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.

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