Capano's U.S. appeal detailed

DOVER, Del. - Thomas Capano's lawyer argued in a federal appeal yesterday that a judge had violated the convicted killer's constitutional right to a fair trial by refusing to let the jury consider charges other than murder and by allowing hearsay testimony.

In a 71-page brief supporting Capano's habeas corpus petition, attorney Joseph Bernstein said the Delaware Supreme Court had erred in upholding the judge's decision to give the 1998 jury only two options: acquittal or conviction for first-degree murder.

Under a 1980 U.S. Supreme Court ruling, a defendant in a capital murder case is entitled to jury instructions that include lesser offenses if any evidence supports those offenses, Bernstein told the Associated Press.

Capano, now 56, acknowledged in his trial that he had dumped the body of Anne Marie Fahey, who was Gov. Tom Carper's scheduling secretary, into the Atlantic Ocean, but said her death had been an accident.

"If you're on a jury and you hear that, and you only have two options, what are you going to do?" Bernstein said. "Even if you don't think it was intentional murder, you're not going to let him go."

Capano, once a wealthy and politically connected lawyer, was convicted of shooting Fahey, 30, in 1996, allegedly because she was breaking off an affair with him.

Bernstein also argued in the federal appeal that hearsay testimony by Fahey's friends and psychotherapists should have been excluded from the trial.

In 2001, the state Supreme Court upheld Capano's conviction, his death sentence, and Judge William Swain Lee's decision to reject lesser offenses such as manslaughter or criminally negligent homicide.

While finding that Capano's trial included "obvious hearsay," the Supreme Court said Lee had admitted it with careful limiting instructions to the jury.

Certain inadmissible hearsay testimony did not amount to reversible error, the court added.

"What we're saying is that, under state law, the Delaware Supreme Court was wrong," Bernstein said.

He said the overturning of Capano's death sentence last year and subsequent sentencing to life in prison without parole did not affect his federal appeal.

"When the jury was originally instructed, it was a capital case," he said.

Loren Meyers, a criminal appeals attorney with the state Department of Justice, did not immediately return a telephone call seeking comment on Bernstein's filing. The state has until April 16 to file an answer.