michael ross

The full text of the ruling is available here [pdf]. What follows is a summary of that opinion – bear with me, it’s long.

The Court starts off with a narration of the procedural posture of the case and then moves on to the analysis. First, the Court examines the burden of proof and concludes that no presumption of competency will apply.

The majority of the cases on the issue of the competency of a defendant to waive further appeals in a capital case seem to apply a presumption of competency by holding that a putative “next friend” has the burden of proving incompetency. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). Furthermore, a presumption of competency is recognized in the context of competency to stand trial. See, e.g., State v. Ouellette, 271 Conn. 740, 744 n.7, 859 A. 2d 907 (2004); State v. Wolff, 237 Conn. 633, 661, 678 A.2d 1369 (1996).

Nevertheless, the present “airing” of the competency issue was initiated not by a putative “next friend,” but by Ross himself through counsel. Accordingly, as the court indicated at the commencement of this hearing on April 7, 2005, no presumption of competency will apply in this matter.

The sole issue is whether Ross is, in fact, competent to make the decision to forgo further appeals. The Court applies the Rees v. Peyton standard in determining this competency. Therefore the threshold questions presented, as per the standard, are:

1) Is Michael Ross suffering from a mental disease, defect or disorder?

2) If Michael Ross is suffering from a mental disease, defect or disorder, does that disease, defect or disorder substantially affect his understanding of his legal position and the options available to him?

3) If Michael Ross is suffering from a mental disease, defect or disorder which does not substantially affect his understanding of his legal position and the options available to him, does that disease, defect or disorder, nevertheless, substantially affect Michael Ross’ ability to make a rational choice among his options?

The Court explains that Rees has been interpreted to mean "does the defendant have the capacity to understand the proceedings and does he, in fact, understand the proceedings".

The question is not whether a mental illness substantially affects a decision, but whether it substantially affects the prisoner’s capacity to appreciate his options and make a rational choice among them.

The Court then discusses the psychiatric testimony. It states that all four psychiatrists agree on the disorders that Ross is suffering from; the difference is how that affects his decision making ability. It is agreed that Ross suffers from the following disorders:

1) Sexual sadism: This is an Axis I disorder according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which is a consensus guide of mental disorders for psychiatrists nationwide. The defendant has been treated with Depo Lupron for this condition, and all the doctors appear to agree that it is presently in remission and is not in and of itself affecting his competency or the voluntariness of his decision.

2) Depression or mood disorder, not otherwise specified (NOS): This is also an Axis I disorder according to the DSM-IV. All the doctors seem to agree that this is in full or partial remission due to the defendant’s medication regimen.

3) Personality disorder, NOS, with narcissistic, borderline and antisocial traits or a full blown narcissistic personality disorder with borderline and antisocial traits: This is an Axis II disorder according to the DSM-IV. According to the experts’ testimony, opinions can differ as to whether one has enough of the traits listed in a disorder in the DSM-IV to qualify as an actual disorder. For example, Norko opined that Ross only had some narcissistic traits as part of a general personality disorder, while Gentile concluded that Ross had enough of those traits to qualify for a full blown narcissistic personality disorder diagnosis. There is no substantial difference.

4) Anxiety Disorder, NOS: Norko in his December, 2004 evaluation suggested that Ross may have been suffering from an anxiety disorder because it was the subject of clinical intervention when he was transferred to Osborn Correctional Institution in October, 2004. However, he also concluded that the anxiety symptoms had largely resolved and were in control with therapy and anti-anxiety medication. In February and March of 2005, Ross has been in sufficiently good spirits that his anti-anxiety medication was discontinued.

The Court then discusses the letters written by Ross to his friends and supporters, distrubuted as "Walking with Michael". Then the Court does something very interesting – it almost seems to dismiss the credibility of three "lay" witnesses: Dan Ross, Martha Elliot and Susan P.

Dan Ross, Martha Elliot and Susan P. all disagree with Ross’ stated motivations. Of course, all of these lay witnesses are opposed to the death penalty in general, are close friends or family of Ross, and do not personally support his decision to die. They do not present as unbiased witnesses to this court.

