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For the second time, a jury sentenced Russell Peeler to death for ordering his brother to kill a woman and her son days before the son was scheduled to testify against Peeler in a different prosecution.

The jury, however, may have created an appellate issue. Earlier in the day, they sent a note to the judge asking:

if they find the aggravating factors outweigh mitigating factors, can they find a life sentence for Peeler is enough?

The judge responded in the negative and the jury returned with a verdict of death. The statute says, in essence, that if the aggravating factors outweigh the mitigating factors, then the sentence is death. However, in State v. Rizzo [pdf], the Supreme Court held that (at page 242):

such instructions must impart to the jury that, in deciding that the aggravating factors outweigh the mitigating factors by any amount or degree, it is in effect deciding that death is the appropriate punishment in the case, and that it is persuaded of this beyond a reasonable doubt. 38

-Fn 38: This does not mean, however, that the jury must be given two separate and different questions to answer, namely, whether (1) the aggravating factors outweigh the mitigating factors, and (2) death is the appropriate penalty in the case. The second question is simply part of the first, and no separate jury interrogatory is required for the second. Neither § 53a-46a nor our state constitution requires such a separate question. See State v. Cobb, supra, 251 Conn. 452-56. We already require, however, as a matter of our supervisory role over the administration of criminal justice, that the jury be specifically instructed that its verdict on the weighing process will determine whether the defendant lives or dies. See State v. Breton, supra, 235 Conn. 249. Implicit in that instruction is that the jury must determine that death is the appropriate penalty. Thus, by imparting that consideration to the jury in its instructions, we merely make explicit what is already implicit. - end Fn38

In order to avoid any state constitutional question, therefore, and in order fully to meet the concerns regarding the reliability of the ultimate decision of life or death, we deem it appropriate for the jury to be reminded of the ultimate nature of its decision, namely, that, where the aggravating factors outweigh the mitigating factors, it is in effect deciding that death is the appropriate penalty in the case. Consequently, the jury must be instructed that it must be persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors and that, therefore, it is persuaded beyond a reasonable doubt that death is the appropriate punishment in the case.

It seems to me that what the court is saying is that by finding that the aggravating factors outweigh the mitigating factors, a jury necessarily finds that death is appropriate. That a jury cannot find the aggravating factors to outweigh the mitigating and yet not deem death appropriate.

In Peeler, it seems that the jury has done just that. This will get interesting.

Yesterday the penalty phase hearing in the capital trial of Russell Peeler got underway in Bridgeport Superior Court. This is his second penalty phase hearing after the first one ended with a hung jury. Already there’s some drama. Two jurors asked to be dismissed after the Connecticut Post mentioned their names in a story over the weekend.

Defense attorney Erskine McIntosh moved for a mistrial, saying he was concerned about the possibility of future problems with jurors. “I just don’t think it’s worth that type of risk, particularly when this man’s life is on the line,” McIntosh said.

Judge Robert Devlin Jr. denied the request. “I detected no hesitation in their ability to be up to the task,” he said of the remaining jurors.

Peeler’s hearing is one of two set for this month. Lazale Ashby’s hearing in Hartford is also scheduled for this month.

Update: Heather Collins of the Journal Inquirer has a more detailed article.

[Prosecutors] Melchiorre and O’Connor presented evidence of a statutorily-mandated “aggravating factor,” showing that Campbell created a “grave risk of death” to Carolyn Privette when he shot her.

[Public Defenders] Gold and Smith countered with evidence of 10 “mitigating factors,” including Campbell’s chaotic upbringing, his drug-addicted father, his relatively low IQ, and his age and immaturity at the time of the killings.

And in a move that shocked some longtime court observers, Campbell himself took the stand - something he didn’t do in either the guilt phase or the first penalty hearing.

“I can’t take it back,” Campbell testified under sharp questioning from Melchiorre as she asked him what he had done.

Jurors also heard Campbell - whose mother once testified that she prayed to God to have a child and conceived after she levitated in a prayer session - say that he has already been forgiven by a higher power.

“My past sins are forgiven. God has forgiven me. No one has helped me reach this point but God,” Campbell told jurors.

