In the 80's Michael Ross raped and killed 8 women. He was sentenced to death and now wants to waive his appeals and has "volunteered" to be executed.In an interview aired on 60 Minutes II last night, he articulately expressed how he felt that his execution would be justice and hopefully bring closure to the families of his victims. He had previously fired the Connecticut Public Defender's Office and has retained private counsel to assist in facilitating his execution. He has been found competent by several courts. His attorney is also convinced that his client is competent to waive his appeals. Nonetheless, the Connecticut Public Defender's Office persuaded a federal judge and federal appeals court this week to stay the execution. This, evidently because Connecticut has not had an execution in over 40 years and they don't want to start an "unhealthy" precedent. Might this qualify as the most ridiculous expenditure of taxpayer and judicial resources in this new year? More details below from the Hartford Courant:

As Clock Ticks, Ross' Fate Unclear
Courts To Rule On Last-Minute Legal Maneuvers; Scheduled Execution Less Than 24 Hours Away

January 27, 2005
By LYNNE TUOHY, Courant Staff Writer

Twenty-four hours from now serial killer Michael Ross will be dead.

Or not.

That is how unsettled the legal landscape remained this morning, with the execution scheduled for 2 a.m. Friday.

The U.S. Supreme Court has indicated it will rule today on whether the stay of the execution issued Tuesday by a Hartford federal judge and upheld Wednesday by a federal appeals court will stand.

Adding to the uncertainty is a second order issued Wednesday by that same judge, Chief U.S. District Judge Robert N. Chatigny, halting the execution.

Chatigny issued a temporary restraining order in a civil rights challenge brought by Ross' father, Dan Ross, who claims he will be denied his constitutional right to associate with his son if Michael Ross is executed before the issue of whether he is truly "volunteering" to be executed is resolved.

Michael Ross, 45, has opted to forgo appeals still open to him and be executed. He is represented by private counsel, T.R. Paulding, and has been found mentally competent to make that decision by an array of judges, state and federal, since legal efforts to halt the execution began Dec. 1.

Attorney General Richard Blumenthal said he will go to the U.S. 2nd Circuit Court of Appeals in Manhattan today to ask for an emergency ruling dissolving the temporary restraining order. There are several ways in which the legal challenges could play out:

The justices of the U.S. Supreme Court could vacate Chatigny's stay of the execution. This would heighten the importance of the temporary restraining order as the last bar to the execution going forward Friday at 2 a.m.

The justices could uphold the stay of execution, rendering the temporary restraining order superfluous.

If the temporary restraining order becomes the only bar to the execution and is upheld by the 2nd Circuit, it is unlikely - but not impossible - that the state could seek and obtain a Supreme Court order vacating it before the scheduled execution.

If the U.S. Supreme Court vacates the stay and the 2nd Circuit dissolves the temporary restraining order, Dan Ross' lawyers would have to seek an emergency stay from the U.S. Supreme Court, which would already have expressed its opinion that the execution should go forward.

Department of Correction spokesman Brian Garnett said correction officials will reassess at noon today whether to postpone the execution.

Chief Public Defender Gerard Smyth said Wednesday night it is "highly unlikely" the execution will go forward Friday. The public defenders, working with the private law firm of Santos & Seeley, secured the stay Tuesday, after convincing Chatigny that the state never took into consideration whether Ross' preference to be executed stems from his nearly 20 years in a high-security setting.

Attorney Antonio Ponvert, who represents Dan Ross, said the chances of the execution going forward as scheduled are "virtually non-existent."

"There's a chance," Ponvert acknowledged. "I think it's a very slim chance."

Chatigny issued the temporary restraining order after a 50-minute teleconference with Ponvert, co-counsel Jim Nugent and six assistant attorneys general.

Ponvert's claims are layered. He said Dan Ross has a constitutionally protected interest in his relationship with his son.

"The government cannot interfere in that relationship without due process," Ponvert said. "What's different between an ordinary execution and Michael Ross' is that, in this case, there are real questions about Michael's competence and real questions about his ability to make a rational choice."

Nugent said he does not expect that the competency hearing they seek will be rolled into the competency hearing that Chatigny began Tuesday.

