Monday, January 31, 2005

Gaming the System: How to Escape the Death Penalty, Michael Ross

Cecily says to Algernon in Oscar Wilde's "The Importance of Being Ernest," I hope you have not been leading a double life, pretending to be wicked and being really good all the time.

The same cannot be said of Michael Ross, who claims that he has abandoned future appeals to spare the family members of his victims more agony. It is difficult to believe anything good of a man who is capable of strangling and raping all but one of his eight victims. It is much easier to believe that Ross is evil or crazy or manipulative -- and merely pretending to be good.

Ross, in other words, is either crazy as a fox or just plain crazy.

Proponents of the death penalty for heinous crimes -- which is to say, Connecticut's legislature and, according to polls, a majority of people living in the state -- believe that Ross was fully competent when he decided to forgo appeals and accept his death sentence. Such people do not believe that one need be a monster to commit monstrous crimes. According to their view of things, "Mad Dog" Taborsky, the last person to received the death penalty in Connecticut, was not mad -- not, at least, in the clinical sense.

Opponents of the death penalty believe that Ross was gaming the system when he metaphorically put his head on the execution block. His chivalrous offer to accept the judgment of a trial court, an automatic review by the state's Supreme Court and various appellate courts was not so much gallant as clever. That cleverness, they say, masks a mental deficiency that makes him incompetent to "volunteer" for a death sentence.

Until recently, the people who took the view that Ross was gallant were a minority of two: Ross and the defense attorney he had engaged to represent his interests, T. R. Paulding. They were opposed by Ross' former public defenders and other lawyers hired by Ross' father and a church group.

We may never know for certain whether Ross is gaming the system. The games people play are like snakes biting their own tails. One cannot easily tell heads from tails. But one thing is absolutely certain: The attorneys for the defense and prosecution, oddly turned about in this case -- The defense wants its client to be punished, and the prosecution wants a punishment assigned by three or four courts to be lifted -- are gaming the system. We know this is true because trials involve advocacy and advocacy involves roll playing.

Trials are game-like or, better still, they are like plays. Justice, the end product of the play, depends upon a numbers of things. The advocacy process must involve a prosecution, a defense and a determination made by a disinterested judger of facts, usually a judge or jury. This process becomes tainted when roles shift, and they did shift when Judge U. S. District Court Judge Robert Chatigny surrendered his role as a dispassionate judge of facts, entered the case on the prosecution side and persuaded Ross' defense counsel to change his role in the play.

Chatigny had his reasons. The judge felt, passionately, that all pertinent evidence should be considered. And he felt, as passionately, that new exculpatory evidence simply had not made its way into the play. For these reasons, he harried and threatened Ross' defense lawyer during a nearly hour long conference call, at the end of which Paulding decided to re-configure what should have been the last act of the play.

And so, we find ourselves back at square one.

Some things have not changed. Ross is still guilty of murdering four young women. Eight young women remain dead. Their relatives still await justice. And although Chatigny has said he believes Ross' jury was wrong when it found him to be sane, it is not possible to change the verdict in Ross' first trial or the verdict rendered by two juries in death penalty hearings or the supportive findings of various appellate courts.

Nor is it necessary. The prosecution in this Alice in Wonderland play intends to assert that Ross' incompetence is the result of his protracted stay on Death Row. Even if Ross were sane and responsible when he murdered eight women, he has since developed a psychological disorder that makes him incompetent to decide to forego further appeals on his behalf pressed upon him by lawyers he has fired.

Everything depends upon Ross' competence. And Ross' competence will depend upon what?

Some news accounts suggest it will depend primarily upon the testimony of a psychologist that Ross is suffering from a debilitating affliction called "Death Row syndrome," rendering him incapable of deciding to forego further appeals.

Assuming Ross is found incompetent, what then? Who will decide the issue? Surely not Chatigny, whose role has changed from judge to advocate; certainly not Paulding who, at the insistence of Chatigny, slipped out of character as a defense counsel and persuaded his client, presumed incompetent by his discharged public defenders, to endure yet another hearing on the question: Who is gaming whom?

The rules of the game having changed, the roles of the players having changed, where do we go from here?

There are dozens of people, the family members of Ross' victims, who believe that justice requires an end to the game.

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