This strikes me as a case in which there is significant mitigating evidence. The Supreme Court will automatically hear the appeal.

Original post: Earlier, Judge Mullarkey in Hartford rejected Jesse Campbell’s challenge to the Constitutionality of the death penalty and sentenced him to death. More details as they emerge.

Here is a list of the others on CT’s death row. Campbell brings the total back to eight. Ivo Colon is still awaiting a new penalty hearing, I think and Lazale Ashby’s penalty phase starts at the end of this month.

Campbell has an IQ of 78.

All previous coverage of this can be found here:

• DP arguments end; ruling awaited
• Death penalty hearing concludes
• Two more prosecutors testify
• DP Constitutionality hearings continue
• Prosecutorial discretion and the dp
• DP Constitutionality hearing under way

Blacks convicted of killing whites are not only more likely than other killers to receive a death sentence – they are also more likely to actually be executed, a new study [OSU press release] suggests.

This apparently is the first study to examine whether the race of murder victims affects the probability that a convicted killer gets the ultimate punishment. The study was conducted by David Jacobs, professor of sociology at Ohio State University along with Zhenchao Qian, professor of sociology at Ohio State, Jason Carmichael of McGill University and Stephanie Kent of Cleveland State University. Their results appear in the August 2007 issue of the American Sociological Review.

The study examined outcomes of 1,560 people sentenced to death in 16 states from 1973 to 2002. These 16 states were chosen because they had the complete data that the researchers needed for the study.

Other research has shown that the great majority of those sentenced to death have their sentences overturned in appeal, Jacobs said. But little is known about the factors that lead some condemned prisons to be executed.

There is more than a two-fold greater risk that an African American who killed a white person will be executed than there is for a white person who killed a non-white victim.

The study also shows that blacks who kill non-whites are less likely to be executed than other death row inmates.

“The fact that blacks who kill non-whites actually are less likely to be executed than blacks who kill whites shows there is a strong racial bias here,” Jacobs said. “Blacks are most likely to pay the ultimate price when their victims are white.”

Hispanics who killed whites were also more likely to be executed than were whites who killed non-whites, the study showed. But the risk of execution were not as strong for Hispanics who killed whites as they were for blacks who killed whites.

Here is a Newsweek interview with Jacobs and here is a 1998 study by the DPIC chronicling the racial disparity in seeking the death penalty.

I’m going to keep looking for the study itself. If someone has a link to it, please post it in the comments here.

H/T: Connecticut Network to Abolish the Death Penalty

The State sure does move fast. Gov. Rell today proposed some changes in light of the recent Cheshire tragedy. She has asked parole to re-classify those convicted of Burglary in the 2nd Degree as “violent” offenders, which means they will now be ineligible for parole until they have served 85% of their sentence.

She also said that the Board of Paroles will begin reviewing those convicted of Burglary 2nd who are already out on parole (38 in number). Parolees with convictions for night-time burglaries and burglaries where the home was occupied will also be subject to random night-time check-ins by their parole officers. The reasoning, echoed by some, is that a burglar who enters a home at night or has knowledge that the house is occupied has a violent strain.

Burglary II is classified as any home burglary committed at night or when a home is occupied.

“Burglary has long been considered a generally non-violent offense, but those who commit these crimes at night or when a home is occupied are far more likely to encounter a homeowner — meaning the chances of violence are increased exponentially,” Rell said.

Does this mean that if an inmate can show that he definitively knew that the home was unoccupied and only then entered, is not violent?

The governor also said that certain burglars eligible for parole will undergo psychiatric evaluation and that the Board of Pardons and Paroles will receive more information from police and the judicial system.

For those who are interested, Burglary 1st, Burglary 2nd with a firearm and Burglary 3rd with a firearm are already “violent” offenses.

Update: I don’t want to write a new post, so I’ll just add on here. Things are getting stranger. Bob Farr can’t get out of his own way:

Earlier this week, Robert Farr, chairman of the Connecticut Board of Pardons and Parole, said that the release of the two men was appropriate based on the available evidence.

