Monday, April 05, 2010

Justice And The Death Penalty

“The 'most prolific' serial killer in U.S. history” has now been sentenced to death, according to a report in the Daily Mail.

It is suspected that Rodney Alcala, whose picture is shown above, murdered upwards of 130 young girls and women. Alcala is due to be executed by lethal injection for the murders of a twelve year old girl and four women. He has admitted killing another 30 women in the 1970’s. An amateur photographer, Alcala left behind hundreds of pictures of women, some of whom were his victims.

“He committed unspeakable acts of horror,” said prosecutor Matt Murphy, “He gets off on the infliction of pain on other people. He's an evil monster who knows what he is doing is wrong and doesn't care.”

Detective Claiff Shepard places Alcala “right up somewhere below Hitler and right around Ted Bundy. It is not humane what he does to these victims. It is torture.”

Alcala raped his victims, strangled them until they lapsed into unconsciousness, then revived them and killed them.

According to the account in the Mail:

“He laughed and talked throughout the trial at Orange County Superior Court, even after also being convicted of murdering four Los Angeles women - Georgia Wixted, 27, Jill Barcomb, 18, Charlotte Lamb, 32, and Jill Parenteau, 21 - between 1977 and 1979.

“It took nearly 30 years for the law to catch up with him. He was previously convicted twice of killing Robin, but the verdicts were overturned. An earring that belonged to the little girl was also found with the photo cache.”

The horrific story may remind some in Connecticut of Michael Ross, who had murdered several young girls and was – after a tortuous legal process – executed by lethal injection a few years ago over the protestations of some state legislators who thought the state’s death penalty should be abolished.

The Ross execution trailed off into farce when Superior Court Justice Robert Chatigny intervened in the case hours before Ross was to be executed and arranged a teleconferencing call in which the judge threatened to have the law license of Ross’ attorney revoked if he did not agree to yet another hearing. Chatigny, successful in this endeavor, was recommended in October 2009 by Connecticut’s U.S. Senators Chris Dodd and Joe Lieberman to fill a position left vacant on the 2nd Circuit by Judge Sonia Sotomayor elevation to the U.S. Supreme Court.

A few months ago, the state legislature passed a bill abolishing the death penalty that was vetoed by Governor Jodi Rell, who said she thought the present law was just in the cases in which it had been applied in Connecticut.

Although a number of convicted killers are awaiting punishment on death row -- among them Daniel Webb, sentenced to death in 1991 for having brutally raped and murdered a bank executive in a park in Hartford -- the state has executed only two people within living memory: Ross and Joseph “Mad Dog” Taborsky in 1960, who has the distinction of being the only convict in Connecticut sent to death row twice for different crimes.

The bill abolishing the death penalty was passed shortly after two felons, Joshua Komisarjevsky and Steven Hayes, broke into a home in Cheshire, beat Dr. William Petit unconscious with a baseball bat, raped his wife and one of his daughters, tied their victims to a bed and incinerated the house, murdering everyone in the family but Dr. Petit, who survived the assault and has testified before the legislature that the death penalty should, in his view, be retained.

Dr. Petit has been steadfast in pursuit of justice for those accused of murdering his wife and daughters

At the beginning of April, Hayes surprised everyone, including his two public defenders, when he blurted out in court that he wished to plead guilty to the charges against him. This left his public defenders, Patrick Culligan and Tomas Ullman, both ardently opposed to the death penalty, between a rock and a hard place. They had been prepared to defend Hayes tooth and nail, and now they were flummoxed.

The legal rule book is clear on the point that lawyers must respect decisions made by defendants who are competent or not suffering from diminished capacity. Hayes’ pleading came at an awkward time, just before it had been determined by a team of experts that he was competent to stand trial. On the basis of this finding, Hayes’ attorneys had waived a competency hearing. Judged competent, Hayes then proceeded to plead guilty.

