Tuesday, January 25, 2005

The Ross Case, A New Twist

The recent decision by U.S. District Court Judge Robert Chatigny giving Ross’ discharged lawyers an opportunity to mount a new defense showing that their former client is mentally incompetent has lengthened the distance between Ross and the death chamber.

Much like the man who murders his parents and then throws himself on the mercy of the court as an orphan, Ross’ former defense counsel intends a novel plea.

With the help of a psychiatrist who has not examined Ross – and who may be writing a book expounding his piquant theories -- they will argue that Ross has been made incompetent by his long stay in the death house. The prospect of execution, Samuel Johnson once said, clears the mind wonderfully. It is Dr. Stuart Grassian’s considered opinion that it drives men nuts. Grassian is a psychiatrist who has studied inmates' psychopathological reactions to solitary confinement.

Trials are legal instruments designed to affix guilt and punishment. Ross’ very first jury rejected claims by his defense counsel that Ross was in the grip of an overmastering psychological disorder that would have mitigated his crimes. The bar on mitigating circumstances was lowered by the legislature in response to the Ross case. Before Ross, a defense attorney only had to show the presence of one mitigating factor to spring his client. After Ross’ first trial, the legislature rewrote the guiding law and specified that mitigating circumstances were in the future to be weighed against aggravating factors.

Ross sensed the futility of future appeals and reasoned in the end that not only was the execution of his sentence inevitable; it was just. As execution day approached, the public defenders Ross had dismissed, as well as the defense community, resorted to a series of appeals that were rejected because the petitioners had no standing before the courts.

The psychology of the case was wacky from the first. A psychologist at his first trial argued that Ross’ mental incapacity had been evident even when he was a boy tending to farm duties. One of Ross’ responsibilities was the weeding out of defective chicks by strangulation. And later, you see …

The jury was invited to deduce from this early childhood experience the seeds of a psychological disorder that later would show itself when Ross similarly strangled eight women, raping all but one of them. The psychologist was not asked on the stand whether Ross had raped the chicks. The jury, in any case, did not go for the bait and found that mental disorder had not played a part in the killings. One hopes the jurors had been inoculated against such nonsense by Karl Kraus’s observation that “psychology is the disease it purports to cure.” Kraus was an early and persistent critic of the theories of Sigmund Freud.

The most compelling argument presented lately by attorneys who have no standing in Ross’ defense pivots on equitable prosecution. So long as prosecutors are permitted a reasonable discretion in choosing which cases they are to bring to trial, different cases will be treated differently. Not everyone who commits a felony will be executed. Nor should they be, says John Connelly, the state’s attorney for the District of Waterbury. Discretion enters into every prosecution, and the legislative undergirding of Connecticut’s death penalty is so designed that only murderers who have committed “the most horrendous crimes” are prosecuted.

As the Ross case made its way like molasses through the usual labyrinthine appeals process in Connecticut, Ross’ former public defenders argued that their former client was perfectly sane when he allowed them to place legal barriers between himself and the execution chamber but batty when he decided – out of deference to the sufferings of the families of his victims – to forego appeals virtually certain to end with his execution.

Ross finally had taken command of the tag end of his life -- only to have it snatched from him by lawyers who, two trial courts and Connecticut’s Supreme Court have decided, are not authorized to plead for him.

The Ross case, a tangled knot of dubious claims and legal pretensions, likely will end up in the U.S. 2nd Circuit Court of Appeals, a court that has little patience with right thinking and the constitution, which the court regards as a leaping pad for its unorthodox opinions.

It is not beyond the court to decide that a lengthy stay in Connecticut’s death house -- a vacation made possible by the persistence of lawyers Ross has dismissed – has driven Ross nuts, wherefore the court will order Ross to dismiss his present lawyer and rehire his discarded defense council to represent him from now until doom’s day.
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