Farr then said the board didn’t have all the facts on Komisarjevsky’s background when it chose to parole him. If it had, he said, the board’s decision might have been different. Farr has said that the board had no idea a Superior Court judge had called Komisarjevsky a “cold, calculating predator” during a 2002 sentencing because a transcript of the sentencing was not included in his parole file, even though state law required it to be there.

I’ve seen worse things said during sentencing. Nasty things get said during sentencing. I very much doubt that the parole board would have denied parole based on comments at sentencing. I do find funny the notion that they didn’t have the transcript and the implication that they couldn’t do anything about it. It wouldn’t have been the first time that they canceled or postponed a parole hearing for want of documentation.

Now Gov. Rell is jumping into the act:

Rell said she is forming a special panel to review not only how Komisarjevsky and Hayes were paroled, but also to take a look at the entire process of who gets released from state prisons.

“I want a top-to-bottom assessment of all the procedures and processes involved in charging, sentencing and releasing those convicted of crimes in Connecticut. I want the facts of the Cheshire case to be used as a touchstone during the course of this examination,” she said.

I’m not quite sure what that second paragraph means. She wants a review of the judicial system in CT? Okay…

And Rep. Caligiuri has another idea:

Word that the parole board released Hayes and Komisarjevsky based on incomplete case information and without a full hearing prompted one state senator to call for an immediate moratorium on further parole decisions until a full review is complete.

“I think the entire parole process seems to be in shambles,” said Sen. Sam Caligiuri, R-Waterbury. “We can’t afford to have another mistake made. We can’t afford to have another person go out on parole until the board of parole gets its act together.”

Sigh. Screw you Hayes and Komisarjevsky.

Original: As expected, New Haven State’s Attorney Michael Dearington has charged Steven Hayes and Joshua Komisarjevsky with six capital felonies each in the triple homicides in Cheshire, CT [previous coverage here].

As a colleague pointed out today, the question now becomes: Can they get a fair trial an impartial jury anywhere in this State given the publicity this crime has received?

Technorati Tags: death penalty, connecticut, triple homicide, william petit

The hearing into the Constitutionality of Connecticut’s death penalty wrapped up yesterday with oral arguments made by both sides.

Public Defender Ronald Gold argued that Campbell’s defense has proved that 12 of Connecticut’s 13 state’s attorneys do not follow a uniform standard or written guidelines when determining whether to pursue the death penalty.

Gold based his conclusion on the testimony of the state’s attorneys for the Waterbury and New Haven judicial districts. Given the same set of facts in double-murder cases, Gold argued, the two prosecutors reached different decisions on seeking the death penalty.

Waterbury State’s Attorney John A. Connelly testified that he has charged the accused with capital felony, felony murder and murder - the precursors to seeking the death penalty. Connelly said he had no discretion to do otherwise, according to Gold’s recollection of Connelly’s testimony.

But New Haven State’s Attorney Michael Dearington, Gold said, testified that when he has faced similar circumstances, he has charged a defendant with two murders rather than capital felony, felony murder and murder, Gold said.

The Court (Mullarkey, J.) is expected to rule on this and then sentence Jesse Campbell on August 17.

All previous coverage of this can be found here:

•  Death penalty hearing concludes
• Two more prosecutors testify
• DP Constitutionality hearings continue
• Prosecutorial discretion and the dp
• DP Constitutionality hearing under way

The controversy over the Criminal Justice Commission’s choice for Hartford’s new top prosecutor [previous coverage here] won’t go quietly into the night. Yesterday, the Courant published this letter [scroll to the bottom] to the editor from a current Hartford prosecutor. Today, they have this story covering all the reactions to the appointment and the ensuing controversy.

In the week since Gail P. Hardy’s appointment as the first African American to be lead prosecutor of a judicial district in the state, some of her new staff and the outgoing prosecutor have raised questions about whether the state’s Criminal Justice Commission selected the most qualified candidate.

The commission chairman, state Supreme Court Justice Richard N. Palmer, said Wednesday he has never denied that diversity played a role in the commission’s decision to hire Hardy. But he said her race was not the only relevant factor.The application of the 44-year-old Hardy included recommendations from a presiding judge, a state’s attorney, a police chief, the president of the Hartford NAACP, her pastor at a Hartford church and others, Palmer said. She presented herself as a well-rounded candidate, who not only had experience as a prosecutor but experience in other aspects of the state’s justice system, Palmer said.

