Archive for April, 2005
MA seeks to reinstate death penalty
Apr 30th
UPDATE: Prof. Berman correctly points out that I have neglected to discuss the economic concerns surrounding the re-instatement of the death penalty in MA. Certainly, there are many studies [pdf] out there that analyze and discuss the cost of imposing the death penalty, which I won’t rehash here. Prof. Berman does make an interesting observation:
Consider also the fact that, according to statistics I found on the
web, alomst twice as many people are killed in Massachusetts by drunk drivers than by murderers, and the data
on rape and other violent crimes suggest that Romney’s bill may
distract from more pressing criminal justice issues in Massachusetts.
This is certainly a compelling economic argument against the death penalty. Here’s what stood out to me – In CT, in 2000, there were 98 murders, 678 forcible rapes, 3832 robberies and 6450 aggravated assaults. In CT, as of 2002, it cost the PD’s office an average of $380,000 per case for the 7 men on death row, totalling $2,659,921. By comparision, those sentenced to life after being charged with the death penalty cost an average of $202,365, totalling $2,630,745. Those who weren’t charged with the death penalty, but were sentenced to life after a trial cost an average of $79,777. Full report of the CT Commission on the Death Penalty here. The 2003-2004 cost of providing capital defense in CT was $1,959,523. That’s a lot of money that could be saved.
Original Post: Thanks to Injustice Anywhere, I just read this NYT article about MA seeking to reinstate the death penalty (well, it’s mostly the Governor). Gov. Romney calls it, rather unabashedly, as foolproof as humanly possible. Here are a few of his proposed features:
- It would require that there be "conclusive scientific evidence," like DNA or fingerprints, to link a defendant to a crime.
- It would allow a death penalty to be imposed only if a sentencing jury
finds there is "no doubt" about a defendant’s guilt, a standard that is
stricter than "beyond a reasonable doubt." - It would restrict capital punishment to murders involving terrorism, prolonged torture, multiple killings or murder of someone involved in the criminal justice system.
- Defendants who had previously been convicted of first-degree murder or
were serving life sentences without parole would also be eligible. - Another unprecedented provision would give the defendant the option of
having two juries – one for the trial and one for the sentencing. - It also includes a requirement that defendants get at least two and
possibly three lawyers, that scientific evidence be examined by a
review board, that every death sentence be reviewed by the state’s
highest court, and that a special panel be set up to handle complaints.
Romney calls it a model for the entire nation. Heh. RIght off the bat, I see good things and bad things about this proposed legislation.
The Good:
The requirement that there be atleast two lawyers for a capital defendant. Everyone who follows capital litigation knows that there is a terrible need to skilled and experienced lawyers and that one lawyer simply cannot adequately represent a capital defendant. By mandating that there be two, perhaps three, the bill is providing for effective representation.
Also, at first glance, the requirement that there be two juries is interesting and has potential to be a good provision. When there is one jury, it is difficult to plead not guilty – go through a trial, present (usually) horrific evidence and get convicted – and then turn around at sentencing and provide mitigating circumstances to that same jury. Perhaps the requirement that the sentencing jury be new and look at the aggravating and mitigating factors with untainted eyes might provide a better process.
Finally, the DNA evidence. Over the years, the stories of those who have been exonerated based on DNA evidence is growing. To see a bill that has DNA evidence built in to the process that triggers the death penalty is uplifting. I’m not sure what the "review board" is that is supposed to review scientific evidence, or who it will be composed of, so I’m not going to comment on that.
The Questionable:
The requirement that death be found "beyond all doubt" instead of beyond a reasonable doubt. If my memory serves me correctly, Illinois has attempted to introduce similar legislation. I’d love to see it pass, but somehow I don’t think it will.
The Bad:
Finally, we come to the problem with this bill. Point 4. above. Defendants who have previously been convicted of first-degree murder and are serving life without parole would be eligible. Huh? Perhaps Gov. Romney should be reminded of a little clause called the Ex-Post Facto clause [Article I, Section 9]. Why would he even consider putting that in? Doesn’t he have lawyers working on this with him? Why wouldn’t they tell him?
