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That is the question raised in this article. Apparently, in 1992, Judge Chatigny (still in private practice) filed permission to appear as amicus in the Michael Ross appeal before the Supreme Court. Leave was granted, but no brief was filed.

Says Rep. Robert Ward (R - North Branford),

"I find it outrageous that a judge would participate in a case as an
impartial judge when he participated in a portion of that same case as
a litigant," Ward said. "It seems to me a clear ethical violation for a
judge not to disclose his prior involvement in a case."

"I can
understand a lawyer not remembering details of a case he was involved
in 10 or 12 years ago," said Ward, who has been a lawyer for 26 years.
"But there aren’t many Michael Ross cases. His name is on the petition
to the state Supreme Court. … He clearly had an agenda in this case."

Didn’t Justice Scalia refuse to recuse himself in cases that he, or his son, was previously involved in? I can’t remember the exact scenario - maybe someone can remind me.

Either way, I don’t see this as a conflict of interest. Judge Chatigny wasn’t a party to the appeal; he didn’t even file a brief. Maybe I’m wrong, feel free to correct me.

Just over an hour remains before the execution and the last appeal has been rejected. Soon, CT will have executed it’s first inmate in 45 years. He gets his wish. The state gets theirs. His victim’s families can have closure. The rest of us - we should start thinking.

9 and a 1/2 hours… and counting.

As you can tell by the title of this post, I might just be getting tired of all this Ross news. BUT. I’m still against the DP and I still don’t think he should be executed. BUT.

So, Antonio Ponvert and the State have agreed to file briefs by 10 p.m. tonight.

The lawsuit, filed on behalf of an
inmate in the state prison in Newtown, claims that Ross’ voluntary
execution will set off suicides among other prison inmates.

The
lawsuit was filed on behalf of a state prison inmate, Duane Ziemba of
Bridgeport, who has a history of mental problems and suicide attempts
and is imprisoned at the Garner Correctional center.

Semi-regular readers of this blog will recognize Garner - that’s where they keep inmates with mental issues. Plus, it’s a helluva long drive.

More on this latest lawsuit here and here.

The attorney for Ross’ sister has filed an appeal from the dismissal of the petition brought in Rockville Superior Court. Expect this (and perhaps other appeals) to move on to the Federal Courts soon.

Also, Abolish the Death Penalty has posted an article written by someone on the Ross case.

A quick review of the majority opinion in State v. Ross, authored by C. J. Sullivan, reveals the following:

There are essentially three claims addressed by the Court:

1. Jurisdiction - whether Groark had standing to appeal
2. Groark’s claim that Ross’ waiver is involuntary must be construed as a claim that Ross was incompetent because his volitional capacity was impaired.
3. The standard of review is "clearly erroneous" not "de novo".

Taking each one in order, the Court first decides that Groark does have standing to appeal (if it had decided otherwise, that is probably where they would have stopped). The Court finds that Groark is, in this limited setting, an aggrieved party and therefore has standing.

The Court then addresses the second issue

The state further contends that because the defendant was not subject to any external coercion in reaching his decision to waive further appeals, the voluntariness of his waiver, as that concept is typically understood in connection with claims that a waiver of a constitutional right was not voluntary, is not in issue. We agree with the state.

Citing Rees v. Peyton, 384 U.S. 312, the Court further explains,

the standard for competency in this context is whether the defendant ‘‘has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.’’

The Court makes the distinction between voluntariness and volitional capacity. Whether a waiver is voluntary depends on the surrounding circumstances and a showing of "governmental coercion is a necessary factual predicate for a finding of involuntariness".

There is no claim of governmental coercion in this case. Accordingly, special counsel’s claim that the defendant’s conduct was involuntary must be construed as a claim that the defendant was incompetent because his volitional capacity was  impaired. Because the question of whether the defendant’s mental illness impaired his volitional capacity, i.e., whether it substantially affected his ability to make a free choice among his options, is a question of competency, it is a question of fact, not of law.

Finally, the Court decides which standard to apply. It states that because the trial court’s competency finding was a finding of fact, the correct standard to apply is "clearly erroneous". Reviewing the testimony at the competency hearing, the Court accords deference to Judge Clifford’s findings and concludes,

Accordingly, we conclude that the trial court’s determination that the preponderance of the evidence established that the defendant’s mental disorder did not substantially affect his capacity to make and act on a rational decision so as to render him incompetent was supported by the evidence and was not clearly erroneous.

Since the standard they decided to apply wasn’t de novo, they didn’t have to review the transcripts and make their own independant determination. They simply said that based on a review of the transcripts and other documents, Judge Clifford’s ruling wasn’t obviously wrong. It isn’t a very high standard, but there it is.

More on the dissent to follow.

The Connecticut Supreme Court has released the opinions for the Michael Ross death penalty case.  Here are the promised links.  Analysis to follow.

