Monday, January 15, 2007

Subversion in the Court

There’s something to be said for the vigorous application of bad laws; it’s the best way to get rid of them.

The anti- capital punishment forces here in Connecticut want state prosecutors to develop a standard for the prosecution of those who commit capital felonies. Once the standard is established, it must be uniformly applied by all prosecutors in the state. A prosecution in which the standard is not uniformly applied then may be contested in court as being selective and falling outside the governing rule, providing plaintiffs accused of capital felonies with yet another useful arrow in their already crowded quiver.

Should Connecticut appellate courts agree with those now arguing that the absence of a standard for prosecution in capital felony cases is on its face unconstitutional, one need not argue the guilt or innocence of the murderer; one need only show that a prosecutor in a different district unconnected with the case had failed to prosecute in a similar instance.

A consistent application of the court rule devoutly wished for by anti-capital punishment forces would empty the prisons and crowd the courts. Judges and juries would no longer be asked to provide justice based on a consideration of the objective facts before them. The guilt or innocence of a future Michael Ross, the last person in Connecticut to be executed under the state’s capital felony laws, would not depend upon a jury’s deliberation of the evidence presented by a prosecutor – provided plaintiff lawyers were able to show that any other prosecutor in the state did not execute the standard governing prosecution that anti-death penalty opponents now are urging upon the courts.

There is no reason to suppose that the same court rule should not apply to all crimes committed in Connecticut, however minor or odious. If lawyers for serial murders are able to argue successfully that their client should be spared the death penalty because a prosecutor in a different district failed to prosecute according to a subversive standard ordered by the court, why should the same rule of court not apply to rapes or robberies or traffic tickets?

A vigorous and equitable application of the desired prosecutorial standard applied universally to all cases very shortly would convince everyone of the injustice of the rule, because justice under such conditions would not be possible. The rule, consistently applied, would instantly be recognized by all as a prosecutorial abortifacient designed to prevent a just adjudication based on the facts of a case.

Of course, it hasn’t come to this yet, because appellate courts have not ruled on the matter brought before them by anti-death penalty opponents. But the logical effect of such a rule would be to shift the determination of justice – roughly defined as the giving to a man what is due him under the law based upon his behavior and objective determinations made by judges and juries – from a judicial process uniquely designed to provide justice to an endless adjudicatory process that subtly subverts it.

Unfortunately, here in Connecticut the anti-death penalty barricades already have been erected. And those burning barricades – as was shown in a decision made by Judge Chatigny to subvert a final determination in the Michael Ross case through disgraceful bullying tactics that effectively nullified a final Supreme Court decision – run through the court system itself.

Not only did Chatigny push and shove Ross’ lawyer, T.R. Paulding, into an unnecessary hearing on the eve of Ross’ execution, he also shamelessly lied concerning his prior involvement in the case.

The pro and anti-death penalty barricades are visible in the state’s Supreme Court as well. It is no longer possible to assume that subversion through judicial decree would be unwelcome by justices who are charged under the constitution with providing justice -- even in death penalty cases.

For many on the anti-death penalty side of the barricades, ending the death penalty in Connecticut has become a question of caging the devil. And they would use any means necessary to do so. When Thomas More’s son-in-law Roper said he would cut down every law in England to cage the devil, More asked him to whom then would he apply for help when the devil turned on him -- all the laws in England having been flattened?

It is a question Connecticut justices should ponder.
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