Anyway, it certainly is an interesting bill. Let’s see where this goes. Also, Prof. Berman at SL & P has a roundup of other death penalty news in the country.
RSS feeds
Apr 28th
Just wanted to say that everyone should be using bloglines to keep track of their favorite blogs. Thunderbird, from Mozilla, also has a great RSS aggregator built in – which is what I use at home. Give them both a try to keep up to date on the latest posts of your favo(u)rite bloggers.
They’re Barely Legal…
Apr 28th
… and they’re funny! Check out this blog written by two law students, Mike and Russ. They’ve got a great series of post entitled "people you meet in law school". They’re up to 11 already, with #11 being "Hypo Man". Heh, so true – that guy always annoyed me. Give them a read, you won’t be disappointed.
Ross ruling appealed
Apr 28th
You knew it was going to happen. You just didn’t know how soon. Well, today Thomas Groark filed an appeal directly with the Supreme Court. He also asked for a stay of the execution, which is currently just twelve days away.
In his filing Groark claims that Judge Clifford made several mistakes. He says the New London judge:
- "erred in concluding that Michael Ross decision to waive his right to seek post-conviction relief was voluntary."
- "erred in concluding that Michael Ross was not suffering from a mental disease."
Groark also claims the judge is mistaken because he sided with the two
experts that claim Ross is competent instead of the two that Groark
brought to court who said he was not.
In other related news, seven prosecutors have filed a complaint against Judge Chatigny for his handling of the Michael Ross case. The complaint will be reviewed by Chief Circuit Judge John M. Walker, who can either dismiss the complaint or order an investigation. So wait, are we for activist judges or against?
Written consent for vehicle searches… in Texas?
Apr 28th
Injustice Anywhere (by way of Grits for Breakfast) reports on a new bill in Texas that would require peace officers to get signed consent from motorists before inspecting their vehicles during a routine traffic stop. The bill states [bill text]:
A peace officer who stops a motor vehicle for any alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the peace officer:
(1) has probable cause or another legal basis for the search; or
(2) obtains on a form that complies with Section 411.0207, Government Code, the written consent of the operator of the vehicle.SECTION 2. Subchapter A, Chapter 411, Government Code, is amended by adding Section 411.0207 to read as follows:
Sec. 411.0207. GUIDELINES FOR FORMS INDICATING CONSENT TO VEHICLE SEARCH.
(a) The director by rule shall establish requirements for a form used to obtain the consent of the operator of a motor vehicle under Article 1.06, Code of Criminal Procedure.
(b) At a minimum, the rules must require the form to contain:(1) a statement that the operator of the motor vehicle fully understands that the operator may refuse to give the peace officer consent to search the motor vehicle;
(2) a statement that the operator of the motor vehicle is freely and voluntarily giving the peace officer consent to search the motor vehicle;
(3) the time and date of the stop giving rise to the search;
(4) a description of the motor vehicle to be searched; and
(5) the name of each peace officer conducting the stop or search.
I think the part requiring written consent in the absence of probable cause is great, because as Grits reports, jurisdictions that already require written consent have seen a 63% decline in motorists willing to waive their rights. At the very least, people will be more informed of their right to decline to consent.
Meet force with force: FL’s new self-defense statute – II
Apr 28th
Update: Jeff Spivack has provided a link to a great website that has an excellent analysis of this law. Here is an excerpt:
Another interesting facet of the law is that persons who appear to be validly relying on the law, are supposedly "immune" from criminal prosecution and arrest unless and until "probable cause" exists to believe that the use of force was not legal. How that provision will work out in reality is anyone’s guess. It will probably be an issue litigated in the courts for years to come. The final benefit, which is really an empty shell: It allegedly awards attorney fees, lost income, and all expenses of defending any civil action to any person sued because of their use of defensive force who is found to be "immune" in the civil case. As a practical matter, this provision will be useless. I’ll explain why later in this article.
