Category Archives: cheshire

In which I make some uninvited retorts to specious arguments against abolition

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With the Connecticut Senate having already voted to abolish the death penalty last week, and in light of the looming vote in the House tomorrow and given the extensive debate this topic has been subject to for decades, I figured that we finally had reached a point where we were having honest, intellectual and moral arguments for or against this propriety of maintaining this punishment.

I was wrong. Linked there is a post by “Don Pesci” (whether that is his real name is unknown to me and irrelevant as well), who seems to be a real conservative and proponent of the death penalty. That someone is both of those things doesn’t bother me; rather what bothers me is someone who is both of those things (or anything, really) who then uses false arguments to state his or her support for the penalty. I did leave a brief comment on his blog, but upon further reflection, I decided that it merits a somewhat longer blog post. These are counter-arguments that have been stated plainly before, but are ultimately worth repeating, especially given the importance of tomorrow’s vote. I will attempt – as far as it is possible – to respond to each quip.

Q: The death penalty was abolished by the Senate on April 5. It’s a virtual certainty that the House also will approve the Democrat inspired bill. Do you feel safer?

A: Can’t say. Part of the abolition bluster was that the death penalty did not prevent murders, always a questionable assumption.

Q: “Bluster?” What ever can you mean?

A: It was never a serious proposition, just a useful piece of propaganda.

He then goes on to state that one can’t ever know if a punishment deters a crime. While that is clearly true, one can measure the impact of having a particular penalty on the actions of those it is meant to serve as a deterrent to. One could, for instance, compare the murder rates in death-penalty and non-death penalty states. One could look to a survey of law enforcement agencies which list the death penalty as the most ineffective tool for reducing violent crime. Or one could read the voluminous research and scientific study undermining the argument that the death penalty serves as a deterrent. While it may be true that it is not possible to know if the death penalty had a direct impact on a particular individual and prevented him from committing a crime, it is also honest to acknowledge that we don’t know that it did. And that is the crux: that the argument that the death penalty deters crime (one of the foundational arguments for retaining this punishment) is false.

 Q: One of the other points raised against the death penalty by Senate President Don Williams prior to the vote to abolish was that it had been randomly applied: Not everyone who committed murder in Connecticut has been sentenced to death.

A: And a good thing too. In practice, Connecticut’s death penalty punishment was applied ONLY if certain circumstances had been met. Not every murderer qualified. You had to work really hard to merit the death penalty. It is no argument in favor of the abolition of a punishment – say, ticketing for speeding – to say that not everyone who commits the offense is punished. This is an infantile objection: “Mommy, he did it too. How come only I got sent to bed?” Should we abolish ticketing for excessive speed on the highways because – just to fetch for a figure – 98 percent of speeders are not ticketed and of those ticketed 99 percent are not brought to trial? Grow up!

This argument, as I said in my comment to his post, is simplistic and possibly disingenuous. The comparison made in the “disparity” argument is not between non-death eligible murder and death-eligible murder. That is a false comparison. The comparison is between one death-eligible murder in which the penalty was not sought and another in which it was. The argument is made that the death penalty is arbitrary because often the decision to seek the penalty depends not on the crime itself – which may be comparable in every respect – but on other factors, such as the race of the defendant, the victim, the geographical location and sometimes the quality of the lawyer representing the defendant.

It is this disparity that gives us pause. In Connecticut, if two people commit two identical death eligible crimes, but one does it in New Haven and the other in Waterbury, there is a significantly greater chance that the person who committed the crime in Waterbury would have to defend against the death penalty and the one who committed the crime in New Haven would not.

So the next time someone tells you that of course the death penalty should be discriminatory and not applied to all murderers, tell them that you know they’re hiding critical information from you and their argument is based on a lie.

Q: Another argument was that the penalty once applied was irreversible.

A: People who said that the death penalty could be applied in error had to travel outside the confines of Connecticut to find such instances. Or they presented their objection as a theoretical proposition. No one awaiting death on Connecticut’s death row has been mistakenly led there by judicial error.