Connecticut’s chief state’s attorney, Kevin Kane, has spoken to the prosecutors in the Hartford office:

Hardy’s supporters, including Kevin Kane, the lead prosecutor for the state, and Hardy’s current boss, Waterbury State’s Attorney John A. Connelly, said Wednesday that Hardy can overcome the obstacles created by the controversy.

Kane declined to address the controversy, but said he has talked with prosecutors in the Hartford office and is “confident” that “together they will do a good job.”

I don’t really care about the controversy, except that it makes for good reading. What I do care about is the impact that a Waterbury prosecutor will have on the death penalty policy in Hartford.

Technorati Tags: gail hardy, prosecutor, hartford, connecticut

Update2: Here [pdf] is a copy of the order of the Board of Pardons and Paroles and here is their press release. [HT: SL & P]

Update: Abolish! has a copy of the statement given by U.S. Rep. John Lewis to the Board of Pardons and Paroles during the hearing. Here is an excerpt:

“We sometimes hear that a guilty person has gone free because of some legal technicality, and we understandably feel frustrated when that happens. Now we have the opposite situation. A man who may well be innocent may die tomorrow — all because of those technicalities. This is much more than frustrating; it is tragic. It is unjust. And at a time when we are trying to convince the whole world that our way is best, it does not speak well of us. I will say only a little about the facts of the case, because you have other witnesses that know them better than I.

“But here is what I understand to be true. I understand that there is no physical evidence. No murder weapon. No fingerprints. No DNA.

“Just the testimony of a few frightened and confused people who were taken completely by surprise when a tragedy suddenly erupted — without warning — for just a few seconds — in the middle of the night. And now, the case against Mr. Davis, that rested on that testimony, is a shambles. I understand that there were nine key witnesses, seven of whom have recanted their testimony. The eighth witness has left the state and refuses to talk about the case. And the ninth cannot recant without confessing that he committed the murder. Indeed, some of the other recanting witnesses have now implicated him.

Original post: Breaking news is that Troy Davis has been granted a 90-day stay of execution [eerily, the link is to a news website whose URL is 11alive.com].

The state Board of Pardons and Paroles has granted a 90-day stay of execution for Troy Davis, who was to be executed Tuesday in the killing of a Savannah police officer in 1989.

Lawyers for Davis spent more than five hours Monday pleading with the board to grant a reprieve, arguing that Davis is innocent of the murder of Officer Mark MacPhail.

Prosecutors were given a chance during the closed-door hearing to rebut the request for clemency for Davis, who was to be executed Tuesday at 7 p.m.

The board’s options included granting a stay of his execution while it considers the issues.

Also Monday, Davis’ lawyers filed an appeal before the state Supreme Court of an earlier decision by a Chatham County judge to deny a stay of Davis’ execution.

Among the people who argued for clemency for Davis during the parole board hearing were friends, family and U.S. Representative John Lewis, an Atlanta Democrat and civil rights icon. Five witnesses who testified at trial spoke to the board on Davis’ behalf, Ewart said.

Check in with CDW and EyeID for all the latest news.

The other big story this week is the appointment of a new Chief State’s Attorney for Hartford’s Part A court. Waterbury prosecutor Gail P. Hardy was appointed to the post, replacing current State’s Attorney James Thomas. Attorney Thomas is retiring after 30 years as a prosecutor, 11 of which were spent as Hartford’s top prosecutor. Hardy beat out several other applicants, including 7 who are currently working in the Hartford office. Attorney Thomas had some choice words about that.

Attorney Hardy worked for Waterbury State’s Attorney John Connelly and it will be interesting to see how Hartford handles capital felonies from here on out. As readers might know, a hearing on the constitutionality of application of the death penalty in Connecticut just concluded in which defense attorneys argued that the death penalty was applied arbitrarily (and mostly in Waterbury).

Whether her experience and tutelage under John Connelly in Waterbury will impact the Hartford office’s policy to pursue the death penalty in a greater number of cases remains to be seen.

Somehow I missed this, but the special hearing into the arbitrariness of the application of the death penalty in CT concluded last month, with the last of the State’s Attorneys testifying.