As to the other areas of the bill, it’s hard to say how much value they’ll have because the Legislature didn’t really think them through. Let’s do a little analysis on that:
The presumption that the person breaking in the residence/vehicle is doing merely an "unlawful act" involving "force or violence" falls far short of the required legal standard of a "forcible felony" as a predicate to any use of deadly force. A forcible felony allows deadly force as a response where the defender "reasonably believes" the force was "necessary" to stop the forcible felony – an "unlawful act with force" can merely be a misdemeanor such as battery or trespass, and the Legislature really screwed up on choosing this language.
The alleged "immunity" against arrest is probably an illusion. Although the law says law enforcement "may use standard procedures for investigating the use of force", and shall not arrest unless they first determine that probable cause for the unlawful use of force exists – the problem is that there are no "standard procedures" for investigation, and more importantly, there is no requirement that a reasonable investigation of the lawful use of force "shall first be made before any determination of probable cause is valid". Furthermore, the phrase "may use" means law enforcement can still ignore standard procedures, and do only a bare bones job of investigation – which, unfortunately, many departments follow. The law also leaves in place other easier methods of arrest under Florida Statute 901.15, which only require probable cause of a lesser crime. Thus, the "immunity" section of the law will likely have no enforcement value before the courts, and get little respect from the police.
Original post: After my post on Florida’s new self-defense statute, I have received a number of extremely interesting and well thought out comments. These comments provide a different point of view, one from a Florida law enforcement officer, and worth a read. Commenter "Jeff Spivak" helpfully lists "non-forcible felonies" in Florida:
In Florida, non-forcible felonies include, but are certainly not limited to: Perjury; Bigamy; Fraud; Procuring person under age of 18 for prostitution; Deriving support from the proceeds of prostitution; Sale, manufacture, delivery or possession with intent of controlled substances or counterfeit controlled substances; Making or having instruments and material for counterfeiting driver’s licenses or identification cards; Dealing in stolen property; Forgery, Counterfeiting, and related crimes; Grand Theft (without the use or threat of violence). And many, many others. Note: the prostitution related crimes CAN be forcible under conditions when violence or threats of violence are used.
So I’m assuming all others are forcible. I agree that the example I used (purse-snatcher) is not really conducive to a discussion of the "prevent a forcible felony" prong of this new self-defense statute. But it does point out the inherent problem – subjectivity. For long, the determination of reasonable subjectivity has been the realm of the jury. This statute – and this is my biggest problem with the bill – takes that away and leaves it up to …. no one. Despite the thoughtful comments, I still don’t have an answer to the immunity problem. Who decides immunity – or rather, who grants it? If there is someone who makes that determination, how do they do it? Is there an arrest first? Clearly not – since the statute prohibits that. Then what? Is the police officer on the scene the one to make a determination of immunity? The statute doesn’t grant that authority – and I’d have serious constitutional problems with that as well.
But again, please read those comments.
Whew! Phone-sex constitutionally protected
Apr 27th
Now that AL&P has reported that phone-sex is constitutionally protected, we can all breathe a sigh of relief.
Hang on, my phone’s ringing.
Recent Crim Law decisions
Apr 27th
The Appellate Court released Smith v. Commissioner [pdf] and State v. Little [pdf] today. Both cases are brief, so here are brief summaries:
I. In Smith, the petitioner appealed from the denial of a habeas corpus petition, in which he raised 1) IAC and 2) [F]actual innocence (he raised factual innocence, but presented legal authority for actual innocence so the court treated it as such).
The facts in Smith were that he robbed an 80 year old woman, pushed her to the ground and ran off. He was seen by two witnesses, one man and one woman. The woman rushed to the victim’s aid and the man threw a bottle at the petitioner that hit him, but did not deter him. The man made positive IDs pretrial and in court and the woman could only narrow it down to two "mug-shots" pretrial and was 90% sure it was him in court.
