From Out of the Macabre Muck - UPDATE

And so, it seems, Dr. Petit won't get his revenge.  Steven Hayes and Joshua Komisarjevsky won't be killed by the decent people of the State of Connecticut for the horrific invasion of the good doctor's home, the mother raped and strangled, the girls, 11 and 17, killed in a scorching blaze after gasoline was poured on them.  (And those are just the highlights.)

Hayes and Komisarjevsky were among the 11 men left on Connecticut's death row after the legislature repealed the death penalty in 2012.  Prospectively only.  They'd have done it sooner, but put it off so Dr. Petit could have his way and Komisarjevsky could be sentenced to die.  But they did it.

But what to do with those 11?  Republicans made a point of it during legislative debate.  Peter Applebome in the Times from back then.

Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men.
“Let’s not mislead the public; let’s not mislead ourselves” said the House minority leader, Lawrence Cafero Jr., of Norwalk. “If it is the will of this chamber that this state is no longer in the business of executing people, then let’s say it and do it. You cannot have it both ways.”

Well, maybe you could.  But not, as it turns out, in Connecticut.

Yesterday, by a vote of 4-3, the Connecticut Supreme Court said enough.  In State v. Santiago, litigation over whether the prospective elimination of the death penalty in Connecticut made its retroactive application unconstitutional, the court said that it did.  Near the start of the 92-page lead opinion, Justice Palmer quoted Santiago's counsel setting forth the base claim.. 

[T]he death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.

And then, Palmer gave the answer

Public Act 12-5 not only reflects this state’s longstanding aversion to carrying out executions, but also represents the seminal change in the four century long history of capital punishment in Connecticut. Accompanying this dramatic departure are a host of other important developments that have transpired over the past several years. Historians have given us new chronicles of the history and devolution of the death penalty in Connecticut. Legal scholars have provided new understandings of the original meaning of the constitutional prohibition against cruel and unusual punishments. Social scientists repeatedly have confirmed that the risk of capital punishment falls disproportionately on people of color and other disadvantaged groups. Meanwhile, nationally, the number of executions and the number of states that allow the death penalty continue to decline, and convicted capital felons in this state remain on death row for decades with every likelihood that they will not be executed for many years to come, if ever. Finally, it has become apparent that the dual federal constitutional requirements applicable to all capital sentencing schemes—namely, that the jury be provided with objective standards to guide its sentence, on the one hand, and that it be accorded unfettered discretion to impose a sentence of less than death, on the other—are fundamentally in conflict and inevitably open the door to impermissible racial and ethnic biases. For all these reasons, and in light of the apparent intent of the legislature in prospectively repealing the death penalty and this state’s failure to implement and operate a fair and functional system of capital punishment, we conclude that the state constitution no longer permits the execution of individuals sentenced to death for crimes committed prior to the enactment of P.A. 12-5.

Which is it.  The Connecticut Constitution won't allow it.

Eleven men now have their sentences commuted from execution to death by natural means.  And under particularly horrific conditions, one assumes, since that's what P.A. 12-5 set up going forward for those who might have otherwise been sentenced to be killed.

There were three dissenting opinions (here, here, and here - Connecticut's court website doesn't provide a single link to the whole thing, sorry).  Each, excoriates the majority for what might charitably be called lawlessness.  Which maybe it is and maybe not.  Depends on where you stand, I suppose.  What the court does, pretty much by definition, comports with the state law because the state law is what the court says it is.  And the justices in the majority surely thought, just as strongly as those in dissent thought otherwise, that they were doing what the law told them to.

There were also two concurrences.  The first, by Justices Norcott and McDonald, bemoans what the issue before the court does not allow them to do, and its resolution will never allow them to do (though they go ahead and do it): take on the racism that inherently infects and at least in part controls the death penalty, and implicitly the whole criminal justice system.

