Sunday, May 15, 2005

The Death Penalty Debate After Ross

Serial killer Michael Ross said – and he was right – that a debate on the death penalty could not properly begin so long as he was alive. Connecticut, after much needless soul-searching, executed Ross on May 13, 2005, a Friday the 13th as it serendipitously happened.

The chief obstacle to a rational discussion of the death penalty having been removed, nothing but the prejudices of the disputants now stands in the way of a cleansing debate on the issue. There are prejudices on both sides of the pro and con barricades. Positions already have hardened.

Two important questions must be decided before we can have a rational debate on the issue. The first question is: Should the issue itself turn on broad ethical or religious principles, or should it be decided with reference to particular circumstances?

If the issue is to be decided on broad ethical or religious principles, can we admit exceptions without, in effect, abolishing the guiding principle we are asserting? Cardinal Newman, the great defender of Catholic orthodoxy, would have given a hearty “yes” in answer to this last question: “There is no principle on earth,” he said, “to which there is not at least one exception.” Exceptions, he would have insisted, prove the rule.

The second important question is this: Are those now steering the debate willing to engage in an honest and vigorous exploration of the question? Can we have an honest debate when the overwhelming majority of those controlling the debate already have decided the issue in their own minds?

Since this is an opinion column, it seems appropriate to venture an opinion on these two questions.

The second question is easily answered. There can be no fruitful discussion in the absence of an honest inquiry.

As to the first question, hardened opinion on the death penalty may be too lofty to be practical.

The anti-death penalty marchers who trekked from Gallows Hill at Trinity College in Hartford to Somers, the site of Ross’ execution, did not go out of their way to pay a visit to Griswold, where the families of many of Ross’ victims live. A path connecting the site of the execution with Ross’ victims would have spoiled the symbolism of the march and its message -- which was that executions are never appropriate punishment for such crimes as were committed by Ross.

A train of thought connecting the advisability of capital punishment with particular cases is just too inconvenient for ideologues who do not want the facts of life to interfere with their settled judgment.

Underneath all the roiling and toiling of those intimately involved in the Ross case, a consensus on the death penalty seems to be emerging: The death penalty should be reserved for “heinous” crimes as defined by legislatures.

It should be noted that as soon as the penalty is limited in any way, it is unavailable for cases that fall outside the limits. One may therefore anticipate an uneven and discriminating application of the penalty. But this kind of discriminating use of punishment should not be viewed as violating often cited constitutional rights to equal protection under the law. Even within the limits of the law, the prosecution of capital felony cases may be uneven: Prosecutors are different, and even cases that may seem similar are not identical.

Nor does it seem reasonable to argue, as opponents of capital punishment sometimes do, that felon A, though culpable, should escape justice because felon B had not been prosecuted, when the crimes of both A and B were similar. The failure of a prosecutor to seek a death penalty for B should not mean that he must forced by wrongheaded court interpretation to fail in prosecuting A, when there is good reason to believe that A is guilty.

It may very well be the case, as some say, that capital punishment is on its last legs. If it is eliminated, what just punishment will be available to felons serving life in prison with out parole should they murder a prison guard or another prisoner? And are we certain that life in prison without parole will not fall victim to the same ideologues who, ignoring Newman’s precept, are now agitating against the death penalty? After all, during the last stages of Ross’ prosecution, prominent judges and psychiatrists asserted a causal connection between the duration of punishment and mental incapacity. And life in prison without parole is long; some might even regard it as cruel and unusual.

Saturday, May 07, 2005

To Compromise or Not to Compromise: That Is the Question

Republicans were said to be surprised by Governor Jodi Rell’s unilateral decision not to contest a Democrat proposal to raise the minimum wage from $7.10 to $7.40 next year and to $7.65 in 2007. Yet some Republican Party stalwarts, presumed to be more conservative than the run of the mill majority Democrats, conceded that Rell’s decision may have been strategically proper.