HIs claim of IAC was that he repeatedly claimed he was "innocent" and that his trial attorney did nothing to investigate his assertion. The Court described trial counsel’s performance as it oft does, glowingly, stating:
Upon review of the record, it is clear that the petitioner’s trial counsel conducted an adequate pretrial investigation. She obtained a complete copy of the state’s file in the matter. She met with Diaz [female witness] to attempt ‘‘to develop any discrepancies between what the witnesses were saying in their statements given to the police versus . . . the descriptive appearance of [the petitioner].’’ She attempted to meet with Pender [male witness], but he refused to meet with members of the defense team. She also investigated and developed the petitioner’s alibi defense.
The conduct of the petitioner’s trial counsel displays that she was attentive to the petitioner’s statement that he was not guilty of committing the crime and that she conducted an adequate pretrial investigation.
The next bit – the analysis of AI – is interesting for those who wish to know more about habeas law. The standard for a claim of AI is defined by Miller v. Commissioner, 242 Conn. 745 (1). The petitioner, in advancing a claim of Actual Innocence,
must establish by clear and convincing evidence, taking into account both the evidence adduced at the original trial and the evidence adduced at the habeas trial, that the petitioner is actually innocent and that no reasonable fact finder would find the petitioner guilty of the crime.
So you have to take all the evidence from the original trial and from the habeas trial and look at it together from the perspective of a jury and then decide whether a "reasonable jury" would convict. Quite different from the IAC standard.
The Court didn’t find any evidence to overturn the Habeas Court’s ruling that the AI standard wasn’t met.
II. In State v. Little, the defendant was convicted of manslaughter in the first degree and carrying a pistol without a permit. The facts are unimportant, so if you want to know, please read the opinion.
The defendant raises two claims: 1) During the charge to the jury, the judge improperly marshaled the evidence against the defendant and in favor of the state and 2) Prosecutorial misconduct.
A claim of marshaling the evidence is not one that I have come across too often, so this is interesting to me. The appellate court has held that the trial court has the right and the duty to comment on the evidence adduced at trial. The purpose of this is to provide a summary, nothing more. To attain that, obviously, the court must achieve impartiality. It cannot be viewed as favoring one side of the case as opposed to the other. Applying it to the instant case, the Court held,
‘‘On review, we do not evaluate the court’s marshaling of the evidence in isolation. Rather, [t]o determine whether the court’s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.’’ (Internal quotation marks omitted.) State v. Thompson, 81 Conn. App. 264, 282, (2004).
The Court reviewed the evidence adduced at trial and found that the trial court’s charge did not favor the state. It noted that the court repeatedly told the jurors to rely on their own memory and impressions and to judge the credibility of witnesses for themselves.
In claiming prosecutorial misconduct, the defendant stated that the prosecutor appealed to the emotions of the jurors.
‘‘It is well settled that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . .
The remarks in question were:
‘‘You also have . . . three individuals disputing [the defendant’s] claim that it was [the victim] chasing him and not the other way around. All three of those individuals told you that it was [the defendant], the man who had the motive, the man [who] now had the means, the man who took advantage of the opportunity at this point to chase and track down essentially [the victim].’’
Shortly thereafter, near the end of his closing argument, the prosecutor urged the jury
‘‘to recall the fact that the state claims the defendant had a motive, a clear motive, to shoot and kill [the victim]; the fact that he purposely sought out and obtained a deadly weapon to accomplish that; [and] the fact that he chased, in effect, hunted down, [the victim] over a block and a half . . . .’’
The court held that the prosecutor’s remarks were not improper and upheld the conviction.
Ok, so the summary wasn’t brief. Sorry.
(1) Larry Miller’s case is fascinating. Read a little about it here.
Miami toughens up sex offender laws
Apr 27th
Ok, here’s the disclaimer, front and center: I’m probably going to say things in this post that most may not agree with, so if you’re not in the mood for a disagreement, don’t read.
Ok? Still here? You’ve been warned.
At PrawsBlawg (& Crimprof), I saw reports of a story that Miami is considering changing it’s sex offender laws (via zoning restrictions) that would basically drive all "sex offenders" out of the city. These restrictions are prompted by the slayings of two young girls.
