Body Dump
Page 20
Eason’s only relationship to the other victims was that she, too, was a prostitute. She was, however, African American. If Francois had suddenly decided to target African Americans, why weren’t more of the victims black?
An offender’s M.O. can and does change over time as he discovers that some things can be done more effectively. The M.O. of a killer is only those actions which are necessary to commit the murder. However, using M.O. to classify or link crime scene behavior is rather unreliable as it does not take into account the many offense dynamics which can affect an offender’s change in behavior due to such influences as changing victim reaction from offense to offense.
The offender’s M.O. can change over time as a result of a number of factors, such as experience, which when committing crimes such as rape or murder, leads to refinements or changes in his conduct so as to facilitate the completion of the crime. These refinements in criminal actions can have a number of causes, for example, the result of being arrested or, as a result of victim response, causing the offender to change his way of dealing with the victim, including any future victims.
Note that Francois’s murder of Audrey Pugliese differed from the other victims: he stomped her viciously, but only after his arrest and incarceration on the misdemeanor assault charge. Eason’s disappearance, however, occurred before his arrest.
“The change in behavior could be attributed to factors, such as maintaining control over the victim by the use of a weapon or, for example, a rapist progressing to murder in order to avoid identification.”
In Pugliese’s murder, Francois was clearly punishing her for trying to escape from him. He knew he didn’t have to use his feet to kill her; his hands, used repeatedly in the past, would have been up to the task. Yet none of this can truly explain the enormity of Kendall Francois’s crimes. I’ve lived with them for the past two years it has taken to put this story together. My informed conclusion is this:
Kendall L. Francois is evil, pure evil, and he is where he belongs, behind bars, where he can no longer create tragedy. What do you think?
Fred Rosen can be reached at crimedoesntpay.com
Acknowledgments
This book could not have been written without the cooperation of three men who, between them, lived every minute of this case—Bill Siegrist, Jimmy Ayling and Tommy Martin. It was Jimmy who first clued me into what was really going on and provided entry into the law enforcement apparatus that was utilized in catching the killer.
Bill gave generously of his time to sit for interviews by the Hudson River. With painstaking honesty, he described every facet of the investigation, including what he perceived as his foibles and what I perceive as his humanity. It is the kind of unprecedented access every writer hopes for and rarely gets.
Tommy Martin not only told me, but showed me, how he and Kevin Rosa worked the crime scene. It’s a far cry from what you see on television, and that much more fascinating.
Jim DeFelice gave generously of his time and cigars when explaining to me the ins and outs of Poughkeepsie and Dutchess County.
Paul Dinas, the former editor-in-chief of Kensington Books, deserves credit for seeing the commercial possibility in this story and the fact that readers would want to know what really happened. Karen Haas, my former consulting editor, helped me make this a better book.
I hope that in some way I have managed to bring some humanity to the lives of the women who were so maligned in the press as nothing more than prostitutes and drug users. Their deaths will have an impact on their sons and daughters, their mothers and fathers, for the rest of their lives and, in the case of the children, into future generations. It is my hope for all of them that they move on.
While the type of revenge fantasies that were evident at the sentencing are normal for the victims’ families, what I have seen in the numerous murder cases I have investigated is that those who adjust best are those who actually forgive the murderer and move on. All revenge will do is corrode from the inside out.
There are worse things than a quick death by needle, including, I believe, confinement to a cell for the rest of your natural life. Every time Kendall Francois feels like killing someone and can’t, and turns those emotions inside out, the eight women will be getting their revenge.
An old Sicilian proverb says it best:
“Revenge is a dish best eaten cold.”
—Fred Rosen
April, 2002
Appendix
KENDALL FRANCOIS AS LEGAL PRECEDENT
The precedent that the New York State Court of Appeals set in the Kendall Francois case may very well be the defining piece of law when it comes to pleas in cases regarding serial killers.
What the New York State Court of Appeals said in the matter of law was that a capital defender representing a serial killer might not cop to a lesser plea before the district attorney has even had the opportunity to ask for death. The New York state courts’ opinions are frequently used as precedents in other states looking for guidance in this area of jurisprudence.
What the court of appeals said is best read in their own words. Here is the actual text of their decision.
2 No. 46
In the Matter of
Kendall Francois,
Appellant,
v.
Thomas J. Dolan, &c., et al., Respondents.
2000 NY Int. 64
May 18, 2000
Barry Fisher, for appellant.
Bridget Rahilly Steller, for respondent District Attorney.
LEVINE, J.:
The issue in this case is whether mandamus lies to compel County Court to entertain petititoner’s offer to plead guilty to all counts of the indictment charging him with capital murder, before the filing by the District Attorney of a notice of intent to seek the death penalty and prior to the expiration of the statutory period within which such notice may be filed. We agree with the Appellate Division that mandamus does not lie in this case because petitioner had no unqualified statutory right, let alone the required “clear legal right” for mandamus, to plead guilty under these circumstances.