Governors, so the reasoning goes, are not legislators. Though Rell is the titular head of her party, as governor she must negotiate with a legislature dominated by Democrats and therefore must carefully pick and choose her battles. In the matter of the minimum wage, she chose to throw in the white flag before rhetorical hostilities commenced in order to save her powder for other more important occasions.

Asked whether her party was disturbed by her early retreat from a position once routinely defended on principle, Rell responded, “I don’t know of any tension, trust me.”

The uncomplaining acceptance of Rell’s decision on the part of Republicans can only mean that the state GOP thinks a battle over the issue is not worth the bother. It is important, Rell’s supporters suppose, to reserve the party’s strength and scarce resources for other more worthy confrontations. Unexercised Republicans are easily exhausted in battles with majority Democrats.

The new Republican strategy appears to be: Don’t fight city hall; instead, negotiate and compromise. The rational for this strategy rests on the uncertain presumption that Democrats, grateful when Republicans choose to surrender on issues important to them, will either reciprocate or refrain from using their legislative majority to crush Republicans on precisely those issues they are willing to battle for.

But majority Democrats this year seem to be more eager than usual to exercise their prerogatives: “What is the point in having absolute power,” a famous caricaturist once said, “if you are not willing to abuse it?”

And what is the difference, some Republicans will want to know, between compromise and surrender? The difference is that compromise follows constructive engagement; where there is no engagement, particularly on matters of principle, compromise cannot be regarded as other than abject surrender.

When Rell gave way to a Democrat demand for a boost in the minimum wage, she was running up a flag of surrender. There are in Connecticut hundreds of small shop owners whose views on the minimum wage do not parallel those of Union leaders or Sen. Edith Prague, co-chairmen of the labor committee, who commented, “I think it’s probably the most astounding thing I’ve ever seen in the chamber. I think it’s wonderful, and certainly the governor helped us.”

It’s always nice to be nice and helpful to be helpful. But how does helping Democrats help Republicans? It is a question Republicans may want to ask Rell when election rolls around and members of her party begin to look for a way to distinguish themselves from – just to pick a name out of a hat – Edith Prague.

It is said that former Governor John Rowland was infamous, among some principled Republicans, for pulling the rug from under the feet of his own party, so eager was he to make deals with the opposition and cover himself in plaudits. The premature compromises Rowland routinely made with opposition party leaders certainly helped Democrats, whose numbers in the legislature began to swell with every subsequent election, even as Republican numbers diminished.

Voters, now looking at the two parties, see few differences between them. Because the state is flush with Democrats, demoralized Republicans, moderate Democrats dissatisfied with the leftward drift of their party, and taxpayers increasingly feeling the pinch following years of spending inflation have all become apathetic, and the majority of voters, on auto-pilot, have given the Democrats a veto-proof majority in the legislature.

The Republican Party is flirting with irrelevancy -- by failing to distinguish itself from the opposition on points of principle and honor and running up a white flag when they ought to be waving a revolutionary red flag.

Politics is public theater at its best: an engagement on a public stage of antagonists and protagonists for purposes of instruction and edification. If there is no real engagement – other than mock battles between ham actors wearily reprising their stock roles -- the actors will lose their audience. The political struggle to be effective must be real and waged on points of principle.

Where are the lines of confrontation to be drawn by Republicans, if not on excessive spending and taxation?

What Connecticut’s Republican Party desperately needs is a Republican Party, strikingly different than the opposition, to replace the current small, ineffective, complaisant, go-along-to-get-along structure that appears to have been co-opted by Speaker of the House James Amann, Lt. Governor Kevin Sullivan and Edith Prague.

Tuesday, May 03, 2005

Has The Fat Lady Sung

Supervisory Assistant State’s Attorney Harry Weller has argued in a brief he submitted to Connecticut’s Supreme Court that “Special counsel Thomas Groark cannot prosecute an appeal in the seemingly interminable Michael Ross case because “he is not a party” to ongoing litigation. Groark’s petition, therefore, “is inappropriate, unprecedented and should not be countenanced by this court.”