I would have said that this is my favorite argument, but that title belongs to the next one. We’ll get there. This one is particularly rich because it takes a very foolhardy view. The argument, essentially, is that we haven’t screwed up yet. Yes, that’s true. We haven’t. But we, in CT, have also had at least 4 DNA exonerations in the last half-decade. Before that, we’ve had other innocent men in jail. Is it a matter of time until we have an innocent man on death row? I don’t know the answer to that, but I’d say there’s a greater chance that we will, than that we won’t. That is not a risk I – or you – should be willing to take.

Q: But the appeals!

A: A means of postponing punishment, a judicial means of jury nullification.

…

[and elsewhere:] The abolition bill does not and cannot prevent pointless appeals.

You can see why this would be my favorite argument and it is one that has come up repeatedly. Variations include “endless appeals” and “endless habeas appeals”. I think it’s important to define what these terms mean and the Constitutional underpinnings of these mechanisms before illustrating just how misinformed, stupid and dangerous the argument is.

First, pointless signifies that the the only arbiter of a legal conviction is a jury at the trial level. It implies that any judicial review is a mechanism for undermining the jury’s just verdict. It also implies that somehow appellate courts are complicit in the liberal desire to avoid implementing the necessary punishment of death.

This flies in the face of what we normally call facts. For one, the Connecticut Supreme court has not only routinely upheld death sentences for those currently on death row (duh), but also has repeatedly and consistently upheld the constitutionality of the death penalty in Connecticut. Further, our supreme court overwhelmingly sides with the State against criminal defendants and if one is to accuse them of complicity in something, a more accurate accusation would involve the disturbing curtailing of individual rights and emasculation of Constitutional protections.

But I digress. Appeals are not pointless. They are checks on the functioning of our criminal justice system. They are the umpires that review the methods and processes we use. They are the enforcers of our rules of law, rules that we all rely upon to keep us and our freedoms safe. That a particular defendant has no viable claims for review does not make the entire appellate process pointless. Rather, it makes it indispensable.

Second, appeals aren’t endless either. There are very limited appeals granted to defendants. That they may take a lot of time to resolve is not the same as the appellate process having no end.

These are the appellate review options available to any defendant:

1. Direct Appeal to the Supreme Court of Connecticut (bypassing, by statute, the intermediate Appellate Court).

2. Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).

3. A Petition for Writ of Habeas Corpus in State Court.

4. An Appeal to the Connecticut Supreme Court from that decision.

5. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).

6. A Petition for Writ of Habeas Corpus in Federal District Court.

7. A Discretionary Appeal to the Second Circuit Court of Appeals.

8. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).

Sure, you may say, these are a lot! But 1, 2, 3, 4 are necessarily separate because they challenge different things. It is by statute and law in Connecticut (State v. Leecan), that some claims cannot be raised via direct appeal (#1) and must be raised via a petition for writ of habeas corpus (#3). In some states those two are combined, but that is a poor way to do it because #3 requires information that #1 cannot provide. [See this previous post on the meaning and importance of The Great Writ.]

To do away with any of these avenues would push us all down that slippery slope. The justice system is fraught as it is with allegations of bias, racism and unfairness. To limit avenues of redress would affect us all. You just haven’t been arrested yet.

To claim that these appeals are pointless because thesepeopleareguiltyletsjustkillthemalready is stunningly narrow-sighted.

In the end, I do not dispute that this is an entirely moral issue. If, however, you’re going to rely on other arguments to support your position, at least make sure you’re correct, so you can be taken seriously.

[As a side note, I am glad that news agencies are finally paying attention to those survivors of homicide who are opposed to the death penalty, instead of just those who are in favor of it.]

 

Penis interruptus

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When Edith-gate broke last week, there were plenty of questions being asked about the future of the death penalty, the propriety of the Senator’s comments, the level of contortion required of the Supreme Court to get out from under this one, but the most pressing question that most seemed to miss was what this meant for the ongoing trial of Joshua Komisarjevsky.

Now we have a partial answer: his lawyers filed this motion today (thanks, Courant!) asking the Hon. Judge Blue to interrupt jury selection for three months to allow the torturous image of a man hanging by his penis from a tree on Main Street to fade from the memories of the general public. The motion seeks a continuance of three months for this to happen. It does not request scrubbing Sen. Prague’s mouth with soap. An excerpt:

Her public comments were clearly reckless and undignified for an individual who is a member of the Connecticut legislature and her comments only serve to contribute to the mob mentality. If the senator truly did not care what people think of her reversal, she could have simply announced her reversal in a more responsible manner without need for anatomical reference. It is outrageous that an elected official of the senator’s stature would publicly advocate for public torture and attempt to subvert the judicial process with such sensational remarks.