New proposed laws in Florida include lifetime monitoring of some sex offenders by global satellite
positioning systems, mandatory 25-year prison terms for sex offenses
against children younger than 12, and automatic jailing of sex
offenders who violate probation until a judge can determine whether
they represent a threat.
I’ll address those proposed laws a little later. The Mayor’s measure
would more than double the buffer zone required between the homes of
registered sex offenders and schools, parks, school bus stops or any
”place where children regularly congregate."
I have some serious, serious reservations about this. It is one thing to impose lengthy sentences on "sex offenders" and then require them to register for life with their information available on a public website (which, unfortunately, the Supreme Court has held constitutional), but it is quite another to effectively bar them from a whole city. Not only does this proposed legislation raise equal protection concerns, it is exactly the kind of knee-jerk reaction that has effectively removed all notion of "correction" and "rehabilitation" from the criminal justice system.
Look, I know what you’re thinking: What the hell is wrong with this guy? I understand the importance of sex offender laws and the need to protect children. I am all for it. So, if sentences for certain sexual offenses need to be increased to keep "offenders" locked up longer and out of society longer – I’m all for it. But when we start getting to the point that "offenders" cannot live within a city then we really need to stop and think about what we’re doing.
Analogizing (and yes, you can analogize this situation to other crimes – because there is always a victim) this to say, robbery, why are we not passing ordinances, zoning laws and legislation that bars people convicted of two or more robberies from being within 1500 feet of a store? Experience in the criminal defense field will tell you that the most recidivist "criminals" are those with robberies, burglaries and assaults on their record. So let’s keep people convicted of assaults from within 1500 feet of any store where they can purchase a knife/gun/sharp instrument. In fact, let’s not even let them near kitchens!
See how absurd this is getting? If you want to effectively "ban" them from cities, just increase jail terms. That serves the same purpose.
The other problem is that not all sex offenders are convicted of Class A or Class B felonies. There are a large number of "sex offenders" who are convicted of offenses that involve nothing more than public indecency or, heck, don’t even involve children! Do we banish them too?
So we banish them. Then what? They go live in another city, or the countryside, or some small town. And that small town passes the same law and so they move elsewhere and so on and so on. What happens then? All the sex offenders in the country congregate in some remote vast open space in the middle of nowhere in, say, Montana? You think the residents of Montana will have nothing to say about that? That’s not a risk?
What about people that were convicted of a sexual offense 20 years ago and have not a blemish on their record since? What about those that are now working and hold jobs and have families? Do we banish the families too?
Again, I’m not belittling the horrific murders of the two young girls. But banishing all sex offenders is not the answer.
Let’s talk a little about this global positioning system tracking that’s been proposed. Do we need to know where "sex offenders" are every single minute of the rest of their lives? If we’re that concerned about where they are – leave them in jail!
All right. Here’s the deal: All I’m saying is that the "remedy" here is excessive and we really need to stop and think before we take such drastic measures. Is there a better alternative? One that is selective and targets only those that pose a real risk to the community and the safety of little children.
I told you my rant would piss you off.
Danbury immigrant mess getting serious
Apr 26th
When I first reported on Danbury’s mayor’s request to deputize state troopers as immigration agents to combat illegal immigrants in the city, I thought it was a joke. Particularly the part about banning volleyball because it is a popular sport among Ecuadoreans. I thought it would blow over.
Apparently not! After the request to deputize and the volleyball banning insanity, comes the first ever meeting of Connecticut Citizens for Immigration Control. There were about 170 people in the audience.
In a crowded American Legion hall on Triangle Street on Monday night, a fledgling group calling itself the Connecticut Citizens for Immigration Control recruited supporters and asked for their help in cracking down on illegal immigrants.
“No amnesty tomorrow. No more amnesty ever,” said Peter Gadiel, one of the group’s organizers, drawing a rousing ovation. Gadiel, 57, a Kent resident whose son, James, 23, died in the World Trade Center on Sept. 11, 2001, blamed gaps in U.S. immigration laws for the terrorist attacks. “If those laws had been properly enforced, our loved ones would have been alive today,” Gadiel said.
