Daily Archives: May 10, 2005

Ross decision – quick summary

A quick review of the majority opinion in State v. Ross, authored by C. J. Sullivan, reveals the following:

There are essentially three claims addressed by the Court:

  1. Jurisdiction – whether Groark had standing to appeal
  2. Groark’s claim that Ross’ waiver is involuntary must be construed as a claim that Ross was incompetent because his volitional capacity was impaired.
  3. The standard of review is "clearly erroneous" not "de novo".

Taking each one in order, the Court first decides that Groark does have standing to appeal (if it had decided otherwise, that is probably where they would have stopped). The Court finds that Groark is, in this limited setting, an aggrieved party and therefore has standing.

The Court then addresses the second issue

The state further contends that because the defendant was not subject to any external coercion in reaching his decision to waive further appeals, the voluntariness of his waiver, as that concept is typically understood in connection with claims that a waiver of a constitutional right was not voluntary, is not in issue. We agree with the state.

Citing Rees v. Peyton, 384 U.S. 312, the Court further explains,

the standard for competency in this context is whether the defendant ‘‘has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.’’

The Court makes the distinction between voluntariness and volitional capacity. Whether a waiver is voluntary depends on the surrounding circumstances and a showing of "governmental coercion is a necessary factual predicate for a finding of involuntariness".

There is no claim of governmental coercion in this case. Accordingly, special counsel’s claim that the defendant’s conduct was involuntary must be construed as a claim that the defendant was incompetent because his volitional capacity was  impaired. Because the question of whether the defendant’s mental illness impaired his volitional capacity, i.e., whether it substantially affected his ability to make a free choice among his options, is a question of competency, it is a question of fact, not of law.

Finally, the Court decides which standard to apply. It states that because the trial court’s competency finding was a finding of fact, the correct standard to apply is "clearly erroneous". Reviewing the testimony at the competency hearing, the Court accords deference to Judge Clifford’s findings and concludes,

Accordingly, we conclude that the trial court’s determination that the preponderance of the evidence established that the defendant’s mental disorder did not substantially affect his capacity to make and act on a rational decision so as to render him incompetent was supported by the evidence and was not clearly erroneous.

Since the standard they decided to apply wasn’t de novo, they didn’t have to review the transcripts and make their own independant determination. They simply said that based on a review of the transcripts and other documents, Judge Clifford’s ruling wasn’t obviously wrong. It isn’t a very high standard, but there it is.

More on the dissent to follow.


Ross decisions issued

The Connecticut Supreme Court has released the opinions for the Michael Ross death penalty case.  Here are the promised links.  Analysis to follow.


  • State v. Ross, SC17422, SC17423 (May 9, 2005)

  • State v. Ross, SC17422, SC17423 (May 9, 2005) (concurrence)

  • State v. Ross, SC17422, SC17423 (May 9, 2005) (concurrence and dissent)

(S)he said (s)he was 18! – further thoughts on statutory rape

I’ve been thinking about this bill a little more and talking to other people about it and it seems to me a good first step in the right direction. However, there is still one area of statutory rape that seems… well, unfair. Imagine the scenario where you are in a bar – all of 27 years – and meet a pretty young thing. She has to show her ID to get into the bar, has to show her ID to get a drink and you, in fact, see that ID and note that she is indeed 23. Then you proceed to work your charm on the lovely lady and end up having consensual sex.

Yeah. You know it. She’s 16.

You’re guilty of statutory rape.

You have no defenses.

Perhaps it should be a defense to a prosecution for this crime – that the "victim" represented him/herself to be of age and showed proof of it; proof that was used to obtain services that are available only to those who are of age.

Ofcourse if, during the course of the night, the lovely lady does reveal to you that she is underage, and you proceed to have sex with her anyway – then you’re shit out of luck.

Any thoughts?