Tuesday, March 13, 2018

McDonald And The Art Of Victimology


Governor Dannel Malloy’s Nominee for Chief Justice of the Connecticut Supreme Court, Justice Andrew McDonald, was sent to the General Assembly with a negative recommendation. The nomination  passed in the House by one vote, where Democrats have a six member edge over Republicans, and is now headed towards the Senate, which is split 18-18 among Democrats and Republicans.

The Republican leader in the Senate, Len Fasano, said on a radio talk show recently that he is inclined to vote down the nomination.  After viewing all McDonald's opinions -- and also interviewing McDonald -- Fasano feels that McDonald is prone to affirming a possibly flawed decision if the decision contains a partial narrative that supports his apriori views. For instance, McDonald believes that the death penalty may be racist because it falls disproportionately on blacks, a doubtful datum. If a decision to abolish the death penalty supported that view, McDonald would be inclined to support it. That mode of interpretation violates judicial norms and is reason enough to vote down McDonald's nomination. Is Fasano right?

Fasano’s view is trustworthy; it bears weight. McDonald’s political prejudices – he is an unapologetic progressive – run deep. The best judges do not import their a priori affirmations and legislative prejudices into their decisions, because doing so clouds the proper focus necessary to render just decisions.

The death penalty decision handed down by the Supreme Court, which vacated felony convictions for the 11 prisoners awaiting justice on death row, was tortuous and wrongly decided. The Chief Justice at the time the decision was handed down said very plainly in a dissenting opinion that the majority decision was fundamentally wrong.

On a following appeal in the case of another death row inmate, Chief Justice Chase Rogers declared that the doctrine of stare decisis should apply. The court – having wrongfully decided to abolish the death penalty in the first instance – never-the-less was right in making the same wrong decision in a second case because stare decisis should in all instances apply. The court’s second decision – which effectively killed the death penalty --   wrong in the first instance, was right the second time around because, the Chief Justice wrote, courts should as a matter of principle defer to prior decisions.

This was Alice in Wonderland reasoning, bitterly and lucidly contested in two dissenting opinions.  Justice Carmen Espinosa  pointed out that the Connecticut Supreme Court had overruled prior precedent 25 times during the Chief Justice’s tenure on the bench, and Justice Peter Zarella's  dissent cut to the quick : I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error.” What a tangled web we weave when first we practice to deceive, eh?

Dannel Malloy has now appointed six of seven justices to the Supreme Court. At a minimum, this means that dissent on important decisions will be muted – like minds think alike. Every decision made by a court so packed by a single governor should be carefully scrutinized; but who is at home on Connecticut’s Supreme Court bench to do the scrutiny – McDonald?

Two of the 11 death row prisoners whose sentences have been changed to life in prison were responsible for a horrific home invasion in Cheshire. The two paroled prisoners beat the head of household senseless with a baseball bat, forced the wife to withdraw money from a bank, raped the wife and one of two daughters and then murdered all three by setting their house on fire. Dr. William Petit, whose whole family was brutally murdered, is now a state Representative in Connecticut's 22nd House District.

Both co-chairs of the Judiciary Committee, McDonald and Mike Lawlor, now Governor Malloy’s Under Secretary for Criminal Justice Policy and Planning, had successfully agitated for the abolition of the death penalty – even for such horrific crimes as were committed in Cheshire. As a private citizen and victim, Petit vigorously opposed abolition, but in the end his opposition and those of others in the General Assembly was overcome by a progressive alliance in the General Assembly and obliging members of the State Supreme Court, McDonald among them. This is what Representative Petit said about McDonald as his nomination for Chief Justice wended its way through the House chamber: “Given what I feel is this bias, I am concerned about confirming a justice who has appeared to want to push a personal agenda and not directly interpret our laws.”

The scale has not been made in which Petit’s tears can be weighed. Tears are wasted on McDonald, who is no victim.

Progressives both in the General Assembly and the Supreme Court have had great difficulty in determining victims from aggressors. As a legislator, McDonald, his conscience unruffled, voted against a “three strikes and you’re out law” endorsed by Republicans in the General Assembly in direct response to the murders in Cheshire.

McDonald was serving as co-chair of the Judiciary Committee, along with his Tonto, Mike Lawlor, when the two constructed a bill that, had it passed, would have destroyed the apostolic nature of the Catholic Church. The two shed no tears for Catholics. When they were caught out, both insisted their bill had been crafted in response to the concerns of a constituent who later said he had never seen the final form of the bill. The destructive bill was withdrawn after nearly five thousands petitioning Catholics showed up on the Capitol lawn to protest the abolition of priestly authority.

When he left the State House, Lawlor fell into a featherbed provided by Malloy. As Under Secretary for Criminal Justice Policy and Planning, the state’s penology guru initiated a “get out of jail early program” for oppressed prisoners. His credits were parceled out retrospectively to prisoners, many of them violent, who did not jump through the hoops necessary to receive the credits. Among them was a gangbanger who had burned his mattress in prison, Frankie "The Razor" Resto, so called because he used razors to shake down drug dealers. On the outside, "The Razor"procured a gun and shot to death a shopkeeper who had obligingly handed over to him the cash from his register. The best victims advocate the state ever had, Michelle Cruzfound herself without a job when she consoled the victims in public and pointed out failings in Lawlor’s ill administered program.

Who are the victims here – surely not McDonald and Lawlor?






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