The Court then recites Dr. Norko’s "conclusions" about Ross’ possible motivations for forgoing his appeals, which the Court seems to adopt:

The primary motivations for forgoing any appeals and accepting the death penalty are 1) that it is morally the right thing to do, and 2) a desire to save the families of the victims the pain of going through another penalty hearing.

The secondary reasons, which Ross calls the “fringe benefits” of his decision, are 1) that he would avoid his own pain from hearing the evidence at another penalty hearing, 2) that he would end his confinement and not grow old in prison, and 3) accepting the inevitability of receiving the death penalty.

All of these factors come together in his decision and this multifaceted aspect of his decision demonstrates his ability to think rationally. He has weighed the pros and cons for years. He has questioned his decision, but has found no reasons to reverse it.

Importantly, the Court "does not find that he has absolutely no empathy for others as suggested by Grassian and Goldsmith."

Moving on to SHU or "Death Row Syndrome", the Court says that it "never materialized in this case". I wonder what Judge Clifford was looking at. According to Dr. Gentile, it is the inmates in segregation who appear "dead" that are the cause for most concern. Because Ross had the opportunity to go to the library and play with a "Game Boy", it didn’t affect him as much. That is nice to know that Ross has access to a game boy, but to me, it still doesn’t address the issue of the general and overall impact of constant solitary confinement on an individual. The Court concludes about SHU,

If anyone suffers from such an illness, it is not someone with the coping skills of Ross, who has utilized the strengths of his intellect to keep active and in touch with the outside world. Ross may not want to grow old in prison, but that is because of his quality of life due to the fact of confinement, not based on the conditions of confinement. This court finds that the conditions of confinement have not coerced or constricted Ross’ ability to think and make rational, logical, voluntary and volitional decisions.

The Court then concludes that it finds the testimony of Dr. Norko and Dr. Gentile more credible than that of Dr. Grassian and Dr. Goldsmith, basically saying that Dr. Norko has had the most contact with Ross and his opinion, after two evaluations, hasn’t changed and is most reliable. He writes off Ross’ depression and his wavering attitude toward wanting to die – as evidenced by statements made to others – as the same depression facing someone making a tough decision.

The rest is the conclusion – which you know well enough.

Dr. Stuart Grassian, the expert on death row syndrome, testified today at Michael Ross’ competency hearing. "He is like David Koresh", testified Dr. Grassian, "and the Columbine high school shooters. He has a narcissistic complex." I’m not quite sure that comparing Ross to someone like Koresh is going to win any brownie points, but that’s his evaluation.

Harvard psychiatrist Dr. Stewart Grassian not only disputes the state psychiatrist’s findings, he says Dr. Michael Norko’s decision that Michael Ross is competent flies in the face of an enormous amount of evidence.

Grassian says that during Norko’s videotaped interviews he simply accepts Ross’s claims that he wants to die to save his victims’ families further anguish without ever challenging him to explain why.

Dr. Grassian testified that in his interviews with Ross, Ross wouldn’t discuss the families of the victims or the conditions at Northern.

As Ross listened, Grassian repeatedly referred to Ross’s writings that say he "can’t stand it anymore" and "wants to end it all" as evidence he is really trying to commit suicide.

Grassian says Ross really wants to go down in a "blaze of glory" like a martyr because he thinks he’s not guilty because he knows he suffers several mental disorders.

On cross-examination Dr. Grassian was asked about other psychiatrists evaluations over the years. In response,

Grassian said Ross may have been competent in previous years, but that’s not relevant now. "Michael Ross is an actor, he puts on a show, what he’s saying has no relevance to what he truly feels."

Grassian said that during his four hour interview with Ross the serial killer showed utter contempt for him and just about everyone else. The interview was videotaped and submitted as evidence.

This is shaping up to be interesting. Stay tuned.

[Ed. Note: Posting during the day will be close to non-existent over the coming weeks - work is extremely busy. I will make up for it by doubling on the updates on the days legal news in the evenings, though. My apologies.]