Ok this is starting to get scary.
The group is promoting a nationwide drive to get public officials to secure U.S. borders and enforce immigration laws.
Gadiel and a co-founder of the group, Paul Streitz, of Darien, said that most illegal immigrants don’t pay taxes and that they put a strain on social services. They drew further applause with calls to stop illegal immigrants from obtaining drivers’ licenses and cheaper in-state college tuition.
The problem with all of this is tying it to 9/11. Illegal aliens are, by definition, in violation of Federal Laws. Let’s leave it at that. When one ties it to an event as heart-wrenching as 9/11, then all bets seem to be off. People get carried away and lose sight of reason. We don’t need that. See also: (parts of) The Patriot Act.
There are, have been and will be a lot of illegal immigrants, who come in by hook or crook, and then live here for years – converting to legal status and contribute very effectively to the economy, the culture and society.
What troubles me even more about this “group” is the statement “No amnesty”. Wow. America is the country that most people seeking asylum come to, because of the “protections” it offers as the leader of the “free world”. When we start clamoring for no amnesty, we are turning our back on the rest of the world. Isolation is not fun.
Immigrant residents of Danbury are fighting back.
A state commission that monitors Latino issues and the American Civil Liberties Union said officials are heading down the wrong path with proposals that could violate the rights of both legal residents and illegal immigrants. We are saddened that the local government is taking a position to move against immigrants that live within the city,” said Werner Oyanadel, a legislative analyst with the Latino and Puerto Rican Affairs Commission, a group that advises Gov. M. Jodi Rell and the legislature.
The ACLU is getting worried, too:
CCLU legal director, Annette Lamoreaux, called the idea of regulating volleyball games popular with Ecuadoran immigrants “repugnant.”"Any time you have a law that targets one particular nationality or ethnic group, that is obviously anathema to the Bill of Rights,” she said. “They’re not going after stickball or golf. What’s the public safety concern?”
City officials said the games attract huge crowds and annoy neighbors. The city has received complaints about alcohol being served at the games and portable toilets arriving at the scene.
While the proposed ordinance would limit any activity that drew large crowds and many complaints, officials acknowledged it is aimed at the volleyball games.
Danbury Mayor Boughton has asked AG Blumenthal his opinion on deputizing police officers as immigration agents.
The ACLU’s Lamoreaux said deputizing state police as immigration officials would “undermine law enforcement” because many immigrants – from battered wives to witnesses of crime – would be afraid to call the police.
Officials at the Latino and Puerto Rican Affairs Commission said they are concerned officers would end up apprehending legal immigrants as well as illegal ones.”Unless they place a tremendous amount of funding into training officers to learn about complicated immigration law, there is a potential to affect many legal immigrants,” said the commission’s Oyanadel.
Stay tuned – Blumenthal should issue his opinion this week.
Immigrants driver’s license (limited) bill
Apr 25th
The Senate recently proposed (Sub) S.B. 189 [bill text] entitled "AN ACT CONCERNING MOTOR VEHICLE LICENSES FOR
CERTAIN RESIDENTS WHO ARE NOT CITIZENS OF THE UNITED STATES AND
RESIDENCY REQUIREMENTS FOR COMMERCIAL DRIVERS’ LICENSES." Really. This bill called for restricting the validity of the driver’s license of someone who is not a citizen and is in the country on a visa of limited time-period, until the expiration of that visa.
Meaning, when your visa expires, your driver’s license expires. If you renew your visa, then you have to renew your driver’s license.
It just seems like an unnecessary measure. Undoubtedly it would increase the volume of paperwork at a DMV office and perhaps even lead to disclosure of information that the DMV probably has no right to know. Fortunately, the bill failed to make it out of committee.
Proponents say the bill is required to "combat terrorism". Yeah, my buddy who paid $40,000 over three years to get a graduate engineering degree and is working for a corporation now is a "terrorist threat". I recognize that such a threat might be realized some day – but the bill, the way it is, is too broad and could lead to potential discrimination against immigrants.