(Are you paying attention, Connecticut Bar, Connecticut Criminal Defense Lawyers’ Association and CT Network to Abolish the Death Penalty?) This is a valiant effort and the motion includes lots of evocative and motivational language that is sure to rile up Komisarjevsky’s opponents and stir the smoldering embers within the heart of every abolitionist, but ultimately, it is a fool’s errand. Judge Blue is just as likely to grant this request as I am to become the next President of France.

What the motion does, however, is to highlight the inherent difficulty in selecting a jury in a case as inflammatory (pun wholly unintended) as this. It mentions a potential juror, who while being questioned seemed to give all the right answers, but upon being excused, erupted in cries of “Murderer! Asshole!” directed squarely at the defendant. If this were the case prior to Senator Prague’s comments, the motion argues, how are we to prevent the inclusion of such people, now emboldened by an elected official’s animalistic outburst, on this jury of supposed neutral peers?

That’s a rhetorical question.

You can thank me later for not including a picture with this post.

 

Abolition is dead and with it, a little bit of all of us

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“They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street,”

State Senator Edith Prague, D-Lots of Places That Are Not Cheshire, CT, who was for the death penalty before she was against it, before she was for it again, but only for one man.

The abolition of the death penalty in Connecticut was already hanging on by the thinnest of wires, thanks to Governor Malloy’s decision to take several Senators into his administration. The vote was a very, very close one. And that was before Sen. Prague’s comments today, after she had a meeting with Dr. He Who Shall Not Be Named, CT’s favorite victim.

But lets be clear: Sen. Prague may not have changed her stance on the death penalty in general – she may very well vote for abolition next time, she magnanimously informs us – but in this one instance, she wants the government of Connecticut to murder a man:

Prague indicated she may still support future efforts to abolish the death penalty but said, this year, she couldn’t look Petit in the face and “not give him something that would make his life a little easier.”

And more:

“I actually believe in repealing the death penalty,” said Prague, a senator for 16 years. “For Dr. Petit, for me to do one more thing to cause him some kind of angst, I can’t do it.”

…

Prague’s voice broke today as she recounted her visit from Petit.

“I can still see Dr. Petit’s face in front of me. Oh, my god in heaven. I’m doing it because that’s what they came in for,” Prague said. “They brought their lawyer and said, ‘If you vote for the repeal, it would make it more difficult.”

And she’s not the only one:

Sen. Andrew Maynard, D-Stonington, who voted for repeal two years ago, said he also has reconsidered as a result of conversations with Petit.

Those who are regular readers know that I am not easily left at a loss for words. To say that these comments left me reeling would be an understatement. So let me state this in terms that should not be misunderstood by anyone: Sen Edith Prague is deciding policy in the State of Connecticut based on the wishes of one man.

She may well be the deciding vote that defeats the abolition bill and she is doing so, not because of some moral opposition to the death penalty, but because one survivor made a personal request to her. And what of the others? Those survivors who are opposed to abolition? Did she even bother to listen to their opinions? Can she look them in the face and make their life easier? Or is their loss not the same? Must we always side with vengeance and “justice” over mercy and compassion? Where do you want to be, at the end?

Connecticut’s capitulation to the person in question is well documented: our former Governor Rell repeatedly invoked his name in defeating criminal justice and death penalty abolition bills. Public opinion polls routinely separate one particular case from the idea in general when asking about the death penalty. And apparently, a majority of Connecticut’s citizens would agree with Sen. Prague.

It is one thing, however, for the general populace to voice such opinions – they should and are entitled to it. It is quite another for an elected representative, who takes an oath, to put aside policy considerations for the specific interest of one individual.

Make no mistake: this is the State of Connecticut explicitly stating that Joshua Komisarjevsky and Steven Hayes are to be murdered. This should trouble you. The machinery of two governmental branches of the State have now maneuvered and conspired to bring about the deaths of two individuals.

