

The filing was made without fanfare, and Kane had not previously criticized Wolf's stance in public. Wolf and Kane are Democrats.

A Wolf spokesman said Wednesday that the governor is aware of the filing and plans to respond.

“It essentially makes the same arguments as the arguments currently pending before the court,” said Wolf press secretary Jeff Sheridan.

Telephone messages left for Michael's lawyers were not immediately returned Wednesday evening.

Kane's office attacked Wolf's policy of issuing a series of reprieves in death row cases, at least until he can review the findings of an overdue study of capital punishment.

If the Supreme Court agrees, it could clear the way for the state's first execution since 1999, although the Department of Corrections has struggled to obtain the specific drugs required for executions under state law.

The attorney general's office said Wolf's series of reprieves — he has issued three so far — “falls well outside the realm of his constitutional authority.”

Eng disappeared July 20, 1993, as she was walking to a job at a fast food restaurant in Dillsburg. Her body was found concealed in some weeds, shot three times with a .44-caliber handgun. Michael was arrested in Utah a week later for jumping bail on a rape charge, and he later confessed to killing her.

Michael subsequently walked out of Lancaster County Prison in November 1993 under the assumed identity of a weekend cellmate serving a drunken-driving sentence. He was arrested about four months later in New Orleans, pleaded guilty to murder and kidnapping in 1994 and was sentenced to death in 1995.

“The governor is required by the constitution to respect the co-equal judiciary's determinations in criminal cases,” state prosecutors wrote this week. “His faux ‘reprieve' of Hubert Michael subverts that obligation.”

Shortly after he took office this year, Wolf announced the new policy, saying the state's system is “error-prone, expensive and anything but infallible.”

He argued there were data suggesting defendants might be more likely to be charged with capital murder and sentenced to death if they are poor or a racial minority and the victim is white.

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