   
• State v. Ross, SC17422, SC17423 (May 9, 2005)

   

• State v. Ross, SC17422, SC17423 (May 9, 2005) (concurrence)

   

• State v. Ross, SC17422, SC17423 (May 9, 2005) (concurrence and dissent)

WTNH reports that

The state Supreme Court says Michael Ross is competent to   decide to waive his appeals and accept his death sentence.

The state’s highest court issued its written opinion tonight, clearing
a major obstacle on the road to Friday’s scheduled execution.

in it’s story about the petition filed by Michael Ross’ sister saying that his decision to waive his habeas proceedings is not voluntary.

I was unable to find a copy of the Supreme Court’s decision online - hopefully it will be available later tonight or early tomorrow.

The Supreme Court is listening to oral arguments today in the Michael Ross appeal. Among other things, Atty. Groark is arguing that he should be permitted to proceed as special counsel in this case.

Like with the previous appeals, expect a decision soon.

You knew it was going to happen. You just didn’t know how soon. Well, today Thomas Groark filed an appeal directly with the Supreme Court. He also asked for a stay of the execution, which is currently just twelve days away.

In his filing Groark claims that Judge Clifford made several mistakes.  He says the New London judge:

• "erred in concluding that Michael Ross decision to waive his right to seek post-conviction relief was voluntary."    
• "erred in concluding that Michael Ross was not   suffering from a mental disease."

Groark also claims the judge is mistaken because he sided with the two
experts that claim Ross is competent instead of the two that Groark
brought to court who said he was not.

In other related news, seven prosecutors have filed a complaint against Judge Chatigny for his handling of the Michael Ross case. The complaint will be reviewed by Chief Circuit Judge John M. Walker, who can either dismiss the complaint or order an investigation. So wait, are we for activist judges or against?

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.

In unsurprising news, Judge Clifford has ruled that Michael Ross is competent and can forgo his appeals/habeas proceedings if he so chooses. I don’t expect this to be the end, but time is running out.

You can read the ruling here [pdf]. I will post an analysis of the ruling shortly.

Finally, it seems that the Ross hearing has neared it’s end. Today, Dr. Eric Goldsmith, the fourth and final psychiatrist testified. Dr. Goldsmith, an assistant professor at New York University Medical
Center, spent more than 60 hours interviewing Ross’ father and friends,
including his former fiancee, Susan Powers.

Goldsmith says Ross decided to die after he broke up with Powers, who provided him with emotional support and access to the outside world through a Web site she ran. Ross published letters to supporters on the site.

"It was very important for him in prison to feel he was affecting someone outside of prison," Goldsmith said.

Dr. Goldsmith testified that Ross has backed himself into a position where he cannot change his stance. It isn’t that far-fetched an opinion - he cannot appear to back down now after making his decision about sparing the families of the victims further pain. He is out on a limb and has to stay there until bailed out by someone else - perhaps Judge Clifford.

Now that she is back in his life, Goldsmith says Ross would like to take back his decision as he wrote in this letter but he cannot because his narcissism drives his desire to be seen as noble and not the monster he once was.

In this fifteen page report,  the New York City psychiatrist wrote "in his currently exacerbated personality disordered state his decision to forego further post conviction appeals is not voluntary.

Next, the deposed statement of Susan Powers, Ross’ ex-girlfriend, is expected to be read into the record. This hearing is expected to completely wrap up by Thursday with a decision with Judge Clifford soon thereafter.

My internet connection was non-operational last night, so I was unable to post the Michael Ross hearing, but a fellow Connecticut blogger has done a good job posting on it, so please read his posts here and here.

Briefly, though, yesterday Dr. Suzanne Gentile, a psychiatrist for the Whiting Forensic Institute and former employee of the CT and TX department of corrections testified on behalf of Ross that he is making a "knowing, intelligent and voluntary" decision to forgo his appeals. I put "knowing….voluntary" in quotes, because as those of you dealing with appeals and habeas know, that is the standard for determining whether a plea was valid, so they are certainly using the right keywords to describe Ross’ condition.

This article has excerpts from a videotaped interview of Ross that is now part of the evidence. Some choice quotes:

Ross: "It’s not about fairness and justice. It’s about politics. … If [Judge Patrick] Clifford said I was incompetent, people would drag him out and tar and feather him. Clifford’s not going to find incompetence."

Grassian: "You’re pretty determined to win."

Ross: "I’m competent."

Grassian: "I’m trying to find out what’s inside your head."

Ross: "Your report’s already written. You just have to fill in the blanks."

Grassian: "It’s difficult to get inside your head."

Ross: "You’ve got no business there."

Grassian: "In the end, you’ll thwart my effort to get inside your head."

Ross: "That’s your problem. … I’m presumed competent."

I’m not sure how this will play out with Judge Clifford who already appears frustrated with the volumes of reports and tapes that he has to review. Today, Dr. Eric Goldsmith will testify, giving his opinion of the competency of Michael Ross. At the end of today - expect it to be Ross 2, Groark 2.

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.]