If two elected representatives to State Government are so moved by their desire not to “make it more difficult” for this survivor, what chance do 12 members of a jury have?

I offer an analogy – admittedly weak, because nothing can adequately capture the gravity of the State’s decision to murder someone – but nonetheless: If this were not an abolition bill, but a bill to raise taxes and Sen Edith Prague made public comments that while she supports raising taxes and it will benefit the State, one individual from a city not in her jurisdiction came to her and begged her not to, because it would affect him personally, and so she will be voting against raising taxes this time. How hard would you laugh at her?

If the State can so contort itself to train its crosshairs on these two individuals – so explicitly, so blatantly and without any shame – why do you think you’re not next?

I suppose, on balance, an abolitionist might gain some small measure of hope from the fact that these public comments, with their explicit emphasis on the desire to please one individual over greater policy, would make it almost impossible for an appellate court to affirm the death sentence for a man so clearly and publicly marked for death. Upon rumination, however, I do not share that optimism. I have no faith in any of the branches of Government of this State. And they haven’t given me any reason to.

Whether you are for or against the death penalty is, in my opinion, entirely irrelevant to this post. Sen. Prague’s comments and her willingness to cow-tow to the emotional machinations of one individual should put the fear of God in all of us.

Today, we can no longer say that there is a divide between “them” and “us”. Today, Sen. Prague has made us all animals.

 

Death penalty abolition bill filed and waiting

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It isn’t even January yet and already state legislators are “pre-filing” bills to be voted upon in the next session of the state legislature. As expected, first among them is a death penalty abolition bill with State Rep. Gary Holder-Winfield as its proponent. Holder-Winfield, you may recall, spearheaded the first abolition bill two years ago, which passed both the House and Senate and was ultimately vetoed by “only a month left until she’s gone, wooohoo” Gov. Rell.

Holder-Winfield has also introduced other necessary criminal justice reform legislation, like adopting the best practices for eyewitness identification procedures and videotaping interrogations. He has “pre-filed” a bill addressing the former once again.

Of course, with the just concluded Hayes trial and the upcoming circus in the trial of his co-defendant Joshua Komisarjevsky, the debate on the death penalty bill is likely to be emotional, contentious and close. But no one can accuse Holder-Winfield of falling prey to the typical abolitionist tendencies of avoiding confrontation and “waiting for the right moment”, which almost never materializes, because there’s always a heinous crime around which the pro-death penalty folks will rally.

With newly elected anti-death penalty Dan Malloy taking over the reins of the State for the next 4 years, there’s a sliver of hope for abolition.

H/T: CTNJ

On the media

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Steven Hayes’ attorneys finally speak to the media, about the hard work of the jury, the arbitrariness of the death penalty – and most scathingly – the inordinate amount of attention given this case by the press. When I grow up…

Make sure you watch from the 9:00 mark to the end. For those who’ve agreed with my criticism of the media coverage, it’ll put a smile on your face. Which, in light of recent events, is at a premium.

Video shamelessly taken from here.

In death, there are no winners

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A jury of 12 has announced its verdict: Steven Hayes is to be sentenced to death. To many, this is a just outcome. To others, it is not. I won’t go into it again, because the reality is that I won’t change your mind and you won’t change mine. Three women lost their lives needlessly in 2007 and today, a man has been scheduled to lose his. In this game, there is only death. And with death, no one wins.

My only hope is that one day, we as a State can look back upon this and other sentences of death with a certain sadness coupled with the knowledge that those days are past us – that we no longer ask our citizens to stake their mental well being on the anguishing task of deciding the fate of another man’s life – that we are no longer in the business of adjudicating worthiness to breathe.

Until then, I mourn. For this morning, Steven Hayes was the only one with blood on his hands. Now it’s on all of ours.

[Update: Gamso has the eloquent words that I couldn't bring myself to write. Norm has the harsh ones. Scott points out, soberingly, that we've long had blood on our hands.]

An incovenient system

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I’ve been watching the torturous trial of Steven Hayes from afar, overcome by shame, sadness and disgust. This trial has showcased not only the worst acts that man is capable of, but also the worst emotions that we allow ourselves to succumb to and has shone a spotlight on the primal, base urges for bloodsport that we have.

