The first day of the ‘racial and geographic disparity in the death penalty‘ trial ended pretty abruptly today, after the testimony of just the Chief State’s Attorney Kevin Kane. After being peppered with questions about his time as the supervisor of the New London State’s Attorney’s Office and his decisions to seek the death penalty in some cases and not in others, both sides apparently agreed to forgo questioning of all the other 13 chief prosecutors and some former ones in exchange for a stipulation.

While I’m not particularly clear on whether I’m in agreement over forgoing the questioning of the prosecutors and subjecting their decision making to scrutiny, the stipulation gained is a pretty damning one:

That from 1973 until today no written or oral guidelines or policies have been used by states attorneys or chief states attorneys to make decisions on an initial charge, whether to seek the death penalty or whether to reduce a charge.

There is no oversight by chief states attorney over decisions make by states attorneys on whether to seek the death penalty.

Each states attorney makes decisions on charging capital felony and seeking death based on criteria that is appropriate in their case.

Essentially, each judicial district is an island unto itself and each chief prosecutor makes the decision to seek the death penalty based on his or her own view of the aggravating and mitigating factors and his own personal opinion as to the seriousness of the case. While Attorney Kane, as I predicted yesterday, maintained that his decisions were based on the statute itself and factors contained therein, the bottom line remains inescapably that the decision to seek the death penalty is entirely arbitrary.

One doesn’t need look further than the fact that there is no co-ordination between different judicial districts, no database maintained of the cases death is sought in and those in which it isn’t and most tellingly, no guidelines whatsoever to inform prosecutors on just how to make the decision to seek death. These people are winging it out there, relying on nothing more than their personal reading of the statute and meter to gauge the icky feeling in their stomach.

As I’ve said before, this issue of racial and geographic disparity isn’t a new one: in fact, in 2003, a legislative committee issued a report [PDF] (which was entered into evidence today), which recommended that all state agencies involved in the capital felony process record and maintain data so that it could be analyzed by the legislature to determine if indeed there was such a systemic bias. Relevant recommendations are relevant:

A committee of State’s Attorneys should be established by statute to review any preliminary decision by a local State’s Attorney to seek the death penalty in a particular case. The method used in federal cases should serve as a model for this statute, including a procedure for defense counsel to provide input as to why the death penalty should not be sought.

and

To (1) ensure that the death penalty is being administered in a rational, nonarbitrary, and even-handed manner, (2) provide a check on broad prosecutorial discretion, and (3) prevent discrimination from playing a role in the capital decision-making process, Connecticut should reinstate proportionality review of any death sentence to ensure that it is not excessive or disproportionate to the sentence imposed in similar cases. To prevent delays that have occurred previously in proportionality review, an efficient method for proportionality review, to take place contemporaneously, should be specified by statute, including a process for reviewing similar cases by means of summaries and not plenary reviews of the record.

Of course, as far as I know, neither the legislature nor the Chief State’s Attorney’s Office implemented any of these recommendations. The latter is only just in the process “of setting up a case management system”.

The focus now shifts to the battle of the experts, slated to start next Tuesday. Being cynical like I am, I hardly expect the trial court judge to find that the death penalty is arbitrary; that is something the judge will leave for our supreme court to determine. But anyone who’s paying attention to this and who has taken a gander at the studies should have a gnawing doubt about the way we implement this most final of punishments in our state.