Monday, July 31, 2006

Judge Chatigny’s Memory Lapse

“Judge Chatigny stated that he had forgotten his brief, inconsequential involvement with Ross' direct appeal and would have recused himself had he remembered it. A failure to recuse resulting from an innocent and reasonable memory lapse is not misconduct."

Those lines, from a special committee report clearing Judge Robert Chatigny from charges of misconduct, ought to be dubbed “the Lisa Moody defense.” Essentially, the panel of judges that gave a pass to Chatigny are saying 1) Chatigny did indeed fail to recuse himself for having participated earlier in the Michael Ross case, 2) the failure to recuse does indeed indicate misconduct, but 3) a failure to recuse oneself need not lead to a determination of misconduct if the judge “innocently and reasonably” has a memory lapse.

One recalls Moody’s doubtful memory lapse in connection with Chatigny because Moody, Governor Rell’s chief aide, had made handwritten notes on a memo she claimed not to have remembered; Chatigny hand wrote 15 pages of notes in connection with a filing that he claims not to remember. Moody, Governor Rell’s chief aide, survived an interrogation by a legislative committee; but some legislators, unsatisfied with her explanation, plan to recall her for further questioning. The three judges who determined that 15 pages of Chatigny’s hand written notes fell though a tiny crack in the judge’s memory banks, were more obliging to their judicial brother-in-arms.

Neither his unfortunate memory lapse nor the report vindicating Chatigny, however, changes the roll played by the judge – that of a judicial scold -- in the Michael Ross prosecution. Through a series of overt and implied threats at a meeting hastily called hours before convicted serial killer Michael Ross was to be executed, Chatigny prevailed upon Ross’ lawyer, T. R. Pauling, to convince his client of the need for further judicial intervention. After years of judicial processing, Ross had determined that he did not wish to impede justice any further; he decided to step off the judicial rollercoaster and accept the punishment meted out to him by a series of judges and juries. Approached by a shattered Pauling on the eve of his execution who implored Ross to agree to yet another hearing, Ross relented, explaining that he was doing so only for the sake of his lawyer.

As a practical matter, the meeting arranged by Chatigny served to overrule a series of decisions made in the case by numerous judges – including a putative “final decision” made by Connecticut’s Supreme Court. The Supreme Court and state Supreme Court decisions came at the end of more than a decade of costly judicial processing. The seemingly endless processing, lasting a dozen years, was prolonged further by what the panel that vindicated Chatigny called the judge’s “unusual” actions. It is not common for justices to force lawyers to abandon the defense of their clients and agree to extraordinary measures by threatening to pull their law licenses or to arrange unorthodox hearings the practical effect of which is to overrule conclusive decisions at the tail end of a case that has percolated through the courts for a dozen years.

One thing is certain: The judicial brotherhood, like any of the lesser “hoods,” knows how to take care of its own. The covey of judges that decided the issue of Chatigny’s misconduct -- 2nd Circuit Chief Judge John W. Walker Jr., circuit Judge Pierre Leval and Chief Judge Michael Mukasey of the Southern District of New York -- made a special point of noting in their final report that Pauling was not a complainant. “It is noteworthy,” the Judges wrote, “ ... that it is not Paulding but his litigation adversaries who argue that the judge improperly threatened Paulding.”

What a surprise!

From the very beginning of the Ross case, victimologists in Connecticut identified Ross – not the serial killer’s true victims, more than a half dozen young women who were raped and strangled by Ross – as worthy of their attentions. And in their final report a panel of judges sympathetic towards Chatigny has determined that Chatigny is simply a victim of unreasonable charges made by Ross’ prosecutors. Chatigny was innocent and reasonable, the victim of overreaching prosecutors; Pauling was not victimized by Chatigny.


Whether Chatigny should be impeached is still an open question.

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