NEW YORK (AP) -- John Taylor waits alone on death row.
For 23 hours a day he is confined to a 7-foot-by-9-foot cell with a bed, toilet, sink and a stool. The blue cell door has a waist-high horizontal slot to pass a meal tray. He is led out in handcuffs for one hour of daily exercise and a shower three times a week.
Taylor, convicted of the execution-style murder of five employees of a Wendy's restaurant in Queens in 2000, may soon learn whether his sentence to die by lethal injection will be carried out.
His fate has been in limbo since the 2004 Court of Appeals landmark ruling that held a provision of New York's death penalty law was unconstitutional, finding that it tipped the scale unfairly against a defendant in sentencing deadlocked cases.
On Monday, New York's highest court is scheduled to hear Taylor's appeal. He is seeking to be resentenced to life without parole, arguing that he should not be executed under a statute that the court determined is flawed and unenforceable without legislative correction.
Queens District Attorney Richard A. Brown, who prosecuted Taylor, is fighting to uphold Taylor's death sentence, arguing that the court did not strike down the state's death penalty statute in its 2004 ruling but merely overturned the death sentence in the case of Stephen LaValle, convicted of killing a Long Island schoolteacher. Brown said that ruling had no bearing on Taylor.
Brown contends that the trial judge in Taylor's case, aware of the statute's possible shortcoming, compensated for the defect in his particular instructions to the jury.
Since the 2004 ruling, the other prisoners who were on death row were re-sentenced to lesser terms, meaning Taylor remains the sole prisoner in once-populated Unit for Condemned Persons at the Clinton Correctional Facility in Dannemora, near the Canadian border.
Taylor, 43, was convicted of killing five Wendy's employees during a robbery in May 2000. He and an accomplice marched seven workers single-file into a large refrigerator in the basement of the restaurant, bound their hands and taped their mouths and eyes. They forced them to kneel before shooting each of them in the head. Two survived.
His co-defendant, Craig Godineaux, pleaded guilty and was sentenced to life in prison without parole. Prosecutors did not seek the death penalty against Godineaux because of his mild retardation.
Taylor, who was captured on videotape at the scene, admitted to first-degree murder during his trial and asked the jury to move on to the penalty phase.
A provision in the 1995 New York Death Penalty Law required judges to instruct jurors that if they deadlocked, the court would sentence the defendant to a parole-eligible life term.
At Taylor's trial in 2002, his defense lawyers asked presiding Justice Steven Fisher to declare the New York death penalty law unconstitutional, arguing that the mandated instruction was coercive and might persuade a juror to vote for death out of fear that the defendant would one day be released on parole.
The argument eventually led to the statute's demise two years later in the court's 4-3 ruling in the LaValle case.
Kevin Doyle, the attorney for Taylor, said the execution sentence should be overturned.
"There is no question he is guilty of capital murder," Doyle said. "The only thing we are contesting is the death sentence."
In court papers, Doyle contends that Taylor cannot be executed without a court overturning the LaValle ruling.
"My prediction is that the Court of Appeals will follow precedent and will resentence him to spend the rest of his life in prison without a chance at parole," Doyle said. "The death penalty in New York is over."
There have been seven people sentenced to death in New York since the death penalty was reinstated in 1995. All but Taylor's has been overturned.
New constitutional issues, including proportionality, are raised when the condemned man "inhabits a death row of one," Doyle contends. "Even more freakish and unconstitutional would be a 'one shot' death penalty, reserved just for him," Doyle says.
David Kaczynski, the brother of the "Unabomber" Theodore "Ted" Kaczynski, is executive director of New Yorkers Against the Death Penalty. He believes the death sentence should be overturned.
"I hope this case is the last gasp of a failed experiment to bring back the death penalty in New York," said Kaczynski. His brother, who pleaded guilty to killing three and injuring 23 in a terror campaign against technology, was spared the death sentence and is serving life without parole in a Colorado prison. He said he was in quandary before turning his brother into authorities, knowing that his capture would save lives but may at the same time result in a death sentence for his brother.
The Republican-controlled state Senate and former Gov. George Pataki promised to craft legislation to address the court's objections to the statute's provisions. But after the state Assembly held hearings on whether the 1995 death penalty had been effective deterrent to violent crimes, Assembly members have opted not to amend the statute.
Gov. Eliot Spitzer supports reinstatement of the death penalty for cop killers and unspecified horrendous crimes such as terrorism.
State Sen. Dale Volker, a Republican who is a leading death penalty supporter, said the Senate has tried five times to return the death penalty to New York.
"Whatever happens to Taylor, I hope it will be at least returned for the killing of a police officer," he said.
Brown, who personally opposes the death penalty, said he committed himself to see the case through on behalf of the victims and their families.
"This is one of the most horrendous crimes than ever occurred in Queens County," he said.
1010 WINS Boroughs & 'Burbs: Queens
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