death penalty
Death penalty complex litigation stagnant
May 6th
Forgotten in the circus of the Michael Ross execution is the complex litigation pending before Justice Callahan, which challenges Connecticut’s Death Penalty scheme. The litigation alleges that the death penalty, as applied in CT, is unconstitutionally biased on racial and geographic grounds. The Courant reports that Superior Court Judge George Levine has been assigned to assist Justice Callahan, who asked to be relieved because of health issues.
Waterbury SA John Connolly comments
public defenders have conducted an exhaustive study of bias in capital cases, but have not released the results of that study. "If the study shows what they claim it would show, we would have
seen this study years ago. The reason we haven’t heard about the
conclusions is because it did not show what they wanted it to show".
I wish I could claim to know much about the results of this study – but I don’t. Even if I did, I’m sure this is one thing I couldn’t cover on this blawg. But, methinks Atty. Connolly doth protest too much. After all, 6 out of 8 death row inmates are from Waterbury.
This was last brought up by Justice Norcott in his dissent [pdf] to the January decision regarding an Application for Writ of Habeas Corpus by Dan Ross as Next Friend. Justice Norcott wrote,
‘‘to permit an execution to proceed without the benefit of the completion of that study and a ruling thereon amounts to an informal and premature judicial imprimatur on the fairness of the death penalty process.
Moreover, should the habeas court subsequently conclude that our entire death penalty system is fundamentally flawed as discriminatory on the basis of race after the defendant has been executed, our citizens’ confidence in this court and the rest of the judicial branch as a bastion of civil rights might suffer irreparable harm.’’
I’m getting antsy waiting for the Ross decision today.
More death penalty news and figures – MA and CT
May 6th
Prof. Berman further discussed (a few days ago) the economic impact of MA Gov. Romney’s proposed "foolproof" death penalty bill; something that I commented on here. You can view a copy of that bill here [pdf]. He also asked me (or anyone else) to guesstimate the costs involved in the Michael Ross trial. Well, don’t need to.
The wonderful Office of Legislative Research has already done some of that work. According to this memorandum [.doc file], updated costs as of 2/1/705 are $292,319. Another memorandum [.doc file] puts the costs of the Department of Correction at $300,000 for the period of November 2004 – March 2005 and a combined cost of $50,000 for the public defenders and state’s attorneys office.
MA seeks to reinstate death penalty
Apr 30th
UPDATE: Prof. Berman correctly points out that I have neglected to discuss the economic concerns surrounding the re-instatement of the death penalty in MA. Certainly, there are many studies [pdf] out there that analyze and discuss the cost of imposing the death penalty, which I won’t rehash here. Prof. Berman does make an interesting observation:
Consider also the fact that, according to statistics I found on the
web, alomst twice as many people are killed in Massachusetts by drunk drivers than by murderers, and the data
on rape and other violent crimes suggest that Romney’s bill may
distract from more pressing criminal justice issues in Massachusetts.
This is certainly a compelling economic argument against the death penalty. Here’s what stood out to me – In CT, in 2000, there were 98 murders, 678 forcible rapes, 3832 robberies and 6450 aggravated assaults. In CT, as of 2002, it cost the PD’s office an average of $380,000 per case for the 7 men on death row, totalling $2,659,921. By comparision, those sentenced to life after being charged with the death penalty cost an average of $202,365, totalling $2,630,745. Those who weren’t charged with the death penalty, but were sentenced to life after a trial cost an average of $79,777. Full report of the CT Commission on the Death Penalty here. The 2003-2004 cost of providing capital defense in CT was $1,959,523. That’s a lot of money that could be saved.
Original Post: Thanks to Injustice Anywhere, I just read this NYT article about MA seeking to reinstate the death penalty (well, it’s mostly the Governor). Gov. Romney calls it, rather unabashedly, as foolproof as humanly possible. Here are a few of his proposed features:
- It would require that there be "conclusive scientific evidence," like DNA or fingerprints, to link a defendant to a crime.