"We're looking for our own full hearing to determine whether the state has coerced Michael Ross into giving up his appeals," Nugent said. "We're not riding anyone's coattails, and no one's riding on ours."

Dan Ross' federal lawsuit names five defendants: Gov. M. Jodi Rell, Correction Commissioner Theresa Lantz, Osborn Correctional Institution Warden David Strange, Chief State's Attorney Christopher Morano and Blumenthal.

Paulding said he and Michael Ross were totally unaware of Dan Ross' lawsuit, which Ponvert said he filed Tuesday.

"At this point, it's just kind of adding insult to injury," Paulding said. "Everything has just become totally uncertain."

Paulding telephoned Ross Wednesday night to tell him about the lawsuit. Asked how Ross reacted, Paulding said, "I've run out of adjectives - frustrated, angry, upset - that's the whole gamut of emotions going on right now."

Blumenthal said he believes that Dan Ross' federal lawsuit and the temporary restraining order emanating from it are "unfounded, factually and legally. ... We believe this TRO should be dissolved."

When asked if the state - officials and citizens alike - should be in a state of such uncertainty within 24 hours of its first execution in nearly 45 years, Blumenthal paused.

"There are very unique circumstances and issues that have been raised and have to be addressed," he said. "There may be some lessons in this experience that will be drawn at the appropriate time." He would not elaborate.

In the brief filed by state prosecutors, Senior Assistant State's Attorney Harry Weller argued that Chatigny, in issuing the stay - and the 2nd Circuit, in upholding it - failed to respect the "required presumption of correctness of state court factual findings." Weller noted that the controlling U.S. Supreme Court case held that "competence was an issue of fact and that the state court findings were to be presumed correct."

Attorney Hubert Santos, in the public defenders' brief, countered that the state is misconstruing the case law. He also stressed that Chatigny's hearing on competence is necessary to make the determination of whether the public defenders should be allowed to intervene on Ross' behalf, and that Chatigny had not made a final determination of either. The 2nd Circuit said it would be premature to vacate the stay, because Chatigny has not had an opportunity to create an adequate record for review.

There is another Ross-related petition pending before the U.S. Supreme Court as well.

The Missionary Society of Connecticut, a division of the United Church of Christ, asked the high court for an emergency stay of the execution pending its filing of a writ that asked the court to review the state Supreme Court's dismissal of its challenge to the execution.

The society had petitioned the Board of Pardons and Paroles for a commutation hearing in the Ross case, based on its longstanding opposition to the death penalty. Board Chairman Gregory Everett denied it, saying the board would grant hearings only at the request of the condemned convict or his lawyer.

The society appealed, claiming constitutional due process violations because the board has no written policies governing petitions and hearings to commute a death sentence to life in prison.

"It is fundamentally unfair for the board to claim that the Missionary Society is not an appropriate party to request a commutation hearing in the face of the board's dereliction of its clear duty to specify who is an appropriate party," attorney James Wade wrote.

While Texas executed 339, appeals foiled Connecticut

(Norwich Bulletin, January 27, 2005)

Troy Albert Kunkle, 38, was executed by lethal injection in Texas at 8:12 p.m. Tuesday, 6 hours before Michael Ross, 45, had been scheduled for a lethal injection.

Tuesday afternoon, the U.S. Supreme Court voted 5-4 to reject a last-minute appeal on Kunkle's behalf. At about the same time, Ross' execution was delayed indefinitely pending a challenge to the same high court.

Kunkle, who killed a man during a robbery, was the 339th inmate executed in Texas since the reinstatement of the death penalty in 1974. It was the state's 2nd execution this year.

Connecticut reinstated its death penalty law Oct. 1, 1973 -- 3 months before Texas. But the state's last execution was 45 years ago.

So why does it appear easier to execute a robber in Texas than a serial killer in Connecticut?

"We're not Texas," said Todd Fernow, UConn professor of law and director of its Criminal Law Clinic. "It sounds facetious, but there's a grain of truth to that."

The mere size of Texas -- population 20.8 million, the second largest in the nation, compared to Connecticut's 3.4 million, ranked 29th -- contributes heavily to the belief that executions are "easier" there than here, said Fernow. The larger population base, more defendants and more courts hearing cases, create a larger "opportunity" for death sentences to be handed down.