What happens next in the case depends on Hayes. Given their adamantine opposition to the death penalty, his lawyers may try to persuade Hayes to leverage his guilty plea in return for a plea bargain. If they are unsuccessful and Hayes continues to be obdurate, they likely will withdraw from the case and allow Hayes to secure the services of a lawyer who would responsibly discharge his wishes -- which is precisely what happened in the Ross case.

The Hartford Courant called all this in an editorial “Suicide by guilty plea,” a bit of a stretch. The Courant points out that should presiding Judge Jon Blue accept Hayes’ plea, another judge and jury will decide his fate in sentencing hearing. Capital punishment is a punishment – not a deterrent – imposed by a jury upon a convicted criminal, and acceding to the punishment is not an act of suicide.

“To take Hayes’ life,” the Courant advises, “would be as barbaric as his taking another’s,” another stretch. Hayes’ victims were not punished; they were brutally murdered in a series of acts that may aptly be described as barbaric. Trials are not exercises in barbarism. The barbarian ravages innocent victims, murders them, and reduces to ashes everything he touches, except for the memories he leaves in the minds of those who love them and yearn for justice.

The events surrounding the Cheshire murders, in addition to a recent attack by Webb on a prison guard that could easily have proven fatal, should raise important questions for those on the Judiciary Committee who have been agitating for a repeal of the state’s death penalty. The co-chairs of the committee, Michael Lawlor and Andrew McDonald, both favor abolition, a view supported by a majority of legislators and some state newspapers.

Appearing recently on the Dan Lovallo show, Lawlor was asked what he might say to the survivors of the convicted murderers on death row when they learned that those who have victimized their families enjoy such amenities as television.

One could almost see Lawlor shrugging in his answer: What can you do? The amenities are given so they may be taken away when those on death row act up and brutalize their guards. If you cannot take advantage of amenities that may be withdrawn to prisoners on death row, how will you insure their civility?

Suppose Webb or someone like Webb had killed the guard? What would Lawlor or McDonald – both of whom who disapprove of the death penalty for any crime, however horrific – suggest be done in such circumstances, the death penalty having been abolished as a barbaric relic? Would another life sentence without parole added to a current life sentence be sufficient to satisfy the exquisite sense of justice of journalists who seem unable to distinguish between barbarism and justice, even when barbarians like Alcala laugh in their faces?

We know that even the barbarian has a claim on our honor, which is why we afford justice, in the form of lengthy trials and hearings, to people like Ross, Alcala and the two barbarians who descended on Dr. Pettit’s home in Cheshire. But why should any of these people have a claim on our mercy? It has been suggested by some who wink at the barbaric practice of partial birth abortion that the state is committing a form of murder when it executes men like Alcala who, convicted of multiple murders, laugh in the face of justice. What amenities should Alcala be afforded in prison that he might be deprived of when he fails to observe the etiquette that governs life in prison without parole on death row? And what should we call death row after death on the row has been legally abolished by the scourged consciences of Lawlor and McDonald?

In June of 2009, someone over in the legislature asked a lawyer connected with the Office of Legislative Research (OLR) for a report on the appeals process and the status of appeals for Daniel Webb.

Senior Attorney Christopher Reinhart was happy to oblige. His report is a record of Connecticut’s barbaric treatment of Webb:

You asked about the appeals process for death row inmates and for the status of appeals by Daniel Webb.


Attached is OLR report 2009-R-0178 which describes the death penalty appeals process.


The following lists important dates in Daniel Webb's case.


● Offense committed: August 24, 1989


● Sentenced to death: September 12, 1991


● Connecticut Supreme Court ruling on appeal affirms the conviction and death sentence but requires a new Superior Court hearing on the constitutionality of lethal injection: July 30, 1996 (238 Conn. 389)


● Connecticut Supreme Court affirms the Superior Court's ruling upholding the use of lethal injection: February 15, 2000 (252 Conn. 128)


● U. S. Supreme Court denies petition appealing the Connecticut Supreme Court's ruling: October 2, 2000


● State habeas corpus petition filed: October 17, 2000


● State habeas trial completed: January 25, 2007


In addition, Daniel Webb is one of nine death row inmates involved in a state habeas corpus petition that consolidates all racial disparity claims by inmates sentenced to death (In re: Claims of Racial Disparity in Death Penalty Cases).