- It would allow a death penalty to be imposed only if a sentencing jury
finds there is "no doubt" about a defendant’s guilt, a standard that is
stricter than "beyond a reasonable doubt." - It would restrict capital punishment to murders involving terrorism, prolonged torture, multiple killings or murder of someone involved in the criminal justice system.
- Defendants who had previously been convicted of first-degree murder or
were serving life sentences without parole would also be eligible. - Another unprecedented provision would give the defendant the option of
having two juries – one for the trial and one for the sentencing. - It also includes a requirement that defendants get at least two and
possibly three lawyers, that scientific evidence be examined by a
review board, that every death sentence be reviewed by the state’s
highest court, and that a special panel be set up to handle complaints.
Romney calls it a model for the entire nation. Heh. RIght off the bat, I see good things and bad things about this proposed legislation.
The Good:
The requirement that there be atleast two lawyers for a capital defendant. Everyone who follows capital litigation knows that there is a terrible need to skilled and experienced lawyers and that one lawyer simply cannot adequately represent a capital defendant. By mandating that there be two, perhaps three, the bill is providing for effective representation.
Also, at first glance, the requirement that there be two juries is interesting and has potential to be a good provision. When there is one jury, it is difficult to plead not guilty – go through a trial, present (usually) horrific evidence and get convicted – and then turn around at sentencing and provide mitigating circumstances to that same jury. Perhaps the requirement that the sentencing jury be new and look at the aggravating and mitigating factors with untainted eyes might provide a better process.
Finally, the DNA evidence. Over the years, the stories of those who have been exonerated based on DNA evidence is growing. To see a bill that has DNA evidence built in to the process that triggers the death penalty is uplifting. I’m not sure what the "review board" is that is supposed to review scientific evidence, or who it will be composed of, so I’m not going to comment on that.
The Questionable:
The requirement that death be found "beyond all doubt" instead of beyond a reasonable doubt. If my memory serves me correctly, Illinois has attempted to introduce similar legislation. I’d love to see it pass, but somehow I don’t think it will.
The Bad:
Finally, we come to the problem with this bill. Point 4. above. Defendants who have previously been convicted of first-degree murder and are serving life without parole would be eligible. Huh? Perhaps Gov. Romney should be reminded of a little clause called the Ex-Post Facto clause [Article I, Section 9]. Why would he even consider putting that in? Doesn’t he have lawyers working on this with him? Why wouldn’t they tell him?
Anyway, it certainly is an interesting bill. Let’s see where this goes. Also, Prof. Berman at SL & P has a roundup of other death penalty news in the country.
REMINDER – Death Penalty Debate
Apr 19th
Just a reminder that the CBA’s death penalty debate is tomorrow at 7:00pm at UCONN Law. The debate is "between" John Connelly and Mike Fitzpatrick. More details in my previous post here. The YLS (Youth Law Section of the CBA) chair Daniel Schwartz will be interviewed tomorrow morning on WTIC 1080′s Ray & Diane at 9:35am. Tune in or check this blog or the CT Law Blog for further updates. Again, if you have any questions you’d like to ask any of the panelists, leave a comment here, e-mail me or e-mail the YLS directly. Remember, all questions have to be pre-submitted, so if you are planning on attending – send those questions in!
Inmates conscious after execution drugs administered
Apr 13th
On the topic of the death penalty, talkleft reports on a new study by the University of Miami Leonard M. Miller School of Medicine, which raises serious concerns that prisoners being executed likely are conscious after being administered the lethal drug cocktail that kills them.
Death Penalty Debate – UCONN LAW next wednesday
Apr 13th
Next Wednesday, April 20, 2005, The University of Connecticut Law School will be hosting a debate on the death penalty at 7:00pm in the Starr Reading Room (2nd Floor of Starr Building). The debate is presented by the Connecticut Bar Association Young Lawyers Section. The participants in the debate will be John Connelly, State’s Attorney for Waterbury (who has prosecuted 6 out of 8 CT death row inmates) and Michael Fitzpatrick, President of the Conn. Criminal Defense Lawyers Association. Channel 3 anchor Al Terzi is the moderator. The format is as follows:
- Each side will present an 8 minute opening statement (Fitzpatrick first, then Connelly).