Texas has sentenced 568 defendants to death from 1987 through 2003, compared to 9 in Connecticut over the same period. Texas re-instated the death penalty Jan. 1, 1974. Its first execution under the law was in 1982.

Fernow said Texas streamlined its execution process over years to the point where appeals move more quickly. In Ross' case, it has taken 17 years of legal wrangling to get to the Supreme Court, where appeals are often exhausted.

The U.S. 5th District Circuit Court of Appeals, which handles Texas cases, has handled significantly more death penalty cases, allowing for decisions to be rendered more quickly, based on past decisions, Fernow said. The 2nd District Circuit Court of Appeals, which handles New York and New England cases, hasn't.

"Basically, we haven't gone through the trial and error like Texas has," Fernow said.

According to the Texas Department of Criminal Justice, the average time an inmate spends on death row is 10.4 years. But according to its list of death-row inmates, 134 of the 446 on death row today have been there longer than that.

Kunkle, the inmate executed Tuesday, had been on death row for 20 years, and twice avoided execution last year with last-minute stays.

"Each state has its own death penalty law, and the way it's drafted will have an impact on how many avenues of appeal are available," said UConn law professor Paul Schiff Berman, who worked as a law clerk for Supreme Court Justice Ruth Bader Ginsberg from 1997-98.

In 1987, the year Michael Ross was 2st sentenced to die, Texas sentenced 36 to death. Nine of them are still on death row. 33 others have been there longer. Walter Bell Jr., 52, is the senior member of the death row fraternity. He was sentenced to death May 20, 1975.

Connecticut provides juries with an alternative to death -- life imprisonment with no chance of parole -- that Texas does not offer.

On Monday, the Connecticut General Assembly's Judiciary Committee will host a public hearing on a proposed bill to abolish the death penalty. Committee Chairman state Rep. Michael Lawlor, D-East Haven, who opposes the death penalty, wants to commute death sentences to life in prison with no possibility of parole.

"It's a fraud," Lawlor said of the death penalty law. "It misleads victims into believing something is going to be done, and nothing does."

Fernow and Berman, the law professors, agree the legal process in the Ross case has moved along precisely as the law intended it. Fernow added that Ross' decision to forego further appeals may have interfered with the orderly progression.

"The question is, 'What if we had a death penalty law that was easy to impose?'" Fernow said. "Even people who support the death penalty cringe at that idea. If you're going to have a death penalty, you can't make it easy and efficient without it becoming an abomination. The checks and balances we have are about right."

TEXAS VS. CONNECTICUT

Texas leads the nationin the number of executions since the death penalty was reinstated. Texas revised its death penalty law effective Jan. 1, 1974, and has put to death 338 prisoners since. Connecticut revised its death penalty law effective Oct. 1, 1973. No one in Connecticut has been executed since.

--

Here is a look at the differences in the states:

Population: Texas -- 20.8 million, 2nd largest. Connecticut -- 3.4 million, 29th.

Sentenced to death (1987-2003): Texas -- 568. Connecticut -- 9.

Current death row population: Texas -- 446. Connecticut -- 8.

Average time on death row: Texas -- 10.4 years. Connecticut -- undetermined.

Last execution: Texas -- Tuesday. Connecticut -- 1960.

Alternative of life in prison with no parole:Texas -- no. Connecticut -- yes.

From an article on CNN law pages:

"But Ross' fate is now in question after his lawyer filed papers requesting a hearing to examine whether Ross suffers from what some experts call 'death row syndrome' -- that is, he has become unhinged from being on death row and is no longer mentally competent to decide his fate."

Maybe I've been reading the law wrong--I was unaware a death row convict had the right to "decide his own fate."

Are they afraid the floodgates will open if they kill this %#@&*? What's the over/under on death row population in Connecticut - four?

What is death row syndrome?

Another stellar advance in logic from our friends in Europe. I for one am shaken by the shocking revelation that death row is unpleasant!

These excuses are all consistent with a plan of attack adopted by death penalty abolishonists several years ago. They found they were making no progress by openly being against the death penalty. So, they all decided to be for the death penalty, but only if it was done RIGHT.