Maybe Danbury should adopt it as an ordinance. They’re already banning volleyball.
QOTD
Apr 25th
While surfing Project Gutenberg [you really should know this website - it is a great resource for thousands of books in the public domain] today, I came across Joseph Devlin’s "How to Speak and Write Correctly" [e-text], and stumbled upon this quote:
Consider the contrast between the well-bred, polite man who
knows how to choose and use his words correctly and the underbred,
vulgar boor, whose language grates upon the ear and jars the
sensitiveness of the finer feelings. The blunders of the latter,
his infringement of all the canons of grammar, his absurdities and
monstrosities of language, make his very presence a pain, and one
is glad to escape from his company.
Well said! I just thought I’d share it.
Prosecutor pearls of wisdom
Apr 25th
I thought of many titles for this post: "What the F%@#?", "Oy Dios Mio!", "Are you kidding me?", but what defines this statement overheard by PD Law Clerk, is that it is just completely mind-boggling.
"I’m glad I don’t have your job. Your clients sometimes go to jail even when they haven’t done anything wrong."
Yeah, because sometimes, when they haven’t done anything wrong, they still decide to just walk up to a jail and ask to be admitted. They impose sentences on themselves just for the heck of it.
I’m still shaking my head.
Ross competency ruling analysis
Apr 22nd
The full text of the ruling is available here [pdf]. What follows is a summary of that opinion – bear with me, it’s long.
The Court starts off with a narration of the procedural posture of the case and then moves on to the analysis. First, the Court examines the burden of proof and concludes that no presumption of competency will apply.
The majority of the cases on the issue of the competency of a defendant to waive further appeals in a capital case seem to apply a presumption of competency by holding that a putative “next friend†has the burden of proving incompetency. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). Furthermore, a presumption of competency is recognized in the context of competency to stand trial. See, e.g., State v. Ouellette, 271 Conn. 740, 744 n.7, 859 A. 2d 907 (2004); State v. Wolff, 237 Conn. 633, 661, 678 A.2d 1369 (1996).
Nevertheless, the present “airing†of the competency issue was initiated not by a putative “next friend,†but by Ross himself through counsel. Accordingly, as the court indicated at the commencement of this hearing on April 7, 2005, no presumption of competency will apply in this matter.
The sole issue is whether Ross is, in fact, competent to make the decision to forgo further appeals. The Court applies the Rees v. Peyton standard in determining this competency. Therefore the threshold questions presented, as per the standard, are:
1) Is Michael Ross suffering from a mental disease, defect or disorder?
2) If Michael Ross is suffering from a mental disease, defect or disorder, does that disease, defect or disorder substantially affect his understanding of his legal position and the options available to him?
3) If Michael Ross is suffering from a mental disease, defect or disorder which does not substantially affect his understanding of his legal position and the options available to him, does that disease, defect or disorder, nevertheless, substantially affect Michael Ross’ ability to make a rational choice among his options?
The Court explains that Rees has been interpreted to mean "does the defendant have the capacity to understand the proceedings and does he, in fact, understand the proceedings".
The question is not whether a mental illness substantially affects a decision, but whether it substantially affects the prisoner’s capacity to appreciate his options and make a rational choice among them.
The Court then discusses the psychiatric testimony. It states that all four psychiatrists agree on the disorders that Ross is suffering from; the difference is how that affects his decision making ability. It is agreed that Ross suffers from the following disorders:
1) Sexual sadism: This is an Axis I disorder according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which is a consensus guide of mental disorders for psychiatrists nationwide. The defendant has been treated with Depo Lupron for this condition, and all the doctors appear to agree that it is presently in remission and is not in and of itself affecting his competency or the voluntariness of his decision.
2) Depression or mood disorder, not otherwise specified (NOS): This is also an Axis I disorder according to the DSM-IV. All the doctors seem to agree that this is in full or partial remission due to the defendant’s medication regimen.