- Pres-submitted questions – 3 minutes for a response and 90 seconds for a rebuttal.
- Closing statements – 8 minutes each.
If you are in the area, this is an event worth attending; I sure will make the trip there. If you want to submit questions to be asked of either one, please leave a comment to this post and I will pass it along, or e-mail me or e-mail the YLS directly. A flyer describing the full format can be downloaded here. See you there!
New bill to amend the death penalty
Apr 9th
The Judiciary Committee passed H.B. 6488 [bill text] yesterday in a 39-22 vote. The bill provides that the jury would be discharged if it can’t make a
unanimous decision during the penalty phase of a death penalty case.
The defendant would be automatically sentenced to life in prison
without chance of release.
The bill amends C.G.S. 53a-46a [Imposition of sentence for capital felony. Hearing. Special verdict. Mitigating and aggravating factors. Factors barring death sentence.]
The bill amends the burden of proof for proving mitigating and aggravating factors that lead to the imposition of the death penalty. The defendant has to prove mitigating factors by a preponderance of the evidence and the state has to prove aggravating factors beyond a reasonable doubt.
The bill also clarifies the standard for imposing the death penalty: The jury (or Judge) has to find "beyond a reasonable doubt that such one or more aggravating factors outweigh such one or more mitigating factors and that death is the appropriate punishment in the case."
The bill then adds three subsections to the statute:
(j) If the hearing is conducted before a jury and the jury is unable to unanimously return a special verdict as provided in subsection (e) of this section within a reasonable period of time, the court shall discharge the jury and impose a sentence of life imprisonment without the possibility of release.
(k) If the hearing is conducted before a jury, the court shall instruct the jury of the sentence that the court will impose pursuant to subsection (f), (g) or (j) of this section.
(l) At the conclusion of the presentation of evidence and prior to closing arguments, the court shall allow the defendant a reasonable opportunity to make a personal statement in his or her behalf to the jury or, if there is no jury, to the court without being sworn or subject to cross-examination.
This bill makes a valiant attempt at making the imposition of the death penalty very difficult. However, the different burdens of proof in the sentencing phase re: aggravating and mitigating factors is sure to meet with resistence. The bill has been referred to the House, so stay tuned.
Michael Ross hearings this week
Apr 4th
Can’t believe I missed this story in the Courant today. Michael Ross’ competency hearing is scheduled for Thursday and Friday this week and Judge Clifford has next Monday and Tuesday marked off for it.
For the first time, psychiatric experts will argue at length that the severely restrictive living conditions on death row have rendered Ross so desperate and depressed that he is mentally unstable and incapable of "volunteering" to be executed.
What he really is opting for, they will argue, is "state-assisted suicide."
According to his attorney, T. R. Paulding, Ross still hasn’t changed his mind.
"For him, it’s all unwanted," Paulding said of the numerous psychiatric interviews by four doctors, some of which spanned days. "It has been very stressful for him, but he’s holding up OK."
Paulding said Ross remains unwavering in his desire to proceed to his execution by lethal injection, now scheduled for May 11.
Norko has re-interviewed Ross and will return to report his findings. But three new psychiatrists have joined the case. Dr. Eric Goldsmith and Dr. Stuart Grassian, experts on death row syndrome, will testify during Groark’s presentation.
Paulding, who relied on Norko’s assessment the first time, has also hired psychiatrist Suzanne Gentile, of the Whiting Forensic Institute, to examine Ross. Gentile works in the competency restoration services division, and Paulding said part of her expertise is in the area of suicide.
Paulding said all the psychiatric interviews with Ross have been videotaped, but does not know whether those tapes will be entered into evidence or used only in the event a dispute arises over what was said. He expects the reports of all the doctors to be entered into evidence.
The hearings certainly will be contentious this week. Expect Ross to argue again vehemently that he is competent. Norko will also have to save face some, but let’s hope he puts that behind him to focus on the competency of Ross and doesn’t color his opinion with his reputation in mind.
Stay tuned. I will be updating as events happen. It is certainly going to be exciting.
Did you have a public defender or a lawyer?
