racial disparity
CT’s top death prosecutor in federal probe
Aug 10th
I stumbled across this brief news item today, which could have monumental consequences for the death penalty in Connecticut, among other criminal justice issues. Waterbury’s chief prosecutor and former Commissioner of Public Safety John Connelly is apparently the subject of a Federal grand jury investigation, with allegations of improper consideration of his good friend, defense attorney Marty Minella’s clients, in exchange for gifts and vacations, swirling around the courthouse.
Connelly is known by most in the State as the prosecutor who put most of CT’s death row inmates on the row. The proportion of death row inmates from his jurisdiction have prompted valid calls for an examination of the application of the death penalty in Connecticut and allegations of racial and geographical disparity in sentencings and death penalty prosecutions. Connelly has a reputation for being a ruthlessly efficient prosecutor, who makes juries melt in his hands, and up to now, has been beyond reproach.
One can only begin to ponder the implications on the future of the death penalty and the criminal justice system as a whole if this story has any legs, if the federal probe turns into an indictment and a prosecution.
According to several sources who asked not to be identified, the feds are looking into whether Connelly’s ties with Atty. Martin Minnella have grown improperly close, and whether prosecutorial behavior in certain court cases can be connected – directly or indirectly – to gifts, vacations and other emoluments. The sources say federal investigators have seized records from both Minnella and Connelly, and that the list of potential witnesses is growing. Tom Carson, a spokesman at the U.S. Attorney’s Office in New Haven, said only, “We can neither confirm nor deny the existence of a grand jury investigation.”
Connelly has been on the job in Waterbury since the 1980s. Over 25 years, he has developed a reputation as a take-no-prisoners prosecutor who has, among other things, sought, and won, the death penalty in several big cases.
By last count, there were 6 inmates sent to death row by Connelly, of which two had their death sentences reversed. There are currently 9 on death row, excluding those two.
[It's really important for me to state this here: this is based on "anonymous sources" and it is about the very, very secretive federal grand jury. The extent of the investigation may be different, its focus may be different. But I've now heard this from several sources (yes, I have sources), who have other "anonymous sources", so it's pretty clear there's something going on, we just don't know exactly what.]
One man’s regret is another man’s disparity
Aug 2nd
Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.
Justice Powell, writing for the majority in McCleskey v. Kemp.
["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.
Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.
Wishful Wednesday
Mar 9th
In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.
So here we go again.
Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:
S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.
H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.
H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.
The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:
First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:
(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?
The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.
The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.
The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.
But wait, it gets better. And how:
MLK Day
Jan 19th
MLK Day doesn’t just mean another day off (although that is nice too). If you do nothing else, make sure you read Scott’s post on the fight that remains to be fought.
You’ll find a video of Dr. King’s speeches elsewhere in the blogosphere, so I’m gonna give you a video instead. Taken from last year’s BR:
[youtube]http://www.youtube.com/watch?v=D7COntXhPcI[/youtube]
Maryland commission recommends abolition of death penalty
Dec 12th
I seem to have a knack for these things. I post about something and the next day there’s some news on that subject (or it could just be coincidence – take your pick). After yesterday’s post on the death penalty, I was but a little surprised to see two interesting news items today. The first is this very thorough and deeply interesting report [pdf] from the Maryland Commission on Capital Punishment. A legislatively created body, the Commission was charged in 2008, with evaluating the racial, socio-economic, geographic and other influences on the death penalty and to make a recommendation as to its continued viability.
In a 13-9 vote, the Commission today recommended abolition of the death penalty in Maryland. In preparing this report:
A few thoughts on the death penalty
Dec 12th
Several occurances in the last week have got me thinking about the death penalty. Miguel Roman should be the new posterchild for abolishing the death penalty. Yes, he wasn’t on death row, but here is a man who spent 20 years in prison for a crime he didn’t commit.
Consider the rush to execution that the pro-death penalty crowd loves to push. Imagine if that was actually the case and Roman was on death row. He’d be dead right now. If my calculations are correct, were Roman on death row, he’d be the longest serving member of that club. And people complain about the length of time the other death row members’ appeals and habeas corpus petitions have taken. Many would have killed them already.
The arbitrariness of the death penalty is also something to ponder.
Disparity challenge to death penalty survives motion to dismiss (updated)
Feb 28th
Update: Here‘s a copy
CT death row inmates’ racial and geographical disparity challenge to the death penalty survived a motion to dismiss. The challenge was made under provisions of both the Connecticut and Federal Constitutions. That might be what saved it (among other things).
In his decision, Judge Stanley T. Fuger Jr. said Connecticut’s constitution affords defendants greater legal rights than the U.S. Constitution, so, therefore, they have the right to present the kind of systemwide bias evidence that the 1987 ruling barred.
“Connecticut is not closing its eyes to this claim as most state courts have done,” said David Baldus, a professor at the University of Iowa College of Law who has studied bias in the death penalty in four states and in the city of Philadelphia. “So that’s why this is an unusual case. Unusual and important.”