On October 8, 1998, a Dutchess County Grand Jury indicted petitioner Kendall Francois on eight counts of murder in the first degree, as defined under New York’s 1995 death penalty legislation (see, Penal Law § 125.27[1][a][xi]; L 1995, ch 1), eight counts of murder in the second degree (Penal Law § 125.25[1]) and one count of attempted second degree assault (Penal Law §§ 110.00 and 120.05[1]). He was arraigned on the indictment and entered a plea of not guilty. Pursuant to CPL 250.40(2), Francois’ arraignment marked the beginning of a 120-day period within which the District Attorney was authorized to serve a notice of intent to seek the death penalty. In November, the District Attorney wrote to the Capital Defender Office inviting the submission of any mitigation information the defense might request the prosecutor to consider in determining whether to seek the death penalty.
On December 22, 1998, before the District Attorney either filed a notice of intent to seek the death penalty or announced his intention not to do so, this Court decided Matter of Hynes v Tomei (, 92 NY2d 613, cert denied __US__). There we considered a challenge, under United States v Jackson (390 US 570), to the constitutionality of the 1995 death penalty statute. As we explained in Hynes, the specific defect the Supreme Court identified in the Federal Kidnaping Act was that it “authorized the death penalty only on the recommendation of a jury, while a defendant convicted of the same offense on a guilty plea or by a Judge escaped the threat of capital punishment” (id., at 621 [citing United States v Jackson, supra, at 583] [emphasis supplied]), thus needlessly burdening an accused’s Fifth and Sixth Amendment rights.
We held in Matter of Hynes v Tomei that this State’s capital punishment statue had a Jackson infirmity. We described the statutory scheme under which, when the District Attorney elects to seek the death penalty, a jury trial is provided for the guilt-adjudication stage and then, upon conviction, there is a mandated second “sentencing proceeding before a jury
to determine whether the penalty imposed will be death or life imprisonment without parole (see, CPL 400.27)” (id., at 622). However, the statute permitted a guilty plea to first degree murder only “with both the permission of the court and the consent of the people when the agreed upon sentence is either life imprisonment without parole or a term of imprisonment for the Class A-I felony or murder in the first degree” (CPL 220.10[5][e]; 220.30[3][b][vii] [emphasis supplied]). Thus, we concluded in Matter of Hynes v Tomei that, just as under the Federal Kidnaping Act struck down in United States v Jackson, avoidance of the maximum penalty for conviction of the capital offense (here, murder in the first degree) could only be assured to defendants who plead guilty rather than assert innocence and go to trial before a jury.
Instead of invalidating the entire statute in Hynes, however, we held that the death penalty legislation could be saved from this particular challenge by severance of the offending guilty plea provisions contained in CPL 220.10(5) (e) and 220.30(3) (b)(vii). We, therefore, limited our ruling to declaring those specific sections unconstitutional and striking them from the statute. Because the District Attorney had already filed a notice of intent to seek the death penalty (see, id., 237 AD2d 52, 54), we also interpreted the statute as prohibiting a guilty plea to capital murder while such a death penalty notice was pending (see, id., 92 NY2d, at 629).
On December 23, the day following the decision in Matter of Hynes v Tomei, still before a death penalty notice had been filed by the District Attorney in this case, petitioner made an uncalendared appearance before County Court, Dutchess County, in which he offered to plead guilty to the entire indictment. The District Attorney opposed acceptance of the plea and, the following day, filed the death penalty notice. County Court reserved decision on the guilty plea offer and later rendered a decision refusing to accept the plea.
Petitioner then brought before the Appellate Division the instant CPLR article 78 proceeding, in the nature of mandamus, for an order directing County Court to “entertain” his plea of guilty to the entire indictment. The Appellate Division dismissed the petition, holding that mandamus did not lie here because petitioner “failed to demonstrate a legal right to the relief sought” (__AD2d__,__). We agree. The legislative scheme does not support the theory that a person indicted for capital murder has an unqualified right, by pleading guilty to the indictment, to thwart the statutory authority of a District Attorney to make a fully deliberative decision whether to seek the death penalty, within the 120-day period after arraignment prescribed by CPL2.
Petitioner’s case for mandamus, requiring the trial court to entertain his guilty plea to the entire indictment, rests on CPL 220.10(2) and 220.60(2), general plea of provisions of the Criminal Procedure Law. Petitioner argues that these sections, which were enacted before, and left in place by, the death penalty statute, in the absence of the stricken provisions, give all defendants, including those charged with capital murder, an absolute right to plead guilty to an entire indictment upon arraignment and at any time before verdict.
For several reasons we reject this argument and hold that until the completion of the statutorily provided deliberative process, either by the filing of a death penalty notice, announcement of an intention not to seek that sanction, or by the expiration of the statutory period to make that decision, a capital defendant does not have an unqualified right to plead guilty to the entire indictment. Thus, to the extent that there is a conflict between sections 220.10(2) and 220.60(2), on the one hand, and the provision giving the District Attorney the authority to decide whether to seek the death penalty and a period to deliberate on that decision (see, CPL 250.40), the latter provision prevails.