Mar 31st
So says State Senator Newton, during a public hearing held on January 31, 2005 on the Anti-Death Penalty Bill. The question was posed to Lawrence Adams, a man from Massachusetts, who spent 32 years in prison (roughly 9 of them on death row) before he was exonerated and released. He came to CT to testify against the death penalty. The transcript reads as follows:
SEN. NEWTON: Thank you. I want to thank you for coming to Connecticut to give your testimony. When was it that they found the DNA, after how many years?
LAWRENCE ADAMS: It wasn’t DNA. It was exculpatory evidence. It took 31 years.
SEN. NEWTON: Thirty-one years?
LAWRENCE ADAMS: Yes.
SEN. NEWTON: Did you have a public defender?
LAWRENCE ADAMS: Excuse me?
SEN. NEWTON: Did you have a public defender or a lawyer?
LAWRENCE ADAMS: In the beginning, I had a public defender.
[CHAIRMAN OF THE JUD. COMMITTEE] SEN. MCDONALD: All right. Senator, I really don’t even know how to address that.
SEN. NEWTON: The point I’m trying to get at, and you all laugh, but this is very serious, is that in some cases, it’s been proven that those who can afford attorneys have a better chance. I’m not saying anything bad about public defenders, but in some incidents, you know, cases have been proven.
If you have a high-price lawyer, you stay out of jail. You know, that is the point I was trying to get to, not to disparage anything about our public defenders throughout this country. When you have your own lawyer, it seems that he might be able to collect that evidence, as you said. You know, that was the only point that I was making.
LAWRENCE ADAMS: It has been my experience, right, that I would say that I was unique in the fact that my lawyer, Mr. John Battarac, did work that I don’t think anybody else could have done. I was fortunate to that extent.
SEN. MCDONALD: Thank you very much. I should just note for the record that actually the Chief Public Defender’s Office has probably the greatest breadth of information in history on the defense of capital cases than any other group of attorneys in the state. Are there other questions? Senator Handley followed by Senator Cappiello.
Then the hearing continues.
Amazing, just amazing. Not like we don’t get crap from our clients anyway, now we have a state Senator who doesn’t acknowledge that public defenders are lawyers. Not once did the Senator make the distinction in terms of public defenders as opposed to private attorneys. He kept referring to private attorneys simply as "attorneys".
In any event, if you have time time, read as much of the transcript as you can – it’s pretty powerful, moving stuff.
Death Penalty bill fails
Mar 30th
The anti-death penalty bill, reported on here and here, has failed today in the House, falling by a vote of 89-60.
Proponents acknowledged the bill had no chance of passing but said they wanted to encourage debate. Representative Michael Lawlor, co-chairman of the judiciary committee, said today was an opportunity to think about whether the state wants to use the death penalty.But the possibility that death row inmates might be sentenced instead to life without parole angered some legislators. Among them was Representative Steven Mikutel of Griswold, whose district includes families of some of Ross’ victims. He says the death penalty is about standing up to evil. “It’s about standing up to evil,” Mikutel said. “We should treat the people on death row as enemies of the state. They should die.”
Sure it is.
Also, as expected, Vivian Dobson was present during the debate. Earlier in the day she had made a tearful appearance before television cameras.
“I’m so sorry to the parents because I lived and their babies died and I can’t change that, but I don’t want to be a part of killing somebody else. I really don’t and I don’t think we should either because that’s not what we’re here for. We are not killers, he is but we’re not,” says Dobson.
She said that to execute him would be too easy. It was better to let him suffer by keeping him alive.
“He cannot get off that easily, to put him to sleep? Just to give him a needle and put him to sleep? Do you think those girls went to sleep? Those girls didn’t go to sleep. He raped them, he embedded fear in their souls before they left this earth. What he did to me, I have to live with. I have to heal in some form or way but I would like to say to him that I don’t fear him anymore. He’s got to fear me because I’m going to stop, as much as is possible, and keep on fighting to get rid of this death penalty so he can live and think about and dwell on every little thing he’s done to those girls and what he’s done to me.”
This fight is just beginning. With Ross’ competency hearings scheduled for next month, expect this to escalate and I predict that there will be another bill introduced sooner rather than later.