This is a serious issue and perhaps it wouldn’t have been the wisest thing to dismiss the claims, as Judge Fuger recognizes:
“In the instant case, the petitioners allege that they are to be deprived of their lives in a proceeding that has been tainted by the imposition of improper racial determinations,” Fuger wrote in his decision. “The stakes are, therefore, extraordinarily high for these petitioners and merit the closest of scrutiny before throwing the complaint out of court without any opportunity to provide the validity of the claims.”
Racial disparity hearing concludes; some stats available
Dec 14th
In the midst of a massive snowstorm yesterday, the unusually situated DP hearing concluded yesterday at Northern CI – the State’s only maximum security prison where death row is housed. The arguments were pretty standard: the State moved to dismiss arguing that these habeas petitions have languished for a while, whining abuse of process. The defense countered with “these are death cases, studies take time”.
Much was made of the location of the hearing, but it used to be the norm back in the day. What interests me and I’m sure will interest some of my readers is this graphic in the Courant, which seems to have all the relevant data (if they would only please upload a real copy of the study and not the bizarre hacked 7-page version).
So, as you can see, black and white defendants are charged with a capital felony about the same, but when it comes to a white victim, there is a significant disparity (about 21%). When there is a white victim, as opposed to a black victim, the death penalty is sought 19% more.
SL & P links us to this NYT article which can’t even correctly report how many people CT has executed in the last 30 years. It says none, Michael Ross says hello.
The bottom line: Will Judge Fuger grant this Motion to Dismiss? I d0ubt it, but I wouldn’t be surprised.
Death penalty Constitutionality arguments end; ruling awaited
Jul 20th
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
Jul 5th
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:
Two more prosecutors testify in dp discretion trial
Apr 15th
Somehow I missed the coverage of Thursday’s hearing in the death penalty discretion trial. Two more prosecutors testified.
Tolland County State’s Attorney Matthew Gedansky and Danbury State’s Attorney Stephen J. Sedensky were subpoenaed by lawyers for convicted murderer Jessie Campbell III.Gedansky said he would seek the death penalty if the facts of the case met the state statute. And, he testified, he also would consider input from the victim or victims’ families, the defense, and the strength and circumstances of aggravating and mitigating factors.
Sedensky offered similar testimony, telling Mullarkey that the state statutes are the guidelines.
By my count, that makes 11 out of the 12 prosecutors testifying that they have discretion in applying the death penalty. The only one who categorically stated that he had no discretion was Waterbury State’s Attorney John Connelly.
Previous posts (older to newer):
- State prosecutors have to testify at death penalty hearing.
- Death penalty constitutionality hearing under way.
- Death penalty constitutionality hearing continues.
Technorati Tags: connecticut, death penalty
Death penalty constitutionality hearings continue
Mar 26th
Missed in my migration this weekend was Friday’s testimony in the death penalty constitutionality hearing. Waterbury State’s Attorney Connelly testified about his hands-on approach in deciding whether to pursue the death penalty. Waterbury has prosecuted five of the seven current death row inmates.
While Connelly described, step-by-step, his decision-making process, other prosecutors said they simply followed the guidelines established in the Connecticut General Statutes.The question of a prosecutor’s discretion appeared pivotal.
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.”
In describing his approach, Connelly said, “If I only felt I could find probable cause I would not charge. I’d have to be convinced of a conviction. If I felt I could sustain a conviction for a capital felony I would charge.”
The hearings resume on April 12.
Previous coverage:
- Death penalty constitutionality hearing under way.
- State prosecutors have to testify at death penalty hearing.
Technorati Tags: connecticut, death penalty
Death Penalty Constitutionality hearing under way
Feb 24th
A hearing on the Constitutionality of the state’s death penalty is underway as five top prosecutors testified last week. Attorneys for accused Jesse Campbell III, who faces the death penalty, are claiming that the death penalty is unconstitutional because it is applied in an “arbitrary and capricious” manner throughout the state.
Prosecutors testified that they follow the law and the prosecutor’s code of ethics when deciding whether to pursue the death penalty. However, they also testified that there was no written standard or guideline regarding the matter.
Kevin Kane, the state’s top law enforcement officer, testified first, followed by state’s attorneys from the Windham, Middlesex, New Britain and Ansonia/Milford judicial districts.Kane gave the most detailed answers. He said in his current position, as supervisor of all state’s attorneys in Connecticut, and during his more than a decade as New London state’s attorney, he used an “operating assumption” that if assistants in his office planned to charge a defendant with capital felony, they would discuss the matter with him first.
“Because of the nature of the case, I expect the assistants to talk to me. I expect assistants to have common sense in cases that would have a significant relevance or impact,” Kane said.
Several other prosecutors are expected to testify when the hearing resumes on March 23. Stay tuned.
Previous coverage of this hearing:
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.
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