Jan. 26 CONNECTICUT: On To High Court----POSSIBILITIES: Execution Friday Or New Hearing In Weeks A federal appeals court Tuesday refused to restart the clock on serial killer Michael Ross' execution, setting the stage for a last-ditch battle in the U.S. Supreme Court to determine if Ross will survive the week. The 3-judge panel turned back an appeal by state prosecutors, who had sought to lift a stay of execution imposed Monday by Chief U.S. District Judge Robert N. Chatigny. Ross, who has said he wants to die, had been scheduled to be executed at 2:01 this morning, but state correction officials have postponed the execution twice amid a frenzy of legal wrangling. The execution is now set for 2:01 a.m. Friday, but will take place only if the U.S. Supreme Court quickly intervenes and overrules the U.S. 2nd Circuit Court of Appeals decision. State prosecutors say they will file papers with the high court today. If the Supreme Court does not order the execution back on track, the case will come back to Chatigny's courtroom for a full hearing to determine if Ross is mentally competent to forgo further appeals of his death sentence. It could be weeks before that hearing is held, a lawyer in the case said, and it is unclear if Ross will agree to participate. Prosecutors went to the 2nd Circuit Court Tuesday seeking to overturn Chatigny's decision to halt the execution and hold a competency hearing for Ross. Chatigny, breaking with other judges who have ruled on Ross' mental state, said there were unanswered questions about the 45-year-old prisoner's long isolation on death row. He said those conditions could have created psychiatric problems that drove Ross to choose death. Despite the life-and-death consequences, Tuesday's hearing focused mainly on the narrow question of whether the public defenders - over Ross' objections - had standing to get involved in the case and challenge the rulings on Ross' mental state. The Connecticut Supreme Court and a federal judge already had ruled that Ross is mentally competent, which set up a legal Catch-22 for the public defenders. To challenge those findings and argue that Ross is mentally incompetent, the public defenders needed a judge to give them "next friend" status, enabling them to participate in court on Ross' behalf. But the law permits the granting of "next friend" status only when a defendant has been deemed mentally incompetent. Supervisory Assistant State's Attorney Harry Weller told the appellate panel that Chatigny should not have permitted the public defenders to challenge Ross' competency rulings, saying that legally, they were merely a "third party who want to meddle in the case" after Ross' competency had already been established. Hartford lawyer Hubert Santos, who is working with the public defenders, countered that the state courts had unfairly excluded the public defenders from participating in the competency hearings, leaving lawyers for the state and Ross both arguing to let him die. Santos said no court has fairly considered the public defenders' claim that conditions on death row have contributed to Ross' desire to die. "A government can't say, 'We're going to give you the death penalty,' and then put you in conditions that are so unbearable that you don't fight," Santos told the judges. During the 45-minute oral argument, the panel frequently interrupted to pepper the lawyers with questions. Judge Robert A. Katzmann asked Weller why a full competency hearing would be a bad thing. "The question is, when somebody is about to be executed, what's the harm in having a hearing that assures that all of the evidence that is meaningful is put to the test?" Katzmann asked. It may have been intended as a rhetorical question. But Weller replied that such an outcome would harm the principle that courts cannot intervene where they do not have jurisdiction, and that it would violate Ross' constitutional right to end his appeals. Nevertheless, the appeals court panel ruled after an hour of deliberations that Chatigny had jurisdiction to consider the public defenders' request for "next friend" status, and that to do so, a competency hearing would have to be held. "It was premature for the district court to determine `next friend' standing in the absence of the proceedings it has now ordered," the panel wrote. "We thus conclude that such proceedings on Ross' competence are appropriate as part of the district court's effort properly to decide the issues of standing and jurisdiction." The appeals court urged Chatigny to hold the hearing "as expeditiously as is reasonably practicable" and gave the judge fairly specific guidance on how he should proceed once the