Of foremost importance, if as petitioner contends, he has an unqualified right to plead guilty to an entire capital crime indictment, two critical powers conferred on the District Attorney in the 1995 death penalty legislation could be preempted. First, the defendant could thereby prevent the prosecution from pursuing the death penalty even after a notice of intent to seek the death penalty was filed under CPL 250.40(1). This is because there is no provision for impaneling a jury for the required death penalty sentencing stage after a guilty plea to capital murder (see, CPL 400.27; Matter of Hynes v Tomei, 92 NY2d, at 629 n 7). Thus, the only legal sentence upon a guilty plea would be either life imprisonment without parole or a term of years in prison. In order to avoid this result, in Matter of Hynes v Tomei, we construed the statute, as a whole, not to permit a capital defendant to exercise an unqualified right to plead guilty to murder in the first degree while a death penalty notice was pending (see, Matter of Hynes v Tomei, supra, 92 NY2d, at 629).
Second, in entering a plea to capital murder, a defendant could preclude the District Attorney from even exercising the statutory right to consider, over time (weighing aggravating and mitigating factors), whether to seek the ultimate sanction in a capital murder case. This implication is presented here, and would be the end result of acceptance of petitioner’s position on this appeal. The statutory structure and the legislative history show that the role of the District Attorney, and attendant statutory rights and responsibilities, was the keystone of the 1995 bill. The prosecutor’s filing of a notice of intent to seek the death penalty is a sine qua non for the imposition of the ultimate sanction in a capital case (see, CPL 250.40[1] [“A sentence of death may not be imposed * * * unless * * * the people file * * * and serve * * * a notice of intent to seek the death penalty”]). That prosecutorial authority and the statutory time frame for its exercise are emphasized as a central feature of the bill in the Governor’s Program Bill Memorandum (Bill Jacket, L 1995, ch 1, at 14), as well as in the Assembly Codes Committee Memorandum (id., at 23). Conversely, when sections 220.10(2) and 210.60(2), relied upon here by petitioner, were originally enacted, the Legislature expressly evinced its intention to limit their application in capital cases under the death penalty statute of that time (see, CPL former 220.10[5] [e]; 220.60[1]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 220.10, at 11). Thus, petitioner’s proposed interpretation would substantially undermine the present statutory framework, and is not supported by the legislative history of those provisions.
Moreover, giving precedence to the subsequently enacted, specific provision of section 250.40 over the earlier enacted, more general provisions of CPL 220.10(2) and 220.60(2) is consistent with the canon of statutory interpretation most directly applicable here: “what is special or particular in the later of two statues supersedes as an exception whatever in the earlier statute is unlimited or general” (East End Trust Co. v Otten, 255 NY 283, 286 [Cardozo, CH. J.]; see, Gwynne v Board of Educ., 259 NY 191, 197).
Finally, we should not ignore the unintended and untoward effects of a contrary ruling. As this case illustrates, and County Court pointed out, it would inevitably result, in the most heinous or high profile cases, in an unseemly race to the courthouse between defense and prosecution to see whether a guilty plea or notice of intent to seek the death penalty will be filed first. The need for precipitous action to file a death penalty notice before the plea was offered would undeniably preclude the thorough, fully deliberative decision-making on whether to seek the death penalty that the Legislature contemplated, and one would hope a District Attorney would employ, in the exercise of that official’s profound responsibilities conferred under the present death penalty statute. For all of these reasons, we hold that the Appellate Division properly dismissed the petition here.
Accordingly, the judgment of the Appellate Division should be affirmed, without costs.
Judgment affirmed, without costs. Opinion by Judge Levine. Chief Judge Kaye and Judges Bellacosa, Smith, Ciparick, Wesley and Rosenblatt concur.
Decided May 18, 2000
Image Gallery
Kendall Francois, the Poughkeepsie Serial Killer, in his recent mug shot
Photo courtesy of the State of New York
Victim Wendy Myers, 30
Photo courtesy of the City of
Poughkeepsie Police Department
Victim Gina Barrone, 29
Photo courtesy of the City of Poughkeepsie Police Department
Victim Catherine Marsh, 31
Photo courtesy of the City of Poughkeepsie Police Department
Victim Kathleen Hurley, 47
Photo courtesy of the New York State Police
Victim Mary Giaccone, 31
Photo courtesy of the City of Poughkeepsie Police Department
Victim Sandra Jean French, 51
Photo courtesy of the City of Poughkeepsie Police Department
Victim Audrey Pugliese, 33
Photo courtesy of the City of Poughkeepsie Police Department
Victim Catina Newmaster, 25
Photo courtesy of the City of Poughkeepsie Police Department
Kendall L. Francois, 27, was charged with eight counts of first degree murder
Photo courtesy of the City of Poughkeepsie Police Department
Francois at 18
Francois graduated from Arlington High School in 1989
Arlington Middle School, where Francois worked from April 1996 to January 1997
The back door of the Francois family’s Victorian house
Photo courtesy of the New York State Police
Side door prior to the search for bodies on September 3, 1998
Photo courtesy of the New York State Police
New York State Police forensic investigators raked the Francois property for evidence
Photo courtesy of the New York State Police