The hearing began in February and concluded Thursday with the calling of Fairfield State’s Attorney Jonathan Benedict.

Like the other 11 top prosecutors, Benedict testified that the only written guideline about the death penalty is the state statute that spells out the specific instances allowing for death penalty prosecution.

Benedict - whose subpoena had expired but who agreed to testify anyway without being compelled - also testified that he has discretion on when to seek the death penalty, as opposed to life in prison, in a capital case.

“The ultimate decision is mine, as a state’s attorney,” Benedict said.

Benedict’s testimony took less than 10 minutes.

My memory is a little different from that of the author of the news story. Benedict did testify in line with 10 of the other State’s Attorneys, but the Waterbury State’s Attorney John Connelly testified earlier that he did not have discretion to seek the death penalty. From my previous post:

Connelly said he does not have a choice not to pursue a capital case. “That’s a misuse of discretion. … If you have the evidence and you don’t seek it, I think a state’s attorney would be abusing that discretion.”

The question, of course, is the Constitutionality of this prosecutorial discretion in seeking the death penalty. 5 out of the 8 inmates currently on death row were prosecuted in Waterbury.

There will be a verdict in Jesse Campbell’s matter soon, though:

[Judge] Mullarkey asked [public defenders Ron] Gold and [David] Smith and prosecutor Vicki Melchiorre and her co-prosecutor, Dennis J. O’Connor, if they were prepared to conclude the proceeding with arguments on the motion, but the defense asked for more time to prepare briefs to support their arguments.

O’Connor said the state won’t be filing any additional briefs in response to the motion.

Mullarkey ordered briefs to be filed by July 12, and set July 19 for a final hearing on the motion, when he may rule on the defense request to impose a life sentence.

The defense team, which now also includes capital specialist Michael K. Courtney, has filed additional motions but no hearing date was set.

Get set for a verdict soon and perhaps an appeal regarding the Constitutionality of the application of Connecticut’s death penalty statute.

Previous coverage:

• Death penalty constitutionality hearings continue
• Death penalty constitutionality hearing under way

Yesterday, a Hartford jury convicted Lazale Ashby of the murder of Elizabeth Garcia.

The jury found Ashby guilty of murder, felony murder, capital felony, sexual assault, burglary and three counts of kidnapping in Garcia’s death. Authorities charged that he beat, stabbed and strangled her sometime between 7:30 p.m. on Dec. 1 and 7 a.m. Dec. 2, 2002.

The State is seeking the death penalty and jurors will return in September to commence the penalty phase of the trial.

Drugs played a prominent role in Ashby’s life, authorities say.Sources close to the investigation said Ashby grew up in Hartford’s Asylum Hill neighborhood, mostly on Huntington Street. His mother was a drug addict, and his father was not around to raise him. He was cared for by his grandmother, his only close relative until she died after his trial started.

Part of what sank him was this note [pdf] he passed to another inmate, which was introduced into evidence.

Just sad all around.

Technorati Tags: death penalty, connecticut, lazale ashby

For those interested, I promised to answer this question over the weekend. Here’s the answer: It got screwed.

The bill was HB 7365 - An Act Concerning the Procedure in a Capital Felony Trial. The provisions were that if a death penalty jury was deadlocked on the punishment to be imposed, the jury would be discharged and the judge would impose LWOP. It was voted out of the Judiciary Committee and then things started going downhill. Among other things, I wanted to point out this amendment that was proposed:

(a) any person convicted of a capital felony and sentenced to death who takes a direct appeal of such conviction to the Supreme Court shall file such appeal not later than twenty-one days after imposition of sentence.

(b) The defendant’s briefs and the state’s briefs shall be filed in accordance with a schedule that will ensure that all briefs are filed not later than four months after the date of the imposition of sentence.

(c) The Supreme Court shall schedule oral argument not later than six months after the date of the imposition of sentence.

This amendment called for oral argument in a death penalty case within six months of the imposition of the sentence. This would have been a logistical nightmare. I’m not sure transcripts would be ready in 6 months, let alone the four month limit for filing the briefs.