And, of course, right means NEVER.

The following story summarizes what I find most troubling about the Connecticut situation. And on a related note, this whole mess appears to confirm what John said above -- pretending that the death penalty is OK and then perpetually delaying execution for one red herring reason or another seems to be the most effective anti-death-penalty strategy. You wouldn't believe how many times defense attorneys plead, "Why can't we just agree to a stay so that the current appeal can be resolved?" Because you'll just file three more, that's why!

Judge's Teleconference Has Experts Talking
Chatigny's Chastising Of Ross' Attorney Draws Both Outrage And Applause In Legal Circles

February 2, 2005
By EDMUND H. MAHONY, Courant Staff Writer

Chief U.S. District Judge Robert N. Chatigny's intercession against the execution of Michael Ross last week is creating a stir in national legal circles, with experts divided on whether it was an extraordinary but justifiable judicial intervention or outrageous meddling by a powerful judge driven by a personal bias.

The judge's harangue of Ross' lawyer, T.R. Paulding, delivered during a teleconference Friday, is widely viewed as having resulted in the postponement of the serial killer's execution. In impassioned and sometimes intemperate terms, the judge assailed Paulding's representation of Ross, who had elected to forgo appeals of his death sentence, ostensibly to spare victims' families further anguish. Chatigny told Paulding, "I'll have your law license," if it was later found that Ross' mental condition had been impaired by his years on death row.

"It is outrageous," said Robert Blecker, who has done extensive research on death row conditions and is on the criminal law faculty at New York Law School. "[Chatigny] should remove himself or be removed from the case. I think he has lost any pretense of neutrality."

But Geoffrey Hazard, who specializes in legal ethics and procedure and is on the faculties of the Universities of Pennsylvania and California, was equally adamant in defending the substance, if not the language, of what was essentially a one-sided conversation in which Chatigny lectured Paulding.

"The bottom line is it is a very extraordinary intervention by the judge in a very extraordinary situation," Hazard said. "Put aside the language in which he expressed it and it was a proper exercise of judicial authority."

Chatigny initiated the call, in which he, Paulding and seven other lawyers joined, at 3 p.m. Friday - 11 hours and one minute before Ross was scheduled to be executed by lethal injection. During the 55-minute call, Chatigny alternately lectured and grilled Paulding, clearly displaying the belief that Paulding had not been sufficiently vigorous in investigating Ross' competence to waive further rights of appeal.

"When I was in practice as a litigator, my investigation - I don't mean to pat myself on the back - but my investigation in a typical run-of-the-mill injury case would be more comprehensive than your investigation of this," Chatigny told Paulding.

One aspect of the teleconference on which lawyers agree is that Paulding was in an unusual position in his representation of Ross. He is an opponent of capital punishment who had agreed to advocate on behalf of a confessed murderer who wanted to be executed. In the relatively brief remarks he was permitted to make during the teleconference, Paulding said he believed Ross had the mental competence to decide to allow his life to be ended.

Chatigny's concern, expressed repeatedly, was that Paulding didn't do enough to confirm his personal belief through independent psychiatric review. And lawyers involved in the matter said Chatigny was concerned that courts that had made prior rulings had not been fully informed of suggestions that Ross' faculties could have become impaired by a phenomenon called death row syndrome.

Those who say the syndrome exists contend that the close confinement of death row can cause inmates to lose the will to fight for their lives. The theory has been embraced in Europe by lawyers fighting extradition of murder suspects to U.S. states that have the death penalty. The theory has yet to be tested by the U.S. Supreme Court, but as a result of his role as a judge in an unrelated capital case, Chatigny said during the teleconference, he had undertaken a significant amount of research on the syndrome.

In the days before the teleconference, lawyers seeking to block Ross' execution provided Chatigny with several pieces of evidence suggesting Ross' competence had been clouded by years on death row. During the teleconference, one defense lawyer informed Chatigny of an affidavit supporting claims of the syndrome. A portion of the evidence presented to Chatigny about death row syndrome in Ross' case was so new it had not been presented before courts that had previously affirmed Ross' competency.