Michael Ross victim to testify in House
Mar 30th
Yep, you read that correctly. Vivian Dobson, not very well known in the Michael Ross saga, will testify in the House during a hearing on the anti-death penalty bill. Why is Dobson not well known, you ask? Because she lived. She is the one Michael Ross victim who escaped alive.
But escaped isn’t the right word. Vivian Dobson may have gotten away from Michael Ross that May evening, but she has remained in his clutches since.
Ross beat and raped her before Dobson managed to run to her house and to a life of guilt, exile and silence. She was 21. For four years, Dobson didn’t leave her parents’ home; she barely left
her bedroom. Even the night her 2-year-old daughter wandered off, she
was paralyzed inside the house, listening to her father call out to the
little girl.
Now she is coming out to testify against the death penalty. Yes, you read that correctly too. She testified at Michael Ross’ trial at the behest of the families of the victims.
Do it for our daughters, the parents of the victims told her when she hesitated to testify against Ross in 1987. Do it for them. And she did, because she owed them, she says. And because back then, she thought that if Ross got the death penalty, he’d be dead in a week and her nightmares might end.
"Nobody told me any different," she said.
She doesn’t quite see it as redemption, though. When she expressed ambivalence at the death penalty, her doubts were quashed by her family. She instead sees constant pain for the past 20 years. She says that not only did Ross cause her pain back on the night she was attacked, but ever since then he has had a hold on her. She has lived in fear.
"This really has nothing to do with death," she says. "It has to do with control, with holding people’s lives in his hands. And as long as he stays on death row, he holds our lives in his hands.
"And this is the part that they can’t see. I see it because I’ve been living it for 22 years. I’m at the point now where I’m ready to take control of my own life."
For that reason, she will testify against the death penalty at the hearing today.
This is the one aspect of the death penalty debate that I see quite easily overlooked. While the moral arguments for and against the death penalty are plentiful, the real impact it has on the lives of the victim’s families over the pendancy of a capital case are quite moving and should be taken into consideration as well.
If Michael Ross was to be sentenced to life imprisonment, he would become another member of the inmate population that we so quickly forget. People could move on with their lives and not be reminded of it daily. Just punishment would be served. It seems, though, that this prolonged saga (prolonged for due process reasons – i would never advocate a speedy death penalty process) has a severe psychological impact on the lives of those left behind. I’m certainly glad that Ms. Dobson has decided to speak out, for whatever it is worth.
Anti-death penalty bill moves to House
Mar 29th
The CT anti-death penalty bill moved forward today, as the appropriations committee approved it 28-21, thereby moving it into the House for debate. The anti-death penalty bill, reported and analyzed here earlier, changes capital felonies to "murder with special circumstances" and makes the penalty life without possibility of parole. However, this bill is not expected to move further than the House, meeting with strong opposition there.
"For the first time, this is a real serious discussion," said Kim Harrison, a lobbyist for the Connecticut Conference of the United Church of Christ, a leading member of the anti-death penalty coalition. "This is something that could possibly, really happen."
Rep. Michael P. Lawlor, D-East Haven, co-chairman of the judiciary committee, said lawmakers on both sides of the issue believe in the importance of debating capital punishment before the Ross execution.
In a brief debate Monday, the appropriations committee discussed the dollars and cents of abolishing the death penalty, which the legislature’s Office of Fiscal Analysis estimates could save the state more than $1 million annually, primarily in legal costs.
Obviously, while costs play a role in the death penalty, the debate will center around more moralistic issues, such as vengeance, just punishment and final peace for victim’s families. Also edging their way in will be the prinicipals of forgiveness, the right of the state to take a life and evolving standards of morality in society. Stay tuned for more updates.
Thanks to Kirby’s Reports for the heads up.
Ross execution battle back in court
Mar 29th
A Hartford Superior Court judge heard
arguments yesterday dealing with the issues of parole and pardon reviews for those about to be put to death. In a suit brought by the Missionary Society of Connecticut, the religious group claims there are no rules concerning the commutation or setting aside of death sentences. Connecticut’s Attorney General claims there are rules and this group has no right to interfere.