[W]e write separately to express our profound concerns regarding an issue of substantial public importance that will never be resolved by this court in light of the majority’s determination that the imposition of the death penalty is an unconstitutionally excessive and disproportionate punishment. Specifically, we cannot end our state’s nearly 400 year struggle . . .  without speaking to the persistent allegations of racial and ethnic discrimination that have permeated the breadth of this state’s experience with capital charging and sentencing decisions.

In the second, Justice Eveleigh cuts to the heart of the moral issues involved, though he addresses them in legal terms.

Vengeance has no place in the orderly administration of justice by a civilized society. It certainly can never serve as the justification for the death penalty in today’s world. My review of the text and legislative history of the public act under consideration, No. 12-5 of the 2012 Public Acts (P.A. 12-5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death row to be executed while eliminating the death penalty for crimes committed in the future. Because I conclude that there is no longer any valid penological purpose justifying the retention of the death penalty for prerepeal defendants, and that our capital sentencing statutory scheme no longer guards against arbitrariness, it necessarily follows that the portions of P.A. 12-5 that allow the men on death row to be executed are violative of the federal and state constitutional bans against cruel and unusual punishment. 

A friend, who's done a lot of capital litigation over the years, told me once that "the death penalty brings out the worst in everyone."  I'm not sure he's wrong. Ending it is no panacea for our bad instincts.  The system is still racist, still driven by vengeance, still unimaginably cruel, still far more concerned with getting it done than with getting it right, still . . . .

But in this one way, by this act, Connecticut moves forward just a bit.  Out of what Norcott and McDonald call (in the words I purposely omitted from the quote above so I could quote them for the first time here) "the macabre muck of capital punishment litigation," 11 lives are saved with the stroke of a pen.  The Talmud teaches (and there's argument about it, as there is about pretty much everything the Talmud teaches) but go with this version:

[W]hoever preserves the life of a single human being . . . it is as if he had preserved an entire world.

Eleven times over, Connecticut.

Amen.

UPDATE
And see Connecticut's own, Gideon and Norm Pattis.

Dog Bites Man

I was teaching a breakout session on doing appeals in death penalty cases when Marty G came into the room, apologized for the interruption, but said he'd just heard the news that the jury came back with the decision that Joshua Komisarjevsky should be killed in revenge for the murders of Jennifer Hawke-Petit and her daughters, Michaela and Hayley.  He, thought, he said, that I'd want to know.

I thanked him for the news report, but the truth is that I already knew.

I knew during each of the five days the jury was deliberating.  I knew during every day of the mitigation phase of the trial.  I knew during the culpability phase, just as I knew that Komisarjevsky would be found guilty of the murders and the other offenses charged as a consequence of the pillaging at Dr. Petit's home.

I knew even before the trial.  I knew during the interregnum between the time his co-defendant Steven Hayes was ordered killed and the time Komisarjevsky's own trial began.  I knew while Hayes was on trial, just as I knew what the jury would say about Hayes.

I knew all that.  But I also knew it might not happen.

As I often tell people when I teach at death penalty seminars (and sometimes just when I'm having a cup of coffee or an adult beverage with them), if a win is when the state doesn't get to murder your client (and if you don't get that, then you probably aren't cut out for capital defense work), then the simple fact is that there's no case that can't be won.

Not every case will be won, of course (though that's a different point (and another part of what you need to be able to deal with if you're going to do capital defense work), but there's no case that can't be.  Still, some will be tougher than others.  Some less likely.

Joshua Komisarjevsky was going to be sentenced to be killed.  The crimes, the outcry, the media circus. And of course the Avenging Angel Dr. Petit.  Komisarjevsky would be sentenced to be killed.  I knew that, though it's possible my knowledge could have been faulty.

