If you want to make that argument, fine, just be up front about it. I will note that it exalts the supposed rights of killers over the right of local elected officials to make non-racially biased decisions about the people to seek death against.

It’s like someone trying to prove employment discrimination by arguing what other employers are doing.

and

Funny how my credibility is negative, but no one can seem to rebut my points . . . .

Ok. Well, there’s an area of employment discrimination law — it’s called Title VII — where courts have held that even where an employer is not motivated by a discriminatory intent, it may not use a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.

See, ie., Griggs v. Duke Power Co., 401 U.S. 424 (1971).

The upshot of my point is that there is no logical way to distinguish between the ability to use this “evidence” in death cases but not all cases. “Death is different” doesn’t get it done because it’s no more acceptable to have racial discrimination in rape cases and if you allow such “evidence” in death cases, but not rape cases, the defendants in rape cases would be justified in saying “what about me?” You cannot use the Eighth Amendment for the same reason.

We all know that there can be no generalized inquiry into plea bargains and charging decisions–for enormously practical reasons. Allowing them for death cases is incongruous, and the incongruity is not overcome by the reflexive incantation of “death is different”.

The problem, of course, with this “evidence” is that it doesn’t even pass the logical relevance test. How are independent decisions by prosecutors X, Y and Z relevant to a case prosecuted by prosecutor W.

First, Judge Fuger quotes from Furman v. Georgia: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”

Then, Judge Fuger explains:
“That is the gravamen of the complaint. The petition is not a global challenge to the death penalty, instead, the petition alleges that there is an impermissible racial disparity and other impermissible factors that creep into the decisions to charge, to prosecute, to impose and to inflict this most ultimate of penalties. The petition clearly asserts that this is a violation of the Constitution of the State of Connecticut.”

In my view, SPO, there are many different constitutional provisions that may prohibit the implementation of the death penalty under circumstances alleged by the petitioners here. The “cruel and unusual” - and yes, “death is different” - analysis seems squarely at play here.

I went back and re-read your posts, but I’m not sure I understand your criticism of Judge Fuger’s decision, especially if your position is that the Motion to Dismiss should have been granted because the petitioners failed to state a legally cognizable equal protection claim. That wasn’t addressed (or seemingly raised by the Respondent) at all in the decision.

I am a lot smarter than you guys give me credit for.

This is not a slippery slope. This claim specifically applies to the sentence of death.

As for racial discrimination–I know it sounds nice to bleat on about how “race should never have anything to do with a death sentence” and how “we should do everything to ensure that it does not”. But the reality is that we have prosecutors, judges and juries making decisions in each death case–how are those decisions applicable to another death case, with different prosecutors, judges and jurors? Now maybe if there’s a smoking gun, as in the Miller-el case or maybe you can prove a single prosecutor has prosecuted in a racially biased manner (and that’s not, by the way, showing one Batson violation), then maybe he doesn’t get to be a prosecutor anymore or maybe the office is DQ’d. But we don’t use that to undermine all death prosecutions in the state.

And why would we stop here? If you have a harsh prosecutor who has a draconian “plead to the lead” policy, isn’t there “unfairness” because other criminals are getting better deals in other jurisdictions? What if one county does more to load up charges than others? Why is the death penalty so different?

Same goes for race. Let’s bring in race in every single trial. Why is death different? It certainly isn’t with respect to Equal Protection.

The claims of the defendants are bogus, and shame on the trial judge for not recognizing it.