3) Personality disorder, NOS, with narcissistic, borderline and antisocial traits or a full blown narcissistic personality disorder with borderline and antisocial traits: This is an Axis II disorder according to the DSM-IV. According to the experts’ testimony, opinions can differ as to whether one has enough of the traits listed in a disorder in the DSM-IV to qualify as an actual disorder. For example, Norko opined that Ross only had some narcissistic traits as part of a general personality disorder, while Gentile concluded that Ross had enough of those traits to qualify for a full blown narcissistic personality disorder diagnosis. There is no substantial difference.
4) Anxiety Disorder, NOS: Norko in his December, 2004 evaluation suggested that Ross may have been suffering from an anxiety disorder because it was the subject of clinical intervention when he was transferred to Osborn Correctional Institution in October, 2004. However, he also concluded that the anxiety symptoms had largely resolved and were in control with therapy and anti-anxiety medication. In February and March of 2005, Ross has been in sufficiently good spirits that his anti-anxiety medication was discontinued.
The Court then discusses the letters written by Ross to his friends and supporters, distrubuted as "Walking with Michael". Then the Court does something very interesting – it almost seems to dismiss the credibility of three "lay" witnesses: Dan Ross, Martha Elliot and Susan P.
Dan Ross, Martha Elliot and Susan P. all disagree with Ross’ stated motivations. Of course, all of these lay witnesses are opposed to the death penalty in general, are close friends or family of Ross, and do not personally support his decision to die. They do not present as unbiased witnesses to this court.
The Court then recites Dr. Norko’s "conclusions" about Ross’ possible motivations for forgoing his appeals, which the Court seems to adopt:
The primary motivations for forgoing any appeals and accepting the death penalty are 1) that it is morally the right thing to do, and 2) a desire to save the families of the victims the pain of going through another penalty hearing.
The secondary reasons, which Ross calls the “fringe benefits†of his decision, are 1) that he would avoid his own pain from hearing the evidence at another penalty hearing, 2) that he would end his confinement and not grow old in prison, and 3) accepting the inevitability of receiving the death penalty.
All of these factors come together in his decision and this multifaceted aspect of his decision demonstrates his ability to think rationally. He has weighed the pros and cons for years. He has questioned his decision, but has found no reasons to reverse it.
Importantly, the Court "does not find that he has absolutely no empathy for others as suggested by Grassian and Goldsmith."
Moving on to SHU or "Death Row Syndrome", the Court says that it "never materialized in this case". I wonder what Judge Clifford was looking at. According to Dr. Gentile, it is the inmates in segregation who appear "dead" that are the cause for most concern. Because Ross had the opportunity to go to the library and play with a "Game Boy", it didn’t affect him as much. That is nice to know that Ross has access to a game boy, but to me, it still doesn’t address the issue of the general and overall impact of constant solitary confinement on an individual. The Court concludes about SHU,
If anyone suffers from such an illness, it is not someone with the coping skills of Ross, who has utilized the strengths of his intellect to keep active and in touch with the outside world. Ross may not want to grow old in prison, but that is because of his quality of life due to the fact of confinement, not based on the conditions of confinement. This court finds that the conditions of confinement have not coerced or constricted Ross’ ability to think and make rational, logical, voluntary and volitional decisions.
The Court then concludes that it finds the testimony of Dr. Norko and Dr. Gentile more credible than that of Dr. Grassian and Dr. Goldsmith, basically saying that Dr. Norko has had the most contact with Ross and his opinion, after two evaluations, hasn’t changed and is most reliable. He writes off Ross’ depression and his wavering attitude toward wanting to die – as evidenced by statements made to others – as the same depression facing someone making a tough decision.
The rest is the conclusion – which you know well enough.
EXTRA EXTRA! Ross Competent
Apr 22nd
In unsurprising news, Judge Clifford has ruled that Michael Ross is competent and can forgo his appeals/habeas proceedings if he so chooses. I don’t expect this to be the end, but time is running out.
You can read the ruling here [pdf]. I will post an analysis of the ruling shortly.
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