It is difficult to predict when Webb's case may end. If the Superior Court does not grant Webb's state habeas petition, he can appeal the court's ruling through the Connecticut courts and, if unsuccessful, appeal to the U. S. Supreme Court. If Webb is unsuccessful on these appeals, he can then file a federal habeas corpus petition in federal district court. That petition can be appealed through the federal courts to the U. S. Supreme Court. Additional state or federal habeas petitions may be possible depending on the circumstances. If all these petitions fail, the state can carry out the death penalty.


But if Webb is successful in one of his petitions, a court could overturn his conviction or death sentence. A court could require a new trial if it overturns the conviction or a new sentencing hearing if it overturns the death sentence. If there is a new conviction or sentence, the appeals process would start over again.

Lawlor told Lovallo during his interview that Connecticut’s death penalty law was virtually inoperable. It is the considered opinion of both co-chairs of the Judicial Committee, Lawlor and McDonald, that Connecticut prisoners on death row can only be executed if, like Ross, they demand to be executed. And even then, court justices such as Chatigny are waiting behind the curtain to poke sticks into the slow turning wheels of justice.

In May 2009, Lawlor was quoted on the point by the New Haven Register:

Brushing aside the “philosophical debate,” Lawlor pointed out that “as a practical matter, no one is going to be executed in Connecticut unless they want to be, like Michael Ross.” And he went on to express a touching concern for families emotionally brutalized by long delays of justice: “It is the ultimate cruel and unusual punishment to let (the victims’ families) believe, to hold out hope, that a death penalty will be imposed when the people behind it know it will never happen.”

Hayes now threatens to derail the capital punishment derailment process.

It won’t be long before some outraged ethicist writes up a commentary patiently explaining to the survivors of Alcada’s 130 victims, all yearning forlornly for justice, that they and not Alcala are the real barbarians among us. It is no longer necessary to think in an ordered way about questions of justice, vengeance, mercy and the rest of it: In a society in which journalist eat and regurgitate the brains of other journalists, one simply waits for the talking points to appear in the media. These bright little bumper sticker thoughts then maybe molded into rhetorical bullets and shot at non-barbarians like Lovallo, who has shown himself to be uncomfortable with cant.

What are you going to do? No one can get executed. The state is barbaric. Execution is barbaric. We’re all barbarians.

The usually claptrap.

The bill to abolish the death penalty was passed by the state legislature and vetoed by Gov. Jodi Rell in May, 2009.

Co-chair of the judiciary committee Andrew McDonald, one of the bill’s chief proponents expressed a preference for life imprisonment over the death penalty because he thought “death is too kind for some of these defendants,” another bumper-sticker thought that allows an opponent of the death penalty to slather himself with concern for the victims of convicted murderers, any one of whom, unlike McDonald, would rationally prefer life in prison with amenities to death without amenities.

Joshua Komisarjevsky, accused with Hayes in the Cheshire murders, strongly disagrees with the co-chair of the judiciary committee. Komisarjevsky’s lawyer, attorney Jeremiah Donovan, told the Associated Press early in April that his client would only change his not guilty plea if the state agreed not to pursue a death penalty

Said Donovan, “We said during the very first appearance in court and we continue to say that we would plead guilty to all the charges so long as the state didn't insist upon the death of Joshua.”

After passage of the bill in May 2009, McDonald addressed the prospect of a gubernatorial veto. This was a historic day for our chamber and for our state,” he enthused. “I would encourage the governor to take some time and reflect on the magnitude of what the people’s chambers have said today, and to consider anew the continued viability or utility of the death penalty in a civilized society.”

Elections, which hold out the prospect of political demise for incumbents, are on the way, and legislators who voted in favor of the abolition of the death penalty can always be voted out of office.
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