It’s also disturbing for another reason: that so many – victims, witnesses, bystanders and observers – are perfectly willing to subjugate the very system that is intended to protect us all to the raw, consuming rage that overcomes us when we are faced with terrible acts. And that is a massive problem for me, for you, for all of us.

I rarely quote the doctor here on this blog, or even mention his name in passing. It’s a decision I made a long time ago – to not comment on his comments. The man has suffered tremendous loss and I’m not going to involve him in my rants against the death penalty or the “abuse of tragedy” legislature. But I will quote him today, if only to demonstrate the problem that this trial is creating for the criminal justice system as a whole. After today’s shock-inducing testimony, this snippet of a quote was repeated on Twitter, in newspaper reports and I’m certain it will be broadcast on the nightly news:

the system re-victimizes victims at an alarming rate

This, from the victim of a crime, the trial for which is currently underway. Sneak into the comments section of any online newspaper report on this case in Connecticut and behold the vitriol for yourself, if you have the constitution to stomach it (I’ve written about these comment sections before and why these venerable institutions continue to permit such “dialogue” is beyond me). Those comments, from ostensibly the general public, echo those made today. The most common refrain involves questioning the need for a trial, the certainty of the defendant’s guilt and a desire to save everyone the pain of having to sit and listen to testimony. For example:

After reading about half of the first page all the voices in my head were screaming “Give this d0uche nozzle* the injection now!

and

What do the writings of this lunatic have to do with the penalty phase of this trial?  What do they have to do with anything???  This is another disgusting example of how the victim IS victimized all over again in the name of protecting the murderer’s rights.

He should have no rights.  He is GUILTY, GUILTY, GUILTY beyond a shadow of a doubt, and he should be erased from the face of the earth NOW!

This is a refrain that is picking up steam: particularly because of this case.

This is very, very dangerous. These are the jurors of tomorrow. These are the people who vote. These are people who will one day decide whether another man is guilty or innocent. That there is such a fundamental lack of understand – or perhaps disdain – for the underpinnings of a criminal justice system that starts out with the most needed of principles: that every man is innocent in the eyes of the law, unless proven guilty and found to be so by a jury of his peers, should make us all worried.

That it is seen as an inconvenience – a travesty even – that a victim has to attend the trial of the accused, perhaps even provide testimony is not something we should dismiss lightly. As I’ve quoted before and will reproduce below, it simply cannot suffice to accuse. The system cannot make concessions in the rules of the game based on the perceived guilt in the eyes of the public. One cannot simply declare oneself the victim of a crime and then protest indignantly that it should be enough that one has declared oneself so. There must be a public trial – graphic, painful, heartwrenching if the facts are such – because there is no other way. Of course, this is a large part of why the vast majority of cases never go to trial. People are aware that they have to relive the most horrible moments of their lives. They have to sit and listen to gory events in excruciating detail. Some choose not to endure that and others decide differently.

Now for that quote:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. There isn’t one system for those “obviously” guilty and another for those “likely” guilty and those who “may or may not be guilty”. There is one system – tried and true – for everyone. And that’s the way it must be, to ensure conformity, consistency and to avoid appearances of bias. The sweeping tide of indignation, the emperor complex, must be halted. Because tomorrow, you will be on trial and a mass of others will have pre-judged you.

Why am I writing about this here? Clearly, a newspaper report about the day’s proceedings is not the right place to question the sentiment. Many others seem content to join the chorus. I know that I am firmly in the minority. But it disturbs me to see others, who are possessed of a greater intelligence than mine, accept as gospel the deafening din that emanates from the roused, amorphous, homogeneous mass. Let the doctor have his say, for sure. Allow him his anger, his sorrow, his vengeance. But realize that tomorrow there will be another trial, with another man and another victim and the system must do right by them too. A system that is so malleable, so subservient to the needs of one or another is no system at all. It would then be called a farce.

Besides, I haven’t written a post in 6 days and I have to do something keep those two last readers coming back.

[Obviously, once again, this is my personal view only and is not endorsed by the public defender's office. Read the disclaimer if you have any questions.]

*remember kids, we strongly discourage the use of this kind of language.