It also affected the timeline for filing a Petition for Writ of Habeas Corpus:

(a) An application for a writ of habeas corpus challenging a capital felony conviction or the imposition of a sentence of death shall be brought not later than one hundred eighty days after the date of the imposition of such sentence. Such application shall fully plead all cognizable claims that the defendant’s conviction or sentence was entered in violation of the Constitution or laws of the state or the Constitution of the United States.

(b) Notwithstanding the provisions of subsection (a) of this section, the filing of a subsequent application for a writ of habeas corpus shall not be barred if (1) the facts underlying the claim were unknown to the defendant or the defendant’s attorney and could not have been ascertained by the exercise of due diligence prior to the filing of the earlier application, and (2) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would have reasonably led the original trier of fact to have either found the defendant not guilty or not sentence the defendant to death. The court shall hold a hearing on such subsequent application not later than one hundred eighty days after the filing of such application.

Anyone that practices Habeas law will tell you that filing an Amended Petition in a regular felony trial case within six months is a tall order, let alone a capital felony trial case. Keep in mind that the Habeas and direct appeal would proceed simultaneously under the provisions of this amendment.

There needs to be serious debate in the legislature about the death penalty. The last time there was serious debate, the abolition of the death penalty received 60 votes. The debate was shelved pending the execution of Michael Ross, because legislators felt it was an inappropriate time. Since then, it has not been revived. Aside from geographical disparities in the imposition of the death penalty, there are racial disparities as well, which need to be evaluated and discussed. With an election year next year, there’s little hope of serious debate any time soon.

Technorati Tags: connecticut, death penalty

Two New Jersey legislative proposals in the past few days caught my eye: one good, one bad. In the plus column is New Jersey’s bill to abolish the death penalty, which was voted out of the Judiciary Committee (8-2) and now heads to the full Assembly for a vote.

If also passed by the Assembly and signed by Gov. Jon Corzine, who opposes capital punishment, it would make New Jersey the first state to legislatively abolish capital punishment since 1976. That was the year the U.S. Supreme Court upheld the first revised death penalty laws after striking them down nationwide four years earlier.

“That would be historic,” said Richard Dieter, director of the Death Penalty Information Center in Washington, D.C.

The bill’s sponsor, Sen. Raymond Lesniak (D-Union), said passing it would “give New Jersey an opportunity to lead the nation by recognizing the death penalty has no reason to exist.”

“The death penalty cannot be fixed,” Lesniak said. “The time has come to abolish it.”

Full audio of the judiciary committee hearing is available here. Click on listen and then skip to around 51 minutes in.

HT: CDW

On the other hand, Lyndhurst, NJ has this asinine proposal:

Lyndhurst is gathering feedback on a proposal to require background and fingerprint checks of all ice-cream truck and other food-on-wheels vendors as a way to protect children. ‘Most of the people who come to an ice-cream truck are kids,’ says Mayor Richard DiLascio. ‘A parent might not always be around.’ Volunteer coaches and teachers must already submit to such checks.

This is nothing but fear mongering. As Mark Bennett rightly points out, only 7% of all reported sexual assaults against minors are carried out by strangers. He also has an interesting proposal to reduce child sexual assault.

Yes, that is a “Jersey Ice Cream ” ice cream truck in the picture.

Further update: Workman was executed last night around 1:38 am. Back to your regularly scheduled programming.

Update: Workman’s public defenders are working hard on his behalf. After the denial of cert. by SCOTUS, it seems that they have now filed a Motion for Stay with Tennessee’s Supreme Court. There’s no timestamp, so I can’t tell for sure whether I’m linking to something hours old, but it does reference the fact that three Supreme Court justices would have granted cert, so I think it is fairly recent.

I haven’t posted about this TN lethal injection challenge, but I have been following it. Minutes ago, SCOTUS denied [pdf] the petition for certiorari. Justices Stevens, Souter and Ginsburg would have granted cert. I’m disappointed, but not surprised.

As CDW notes, Workman’s attorneys did a fantastic job. Please take the time to read the petition here [pdf]. All the pleadings can be found here.

Edit: I had the wrong link for the SCOTUS denial. Now updated.

Technorati Tags: death penalty, tennessee, philip workman