Stephen Duke, a death penalty opponent who teaches federal criminal law at Yale Law School, said Chatigny was properly concerned that Paulding was attesting to Ross' competency without enough corroboration from psychiatric experts.

"I have trouble separating my bias out of this thing," Duke said. "But personally I think [Chatigny] is right on. I don't know anything about this judge, but I like what he says. The position that this lawyer is in is certainly unique. Generally speaking, lawyers who represent clients have obligations to fully investigate the facts before they do anything. And they are guilty of incompetence if they don't. Basically what I think this judge is telling this lawyer is that, `You're mouthing off. You're saying things and you haven't investigated the facts. And that's unprofessional.'

"Even if [Ross] was competent two years ago, does that mean he is competent today?" Duke added. "That is the uniqueness of the death penalty situation. Any new evidence could be just enough. I mean his mental state is an ongoing thing that could change overnight. And, apparently, there is some evidence that has never been considered before."

John H. Blume, director of the Cornell University Law School death penalty project, agreed with Chatigny's questioning of Paulding, but suggested the tone opened him to criticism.

"Would I have said everything exactly like the judge said?" Blume said. "Probably not. But on the other hand I think the judge himself felt he had some moral responsibility as the fact finder that there wasn't some kind of miscarriage of justice. I think his motivation was in making sure that they didn't go ahead with the execution and the next day it comes out that Ross had everybody fooled. He was really crazy as a loon and had been coached on what to say to get through this thing. I guess the feeling was that you don't want to have egg on your face in a situation where the egg can't be wiped off."

Those who endorse Chatigny's comments during the teleconference tend to oppose capital punishment. Blecker, who teaches constitutional history and a death penalty course at New York Law School, supports capital punishment and is one of those who are sharply critical of Chatigny's remarks.

"That the judge would threaten to take away [Paulding's] law license, so clearly coercing him into a course of conduct that the judge is convinced is morally right, is in itself unprofessional, intemperate, beyond the bounds of responsible judicial action," Blecker said.

Blecker said Paulding was browbeaten for taking positions contrary to Chatigny's beliefs - in particular that Ross' competence could be impaired by death row syndrome or by the disorder of sexual sadism. Blecker's research shows that incarceration on death row is in some aspects less confining than incarceration in the general prison population. And he argues that sexual sadism "is a description of evil which warrants death in this case, rather than sickness which warrants mercy."

"What mistake would we be making by executing him on the misapprehension that he is doing it to spare the victims' families when in fact he is selfishly doing it to spare himself any more time on death row?" Blecker said. "We would have executed an eight-time murderer and a seven-time rapist who unquestionably deserves to die. We would have made the mistake of executing him not because he wanted to spare the pain of his victims but because he wanted to spare more of his own pain. It would have been an alternative moral justification. He should be executed regardless of why he is making the move.

"The judge crossed the line," Blecker said. "I think he ceased to look and act like the court, much less an officer of the court, and descended to the role of advocate."

Critics of Chatigny, 53, who has a lifetime appointment, said lawyers working in court to have Ross executed could ask the judge to remove himself from further involvement in the case, arguing that his remarks showed a bias against capital punishment. It is not unusual for lawyers to ask judges to remove themselves from cases.

Many Connecticut lawyers are critical of Chatigny's remarks, but few would speak publicly for fear of antagonizing a judge or alienating clients who may agree with the judge.

However, Chief State's Attorney Christopher Morano suggested, in rather circumspect terms, that he disagrees with Chatigny's assertion that Ross should not have been sentenced to death because he is a sexual sadist.

"I am extremely troubled by the comments," Morano said. "However, at this point, I'm focusing my attention on Michael Ross and the pleadings we have to respond to. We'll save that for another day."

Connecticut Attorney General Richard Blumenthal said he was disturbed by Chatigny's remarks, but he also refused to elaborate.

"I join the chief state's attorney in having grave reservations about that teleconference," Blumenthal said. "But the appropriate place to comment on what a judge of the United States District Court says or does is in the courtroom. And we will comment on that teleconference at the appropriate time and in the right courtroom."

Did anyone think he would live long enough to hear a judge say that a defendant who raped and killed eight women (that we know of) should not be executed because he is a "sexual sadist?" More sign that the second coming is imminent.