hearing is held. The court wrote that if Chatigny finds Ross mentally competent, it is their understanding the public defenders' petition will be dismissed. If Chatigny finds that Ross is not competent and the public defenders do have standing, the panel said, Chatigny should consider the petition on its merits, overturning the state court rulings only if they were contrary to federal law as interpreted by the U.S. Supreme Court, or if they were unreasonable in light of the facts. Tuesday's ruling at the 2nd Circuit Court of Appeals continues a frenetic and emotional week as state officials, victims' families and 1 death-row inmate prepare for what would be New England's 1st execution in more than 40 years. Ross, who has admitted killing 8 women and raping most of them, was sentenced to death for 4 of the murders. After the Connecticut Supreme Court affirmed the sentence 8 months ago, a judge set an initial execution date of Jan. 26, setting in motion the blizzard of legal actions that continues this week. Although Ross' life is on the line with those court battles, he was not officially a party to Tuesday's appeals court hearing, leaving his private lawyer, T.R. Paulding, to seek advice from court clerks on where in the courtroom he should sit. He ultimately settled into a chair near the prosecutors' table. "I'm just here because it's moving so fast that if they have questions like, `Does Mr. Ross still want this to happen?' I can at least answer that for him," Paulding said before the proceedings began. The panel had no questions for Paulding, who told reporters Ross has not changed his mind. "He is adamant and he is resolute that he does not want to see this stayed," Paulding said. "As of [Tuesday] morning, he wanted the execution to go forward." Paulding said he and his client have not decided if Ross will participate if the competency hearing is held. He said he was not surprised by the panel's decision to delay the execution, given their questions during the hearing, and he said he thought he could predict the reaction of his client, who, but for the ongoing courthouse battles, would be dead now. "I'm sure he'll be disappointed," Paulding said. A discussion of this story with Courant Staff Writer Matthew Kauffman is scheduled to be shown on New England Cable News each hour today between 9 a.m. and noon. *********************** Review To Make Countdown More Tense Even as lawyers were returning to Connecticut from the federal appeals court in New York Tuesday evening, and prosecutors were vowing to appeal the stay of Michael Ross' execution to the U.S. Supreme Court, the nation's highest court was in conference on another scheduled execution. The justices were meeting behind closed doors to decide whether the Texas execution of Troy Kunkle, 38, would go forward. As the justices reviewed the case, Kunkle - convicted of a robbery-motivated kidnapping and murder when he was 18 - sat in a holding cell next to the death chamber in Huntsville and awaited the outcome. The execution was less than an hour away. Connecticut also may face a tense waiting game as it counts down to its first execution in nearly 45 years. Correction officials Tuesday night postponed Ross' execution for the 2nd time in 2 days; it is now set for 2:01 a.m. Friday. Under the original schedule, he was to have been put to death by lethal injection at 2:01 this morning. Prosecutors today will file motions with the U.S. Supreme Court, asking the justices to reverse the U.S. 2nd Circuit Court of Appeals ruling that affirmed the stay of execution issued Monday by Chief U.S. District Judge Robert N. Chatigny. The federal appeals court said Chatigny could proceed with a hearing on whether Ross was mentally competent to forgo further appeals, a hearing sought by Ross' former public defenders. Attorney Jim Marcus is executive director of Texas Defender Services, a nonprofit group that represents death row inmates. Tuesday night he was monitoring the outcome of the Kunkle conference. He said the high court handles death penalty reviews routinely and expeditiously. "The Supreme Court has experience in dealing with these cases under severe time constraints," Marcus said. "Keeping track of the legal developments and arguments below enables them to expedite the review." The appeal in the Ross case filed today by Chief State's Attorney Christopher Morano will go first to Justice Ruth Bader Ginsburg, who is circuit justice for the 2nd Circuit Court. The public defenders will have hours to reply. The lawyers may file electronically or fax their documents. The petition is expected to be referred to the full court, which will make a decision based