Groark is petitioning Connecticut’s Supreme Court to review a decision made by Superior Court Judge Patrick Clifford following an unprecedented hearing during which Clifford ruled that Michael Ross was mentally capable of deciding to forgo further appeals in his case.

The hearing was unprecedented because a “final” decision on the matter of Ross’ competence had been made both by Connecticut’s highest court and the U.S. Supreme Court.

These decisions were artfully subverted by Chief U.S. District Judge Robert N. Chatigny.

Hours before Ross was to be executed, Chatigny convened a questionable teleconference call involving Ross’ lawyer, T.R. Paulding, several parties that, according to court rulings, had no standing in pending litigation, and some state prosecutors.

Even today, although transcripts of the teleconference are available on the internet, all the names of those participated in the call are not readily available. If the teleconference had been preceded by conversations held between Chatigny and the attendees at the teleconference, the nature of those communications have not been made public.

During the conference call, Chatigny berated and threatened Paulding, vowing to pull Paulding’s law license should it be determined following the pending execution that Ross had been mentally incompetent to decide to forgo his appeals.

As a direct result of Chatigny’s subversive intervention, Ross’ execution was derailed, and Paulding was persuaded to convince his client to submit to a hearing on his competence; Ross’ death sentence was pushed forward; a hearing before Clifford was held during which special counsel Groark was permitted to put before the court testimony by two psychiatrists who supported the view that Ross was incapable by reason of mental defect of making rational decisions; and Clifford decided – for the second time – that Ross was mentally capable of choosing to forgo future appeals.

Prosecutors have filed a formal complaint against Chatigny that will be decided, in a ceremony closed to the public, by justices attached to the 2nd Circuit, where Chatigny plies his trade. The complaint has been referred to Chief Circuit Judge John M. Walker Jr. and will be made public only if Walker determines that an investigation is warranted, after which Walker may appoint a committee of judges drawn from the district court to decide the matter. Because Chatigny is a chief judge of the court, Walker will select another Connecticut judge to sit on the case – which is a little bit like selecting a fox from outside the neighborhood to guard the hen house.

Weller’s assertion that Groark, a special counsel appointed by Clifford, “has no standing” to file any appeal now lies before Connecticut’s Supreme Court.

One wonders at this point whether a decision by Connecticut’s highest court may be appealed to the U.S. Supreme Court.

Several questions beg to be answered.

Does the power and authority of a special counsel end when the task for which he was appointed is completed? If Groark does have standing before any appellate court, whose interests, precisely, is he representing? It is highly irregular -- also amusing -- that reporters cannot in their news stories put a name to Groark's client.

Groark cannot represent clients that previous courts have determined had no standing in the Ross litigation. So, if Groark is not representing Ross or the former defense counsels that Ross fired or Ross’ father, who unsuccessful sought to intervene in the case, or a church group that courts determined had no legal standing to intervene in the case or Judge Chatigny, whose disruptive and highly questionable intervention is directly responsible for the current costly litigation log jam, whose interests does Groark presently represent?

Groark received his commission to intervene from Clifford The judge was responding to a legitimate party in the case, Ross himself, who reluctantly agreed to a competency hearing engineered by Chatigny, now the subject of a complaint filed by prosecutors who, like the patient victims of Ross’ killing spree, want finality.

At what point in an elaborate and ingenious litigation process do we decide, finally, that the Fat Lady has sung?

Justice – if it means anything at all – means that those guilty of crimes get their due, and justice delayed is justice denied.

Some argue that the Ross case demonstrates the death penalty in Connecticut is in some sense unworkable and should, for that reason alone, be abolished. But it must be said that some people are working very hard to make the death penalty unworkable. Connecticut’s Byzantine process surrounding the death penalty should be streamlined to render it effective and just for those cases in which it is appropriate.

Justice without mercy is strained, but mercy without justice is criminal.