I also know that there's at least an even chance he won't actually be murdered by and in the name of the people of the State of Connecticut.  Same for Steven Hayes.  The sentence of death, a nominative thing (in linguistic-literary-philosophical-critical terms a "speech act") may or may not prove itself coterminus with the reality of an execution.  Connecticut has killed only one person, Michael Ross, in this modern era of the death penalty.  Ross was a volunteer (a term it appears that Antonin Scalia didn't know until oral argument in Martel v. Clair on Tuesday.  And still it took years to kill him.  So I don't count on Connecticut getting to murder Komisarjevsky.  In fact, I think it's unlikely.

But absent a true miracle (hey, it's the Christmas season, folks; just walk into a store and listen to the piped in carols), Komisarjevsky will die.  That's a sentence we all have.  The difference is that he will die in prison.  Most of us won't.

Scott Greenfield, approaching the same point from a different direction, puts it this way of Komisarjevsy, of Hayes, of all those who are sentenced to die, whether the sentence be death in prison or murder by prison guards.

Either way, if they are guilty, they get the death penalty, and people of all religions can come together and pray.  No matter which faith captures you heart, there is no choice but death.  And it's not entirely clear that one is worse than the other.

Which is true, though to those of us who plow the bloody soil of state murder the difference matters greatly.

I've never met Joshua Komisarjevsky (or Steven Hayes or any of the Petit family, for that matter).  I've had nothing to do with the cases.  I don't practice law in Connecticut, have only been in the State once in the past 25 or more years.

But it didn't take on-the-scene familiarity to know what the jury would say.  And it doesn't take much to see what the future might hold.

Death is different.

You can ask Joshua Komisarjevsky.  

Or his lawyers.  Who could not stop the words, though they may prevent the deed.

Or Dr. Petit, who may yet be cheated of a portion of his vengeance.

And a Little Child Shall Lead Them - Unless the Judge Won't Let Her

A Connecticut judge will hold a hearing later this month to determine whether a 9-year-old girl can testify about her father -- who has called a "monster" in newspaper headlines -- in an effort to save him from being sentenced to death. 

So reports Anne-Marie Dorning for ABC News.   Which raises the basic question:

What the fuck?

It's maybe relevant that the father here is Joshua Komisarjevsky who, along with Steven Hayes, raped and pillaged and burned and killed in the home invasion of the Petit family.  No, really it isn't relevant who the father is except that by all accounts he loved his daughter.  

OK, the kid is 9.  In Ohio, that would mean that the judge ought to determine whether she's competent to testify.  That's because of Ohio Evidence Rule 601 which says 

Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.

The Ohio Supreme Court said that to decide whether a child is competent to be a witness, the judge must hold a hearing and then consider

(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. 

I'm not a Connecticut lawyer and don't know whether Connecticut has a similar rule.  But whether it does or not, the girl's competence apparently isn't the issue the judge will be taking up. Instead, the judge will be trying to decide, or so it appears from Dorning's report, whether letting her testify will be in the child's best interest.

An attorney hired to represent the girl, Raymond M Hassett, would not say whether or not he is in favor of the girl testifying, although he has submitted a motion to quash the subpoena. But Hassett told reporters outside the courtroom today that they "shouldn't read too much into that" because he would "leave it up to the court to weigh all the factors."
Those factors would no doubt include the psychological impact on the girl of testifying and the type of questions she would have to answer. Blue is expected to hear testimony from a mental health professional during the closed door session on Nov. 14.
. . .
A number of studies have been done on the effects of testifying in a trial on children. "Criminal court testimony is associated with fear and anxiety for a substantial subset of children," according to a study done in the 1990's at University of California, Davis. "The adversarial, formal, and possibly even hostile court environment during a hearing and especially a trial is a source of a child witnesses' fear and distress."

The law is, at least formally, solicitous of what it grandly refers to as "the best interests of the child."  (That's the law, not necessarily judges, as anyone who's seen the horrible video of a judge beating his 16-year-old daughter, like Mark Bennett I couldn't watch the whole thing, can attest.)  And I suppose it might be hard on a 9-year old girl to get on the witness stand, look at a dozen jurors and a courtroom filled with haters and reporters and Dr. Avenging-Angel Petit and they all think her dad is, well, monster is probably too positive a term, and say to them 

Please don't kill my daddy.

