Daily Archives: April 22, 2005

Ross competency ruling analysis

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.

One nation, as far apart as can be

While CT celebrates becoming the first state to voluntarily legalize civil unions, TX is considering a bill that would "ban homsexuals and bisexuals from being foster parents".

"It is our responsibility to make sure that we protect our most vulnerable children and I don’t think we are doing that if we allow a foster parent that is homosexual or bisexual," said the author of the amendment added late Tuesday, Republican Rep. Robert Talton of Pasadena.

TXpublicdefender at Injustice Anyhwere has continuing coverage.

Seriously, how stupid is this? We tell gay people that they can’t have loving families because they "sodomize" each other and pay no regard to how they actually are as parents/people? It is my understanding that to become a foster parent, one must go through quite a scrutinizing process. So if two people clear those hurdles, are loving parents, aren’t arrested for child abuse and most importantly, provide an orphan a caring home, who the hell cares whether those people are of the same gender.

Would you rather leave those kids homeless? That’s what this legislation seems to say. Disgusting.

UPDATE: Ok, the more I read about this, the more infuriated I get – I probably shouldn’t blog anymore about this, but when have I known to follow the path of wisdom.

So, read this bit from the Dallas News:

The measure would ban people who declare themselves, or are later found to be, gay, lesbian or bisexual from serving as foster parents.
Supporters say children should not be raised in what they consider an immoral environment that could confuse a youth’s sexual identity. The sponsor, Rep. Robert Talton, R-Pasadena, called homosexuality "learned behavior."

There is SO MUCH wrong with that I just don’t know where to start. But let’s take the first sentence – "later found to be gay lesbian or bisexual". What is there going to be? An inquiry into every single foster home? Are they going to send decoys? So this measure basically affects those who are out. Think of the wasted resources in trying to find out which foster families are gay or lesbian or worse – bisexual! Ugh.


CPS says it does not keep track of how many children are in gay, lesbian or bisexual foster homes. Susan McKay, who worked for the agency for 27 years before retiring in 2002, estimated that 10 percent to 15 percent of Texas foster parents are gay. The Austin-based Lesbian/Gay Rights
Lobby of Texas estimates 1,100 to 3,000 foster children are living with gay parents.

Excellent. So they are going to take somewhere between 1100 and 3000 (think about that – THREE THOUSAND) kids out of these homes and put them…. where? Oh, and you do know how these kids end up in foster homes in the first place right? Yep. That’s right. This is such an unnecessary diversion from the real issue – the care of the children. Let’s stop letting our stupid prejudices get in the way and cut through this bullshit and focus on what’s important.