Thursday, April 28, 2005

The Death Penalty Debate

Judge Robert Chatigny
(Conn. Law Tribune)
Posted by Hello

Prosecutors Challenge Judge's Calls
Seven File Complaints Over Ross Intervention
April 28, 2005 By LYNNE TUOHY, Hartford Courant Staff Writer

Seven state prosecutors have filed complaints against Chief U.S. District Judge Robert N. Chatigny, the person primarily responsible for derailing serial killer Michael Ross' Jan. 29 execution.

The complaints, filed with the clerk of the U.S. 2nd Circuit Court of Appeals in Manhattan, remain sealed. They may never be made public if they are dismissed by Chief Circuit Judge John M. Walker Jr.

Senior Assistant State's Attorney Harry Weller confirmed that he and six other prosecutors filed complaints last month, targeting two teleconferences Chatigny held in late January with various defense lawyers, prosecutors and assistant attorneys general on motions before him to halt the execution.

Weller would not elaborate on the complaints, citing the confidentiality that surrounds them in the 2nd Circuit.

During a nearly hour-long call the afternoon of Jan. 28 - less than 12 hours before Ross was scheduled to be executed - Chatigny berated T.R. Paulding, Ross' lawyer, for advocating his client's desire to proceed with the execution.

"We're not in this profession to help people get killed," Chatigny told Paulding.

"I think you are way out on a limb."

Chatigny said that, as a lawyer, he put more effort into investigating "a typical run-of-the-mill injury case" than Paulding had invested in evaluating Ross' mental competence to volunteer to be executed. He threatened to go after Paulding's law license if evidence surfaced after Ross was executed to suggest he was coerced or otherwise mentally unstable.

Paulding, who participated in the conference call from Osborn Correctional Institution where Ross was scheduled to be executed at 2 a.m. Jan. 29, clearly was rattled by the call.

He said he made numerous calls to colleagues seeking advice and spoke with state officials assembled in preparation for the execution, including New London State's Attorney Kevin Kane.

He also spoke with Ross, who became angry and upset, visitors have said, when he realized the call probably was going to undermine the execution.

Ross reluctantly acquiesced to Paulding's suggestion that the execution be postponed, and Paulding went before the media close to 1 a.m., barely an hour before Ross was to have been executed, to announce the decision. Paulding stressed that the decision was his, and did not elaborate, except to say he wanted to investigate a potential conflict of interest in his continued representation of Ross.

Two days later he filed a motion to reopen the competency hearing before Superior Court Judge Patrick Clifford.

Meanwhile, Chatigny's comments were getting national media attention and generating widespread debate by lawyers, ethicists and law professors.

Opinions polarized on whether what he did was courageous or the epitome of judicial arrogance.Paulding remains in the case and Ross is now scheduled to be executed in less than two weeks, on May 11. Paulding on Wednesday declined to comment on the complaints.

Chatigny's law clerk, Peter Gwynne, said Chatigny would have no comment.

Chatigny also opined during the Jan. 28 call, "Looking at the record in a light most favorable to Mr. Ross, he never should have been convicted. Or if convicted, he never should have been sentenced to death because of his sexual sadism, which was found by every single person who looked at him, is clearly a mitigating factor."

During the other teleconference, on Jan. 27, Chatigny second-guessed, though much more subtly, whether state officials had conducted a thorough investigation into whether Ross was acting of his own free will, or had been coerced by harsh conditions of confinement.

Weller said transcripts of the teleconferences were forwarded to the 2nd Circuit along with the complaints.

"All we did is we presented what happened," Weller said.

When pressed for how the complaints were cast, Weller said, "It wasn't `cast.' We just said here is the course of events."

Weller emphasized that it was the individual prosecutors, not the Division of Criminal Justice for whom they work, who filed the complaints.

"When we take an oath to the courts and the bar, we're obligated, if we see something improper, we're obligated to disclose it. Or if we think something just needs to be looked at.

Chief State's Attorney Christopher Morano is not among the prosecutors who filed a complaint, but defends their right to do so.

"I don't feel I have the authority, nor would I exercise any authority, to discourage them from pursuing an action of this nature," Morano said Wednesday.

Asked why he did not file a complaint, Morano said, "I was not a party to the phone calls."

The transcript of the calls identifies those who participated, but the calls apparently encompassed a broader audience through the use of speaker phones in various offices. The other six prosecutors declined to be identified. Michael O'Hare, an appellate lawyer for the Division of Criminal Justice, participated in the conferences, but it is not clear whether he is among the six.

Although assistant attorneys general participated in the calls, Attorney General Richard Blumenthal said none of his staff lawyers filed complaints. He hastened to add, however, that his office is prepared to ask Chatigny to recuse himself from any further Ross hearings, should there be a federal appeal.

Blumenthal said at a Jan. 31 press conference that he has "grave reservations" about Chatigny's conduct.

Attorney Hope Seeley, who participated in the teleconferences through her representation of the public defenders in their efforts to halt the execution, said she would not comment on the complaints without seeing them. But she applauded Chatigny's role.

"I think Judge Chatigny showed extreme courage and judicial independence in his actions," Seeley said.

An explanation on the 2nd Circuit website stresses that a complaint cannot be used to have a judge or magistrate disqualified from sitting on a particular case.

Walker could dismiss the complaints if he finds "the appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events," among other reasons.

If Walker determines that further investigation is warranted, he would appoint a committee including himself, six of the 2nd Circuit judges and the chief judges of the three districts the 2nd Circuit encompasses - New York, Vermont and Connecticut.

Because Chatigny is a chief judge and the complaints are directed at him, Walker would select another Connecticut judge to sit on the committee.


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