Sure that might be tough on the kid. Dorning reports that

[a]lthough it is becoming more common for children to testify in court, it is almost unheard of for a child to testify in a death penalty sentencing hearing. 

Almost, perhaps.  But not unheard of.  We did it in a case about 10 years ago, though only after serious debate and with great care.  It's the sort of thing that can easily backfire.  If the jury thinks it's a cheap trick at the expense of the kid, that's just one more reason to think the father deserves to die.  On the other hand, it can be, and was in the case where we did it, incredibly moving testimony.

But all of that is, ultimately, beside the point.

Here's the point.  Komisarjevsky has a right, an absolute right, to provide the jury with any evidence relevant to whether the death penalty is appropriate in his case.  As the Supreme Court explained in Lockett v. Ohio, at a capital sentencing proceeding, the defendant must be allowed to present and the jury allowed to consider

as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

And of course the Sixth Amendment assures him the right

to have compulsory process for obtaining witnesses in his favor

Really, there's no question that the law allows him to call the child as a witness.

But what about what's good for the child?  Doesn't that matter?  What about this story reported by Dorning?

In 2001, in Los Angeles, four children were called by a prosecutor to testify against their father, Marco Barrera, who had been convicted of killing several of his other children. The situation caused outrage among child advocates.

Yeah?  What about it?

First, the prosecutor doesn't have a constitutional right to put on whatever evidence it might like that the guy should be killed.  Second, and really this shouldn't be hard to grasp, there's a difference between asking a child to urge the jury to save her father's life and asking it to kill her father.  Damn right that those advocates were outraged.

But even if they'd be outraged by Komisarjevsky calling his daughter, it shouldn't matter.  The law really is clear that he has a right to do it.

I said before that I'm not a Connecticut lawyer.  I also have no inside information about the defense strategy.  And I haven't read any of the filings in the case.  I don't know, except what I can glean from the press reports, why the judge has called for a hearing, what's on his mind, or what issues have been raised regarding the child's possible testimony.  What I know is that the law on the subject is remarkably clear.

Komisarjevsky's aunt testified that his execution "would not be good for his daughter."  

And so I have to tell you about Brian and Barbara Siler and their son Nathan and the Honorable Jeffrey Runyan.

In 2001, Brian Siler brutally murdered his estranged wife Barbara.  During the investigation of the crime, police took statements from the couple's three-year-old son Nathan.  

an officer testified to those statements at trial, and they pretty much assured Brian's conviction of aggravated murder with death specifications.  The jury said Siler should die, but Judge Jeffrey Runyan thought otherwise. 

In sentencing Siler to death in prison (LWOP), the judge explained in thorough and moving detail, why the aggravating circumstance did not outweigh the mitigating factors and how it is that a death sentence would disserve the memory of Barbara Siler.

Then he said this.

The final and determinative mitigating factor is Nathan Siler. Nathan is the one party here who bears no responsibility whatsoever for his mother's death.
The court must inquire objectively what sentence is in the innocent Nathan's best interests?
At some point in his future, Nathan will undoubtedly begin to blame himself for his mother's death. Is there something I could have done, he will say. That's human nature. But there is nothing young Nathan could possibly have done to save his mother.
Now young Nathan's words through the testimony of an officer have convicted his father. But today this court stands between young Nathan and the thought that he has caused his father's death as well. That would be a result of this case that is unthinkable.

Every Day a Little Death

It was November last year that a jury in Connecticut determined that Steven Hayes should be killed in revenge for the horrors he inflicted on  Jennifer Hawke-Petit, her daughters, Michaela and Hayley.  And on the survivor of the depredations Dr. William Petit (husband to Jennifer, father to Michaela and Hayley, avenging angel to all three).

