Wednesday, February 02, 2005

Judge's Teleconference Has Experts Talking

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Chatigny's Chastising Of Ross' Attorney Draws Both Outrage And Applause In Legal Circles

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

(click) for pictures and links to go with this post

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."

The above came from the Hartford Courant website.

Fair use of copyrighted material

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My email to incoming Gov. Rell of Connecticut regarding Rowland and corruption

How can there not still be sleaze in the Connecticut Governor’s Office, if former Rowland aids are answering Rell’s phones? (post)

Can cops rape, rob, beat, and murder with immunity?
(post contains pictures of young adults brutalized by police, and picture of a 1978 Chevrolet Corvette and one of the houses I fixed up from a boarded up condition)

This blogger's email: stevengerickson@yahoo.com

1 Comments:

Blogger EmailHosting.com said...

That's an interesting article! Cool!

Wednesday, February 02, 2005 10:38:00 AM  

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