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Thomas Capano, the once prominent Delaware lawyer, has lost his bid for a new trial on charges of murdering his mistress in 1996 now that a federal judge has rejected his argument that the jury should have had the option of convicting him on a lesser charge such as manslaughter or second-degree murder.

Thomas Capano, the once prominent Delaware lawyer, has lost his bid for a new trial on charges of murdering his mistress in 1996 now that a federal judge has rejected his argument that the jury should have had the option of convicting him on a lesser charge such as manslaughter or second-degree murder.  4

Thomas Capano, the once prominent Delaware lawyer, has lost his bid for a new trial on charges of murdering his mistress in 1996 now that a federal judge has rejected his argument that the jury should have had the option of convicting him on a lesser charge such as manslaughter or second-degree murder.

Capano’s lawyer, Joseph M. Bernstein, argued that if jurors believed Capano’s testimony — that Anne Marie Fahey was shot accidentally when Capano tried to wrest a gun away from Deborah MacIntyre, another mistress who Capano claimed was threatening to kill herself — they should have had multiple options. Instead, Bernstein said, the jury had only two choices — first-degree murder or acquittal.

But Chief U.S. District Judge Harvey Bartle III concluded that the Delaware state courts had properly rejected that argument because Capano’s account of Fahey’s death, even if believed, wouldn’t justify a conviction on any lesser charge.

“The record is entirely devoid of any evidence supporting a finding that Capano killed Fahey as a result of recklessness, extreme emotional disturbance, or criminal negligence,” Bartle wrote.

“While the jury was free to disbelieve the state’s evidence, it was not free to create a scenario with no factual support to convict on a lesser included charge. Simply put, the only option other than conviction of first-degree murder available to the jury on the record before it was to find that the state had not proven first-degree murder beyond a reasonable doubt, either because the state’s evidence in and of itself was insufficient or because the jury believed that Fahey had died at the hand of MacIntyre with no culpability on the part of Capano,” Bartle wrote in Capano v. Carroll.

Bartle, who sits in Philadelphia, was specially assigned to hear Capano’s federal habeas corpus petition after all of the judges on the District of Delaware federal bench recused themselves from the case.

Capano, once a wealthy and politically connected attorney and partner in the Wilmington office of Saul Ewing, was convicted of killing Fahey, 30, scheduling secretary to then-Gov. Tom Carper, and dumping her body in the Atlantic Ocean, allegedly because she was breaking off an affair with him. With no gun, no body and no eyewitness, prosecutors based their case against Capano on circumstantial evidence.

Capano testified that Fahey’s death was an accident that resulted from his attempt to wrest a gun away from MacIntyre.

But MacIntyre testified for the prosecution, admitting that she had lied at first to investigators and that she was not a witness to Fahey’s death. She also testified that she had purchased a gun for Capano six weeks before Fahey’s disappearance.

The jury found Capano guilty of first-degree murder and Delaware Superior Court Judge William Swain Lee later sentenced Capano to death upon recommendation of the jury.

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