I followed the trial, and especially the punishment phase, with some care.  I wrote several times about the case, about the jurors, about how despite their apparent basic decency, they all became complicit in a murder.  I wrote about how they were damaged by the trial, how they too became victims of Steven Hayes and William Petit and the madness of the Connecticut prosecutors and of our death system.

At which point it was time to do it all again. 

Same crimes, essentially the same evidence.  But different lawyers, different lawyers, and a different defendant.  This time it would be Joshua Komisarjevsky, the co-defendant.

Today Komisarjevsky was found guilty.

It cannot have been a surprise to anyone who paid even a bit of attention to what went on in New Haven Suprerior Court these last couple of weeks.  The evidence was much the same as the evidence against Hayes.  And while each blamed the other, the evidence shows that each was culpable.

Now it's time for part two.  Kill or not.

Komisarjevsky's jury (they are, ineluctably, his) will convene again on the 24th.  They will hear additional evidence and argument.  And they will decide whether Komisarjevsky should stay in prison for the rest of his natural life or only until he can be murdered.

It is grim, this business of deciding what to do with a man's life.

* * * * *

I received word today of an old friend, one who was seemingly riddled with cancer, who has been for a couple of years now fighting and clinging to life with passion and energy, with a strength almost beyond comprehension.  She had cancer.  Then more cancer.  And then more.  

Today, as I said, I received word that she is, amazingly, miraculously, apparently cancer free.  "No signs of cancer anywhere" say the doctors.

Perhaps it's just for the day, the week, the month.  Perhaps it's a cosmic practical joke and in six months she'll be dead, all the cancers returned.

But for today, at least, she's cheated death.

* * * * *

Joshua Komisarjevsky should be so lucky.  The odds are that the jury will determine that he should be murdered.  If so, if they do, it won't be a swift killing.  If it occurs at all, it will be years possibly decades from now.  After lawyers and courts have wrangled and argued again and again.  Dr. Petit will relive the agony.  He will, perhaps, hold more press conference, make more statements, continue to be the avenger.

And Joshua Komisarjevsky will wait.  As will Steven Hayes.  And someday.  Maybe.

* * * * *

The taxpayers of Cuyaoga County in Ohio spent something close to a million dollars (I'm guessing, I have no actual information, but it's an educated guess and probably right) to put Anthony Sowell on death row.  He was, you'll recall, convicted of raping and murdering 11 women.

The trial lasted weeks.  I am given to understand that there are over 13,000 pages of transcripts and about 7,000 pages of motions, briefs and orders.  The trial judge, as Ohio requires, appointed two lawyers to represent Sowell on his appeal.  Each of those lawyers is certified by the Ohio Supreme Court to accept appointed appeals in cases where the death penalty has been imposed. They are, that is, specially qualified.

Each must now read and digest all 20,000 pages.  Together they will decide upon issues to raise on appeal.  They will conduct research.  They will write and file a brief, likely a couple of hundred pages long.  They will reveiw the state's response.  They will write a reply.  They will prepare for oral argument before the Ohio Supreme Court and then travel to Columbus to present it.

All of that will consume, literally, hundreds and hundreds probably thousands to be honest about it, of hours.  20,000 pages, for godssake.  Did I mention that they'd have to do all that on fairly strict timetables?

Cuyahoga County paid something close to a million dollars to put Sowell on death row.  The two lawyers who are to represent him on appeal are, it seems to be paid no more than $5,000.  No not each.  A total of $5,000.  That comes to $2,500 each.  That would be about 12.5 cents a page.  With no pay for taking notes, internalizing, researching writing, reviewing, preparing, traveling, arguing.

And of course no money for the cases they will have to turn away, the practices they will have to shut down in order to meet the timetable demanded by the court.

Sowell has a constitutional right to effective assistance of counsel on this appeal.

At 12.5 cents a page.