"This group has no basis to be in court and has no legal foundation for claims that very simply seek to block or delay the execution when Michael Ross himself has waived the right that this group is seeking to claim on his behalf,"says Attorney General Richard Blumenthal.
"I suppose if a procedure were created that did not require testimony or input from victim’s family members then maybe he might have an interest, I don’t know," says Paulding.
For those who remember, the Missionary Society had brought a similar suit back in January, which was dismissed by the CT Supreme Court [pdf]. More on the Missionary Society’s suit and positions can be found here.
Ross’ competency hearings are scheduled to be held mid-April.
Ross rumblings
Mar 21st
With the execution date of May 11 approaching, Michael Ross news starts surfacing again. The Courant reports that Thomas Groark is preparing his case for challenging the competency of Michael Ross. One psychiatrist, Dr. Eric Goldsmith has met with Ross and Dr. Stuart Grassian is scheduled to meet with him. As April nears and the hearing takes place, there will be lots more news.
Anti-death penalty bill text
Mar 18th
On the House calendar for today is House Bill No. 6012 entitled "An Act Concerning Murder with Special Circumstances". This is the anti-death penalty legislation that received a 25-15 vote in the Judiciary Committee last week. The text of the bill is available here. The proposed bill itself is long and has many amendments, which I will explain briefly. The most important provisions of this bill are Sections 1 through 6. Section 1 provides
Notwithstanding any other provision of law including, but not limited to, subsections (t) and (u) of section 1-1, section 54-130a and section 54-194 of the general statutes, (1) the sentence of any person convicted of a capital felony and sentenced prior to the effective date of this section to a sentence of death in accordance with section 53a-46a of the general statutes in effect prior to the effective date of this section is commuted to a sentence of life imprisonment without the possibility of release, as defined in section 53a-35b of the general statutes, as amended by this act, on the effective date of this section, and (2) the punishment or penalty for any person who (A) is convicted prior to, on or after the effective date of this section of a capital felony committed prior to the effective date of this section, and (B) is sentenced or resentenced on or after the effective date of this section, shall be a sentence of life imprisonment without the possibility of release, as defined in section 53a-35b of the general statutes, as amended by this act, if such offense was committed on or after October 1, 1985, and a sentence of life imprisonment, as defined in section 53a-35b of the general statutes, as amended by this act, if such offense was committed prior to October 1, 1985. For the purposes of this section, "capital felony" means a violation of section 53a-54b of the general statutes in effect prior to the effective date of this section.
What this section essentially states is that all sentences of death, imposed before, on or after the effective date of this statute shall be changed to life imprisonment without the possibility of release.
Section 2 replaces the term capital felony with murder with special circumstances in CGS 53a-54b, which enumerates the crimes for which the death penalty is available. [Murder of a police officer and the like, murder during kidnapping, murder for hire, second murder by someone already convicted of murder, murder of two or more persons in the same act or same time, murder during sexual assault 1st and murder of someone under the age of 16].
Section 3 makes changes to CGS 53a-35a, which deals with terms of imprisonment and makes murder with special circumstances a Class A felony. It does not change general "murder", which is also a Class A felony with a term of 25-life.
Section 4 defines the term of imprisonment for someone convicted of murder with special circumstances.
Sec. 4. Section 53a-35b of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):
[A] For the purposes of this title and titles 51 and 54, (1) a sentence of [imprisonment for life shall mean] life imprisonment means a definite sentence of sixty years, [unless the] and (2) a sentence [is] of life imprisonment without the possibility of release, imposed pursuant to [subsection (g) of section 53a-46a, in which case the sentence shall be] subdivision (1) of section 53a-35a, as amended by this act, means imprisonment for the remainder of the defendant’s natural life without the possibility of parole, sentence reduction, temporary leave, furlough or any other kind of post-conviction conditional or absolute release.
The proposed legislation changes little except the term for felony murder and the penalty for such a crime.
This bill has 22 co-sponsors.
Please post your comments on this legislation below.
[Ed Note: The text in [] is deleted and the underlined text is added. Section 1 above is a brand new section to be added to the CGS.]
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