on the briefs submitted and the high court's own monitoring of all the litigation that has preceded the appeal. One staff attorney for the high court, Troy Cahill, focuses on the swirl of appeals and petitions as execution dates near. Death penalty experts say it would be unlikely, or undesirable, for the high court to upset the 2nd Circuit's decisions, but said they would not rule it out. "Anyone who's on the side of not executing Michael Ross won't really be able to breathe easy until [the justices] entertain it," said attorney Stephen Bright, director of the Southern Center for Human Rights, which handles numerous death penalty appeals. "The 2nd Circuit is highly respected," Bright said. "On the other hand, this [U.S. Supreme] court has been a very activist court when it comes to the death penalty. ... They've shown a willingness to get involved in cases at times when it seems very inappropriate. This would be one of those times." Bright said he knows of cases in which a stay of execution was issued at 5 p.m. and the high court vacated it by 10 p.m.; the person was promptly executed. "The court will certainly act before the time expires for Ross to be executed," Bright said. Ross, 45, has opted to forgo appeals still open to him and "volunteer" to be executed. In a 4-hour videotaped interview on Dec. 15 with Dr. Michael Norko, a psychiatrist, Ross - a Cornell University graduate - appears lucid and eloquent and exhibits a command of death penalty case law and the issues he still could raise. Bright said volunteer cases are the hardest to represent in stays of execution that reach the U.S. Supreme Court. "If the court perceives a case as being the fellow wants to be executed, and other people are preventing, that could certainly influence the court's decision," Bright said. "If they're able to argue the standing issue in a way the court finds convincing, that could certainly be a factor. "Look at all the time that's been put into this case so far, yet the ultimate decision will be made by the Supreme Court, with little time devoted to it by the justices," Bright said. Marcus doubts the high court will vacate the Ross stay. "To overturn the 2nd Circuit's decision, the court would have to find the [panel] abused its discretion, and that's a pretty high standard," Marcus said. "The Supreme Court would have to conclude the 2nd Circuit stepped outside the bounds of permissible action. They would have had to go off the charts for the Supreme Court to overturn that decision." Kunkle, meanwhile, had a long, tense wait. 90 minutes after he was scheduled to be executed, the justices were still conferencing. He was scheduled to be executed Nov. 18, but the U.S. 5th Circuit Court of Appeals entered a temporary stay. The appellate court lifted the stay on Dec. 13, and a new execution date was set. Texas correction officials received word from the high court at about 7:50 p.m. Minutes before 8 p.m. local time, Kunkle learned his execution would proceed: The Supreme Court voted 5-4 not to block it. Kunkle was pronounced dead at 8:12 p.m. Ross' execution date of Jan. 26 had been set by Superior Court Judge Patrick Clifford in New London on Oct. 6, 2004. State Correction Commissioner Theresa Lantz has the authority to delay the execution by up to five days. Although she could postpone it to as late as 2 a.m. Monday, several people close to the process doubt she would postpone beyond Friday. To do so would implicate Sabbath days of several faiths, and most preparations for a Monday execution would take place on Sunday, under the department's detailed protocols. (source for both: Hartford Courant) ****************** Death Penalty? Here? Get Real In the meandering on Michael Ross, it has come to this: A deranged killer must prove his mental "competence" in order for the state to off him. Maybe I'm prejudging, but when you confess to killing 8 girls and young women in Connecticut and New York and raping most of them, your mental faculties are not what's at issue. Just your guilt. And of that, there is no doubt. If you're keeping score on Ross' competency, 3 times a court has deemed him capable of comprehending his decision to waive hearings that could hold off the death penalty. Enough. Now, federal Judge Robert N. Chatigny wonders if Ross' 18-year stay on death row has psychologically damaged him and impaired his reasoning abilities. Of course it has. But so what? There's this misguided logic that only sane killers should be put to death because insane ones don't grasp the consequences of their actions. Please. Connecticut doesn't have to be Texas, where slightly more than 300 inmates have been executed since 1990. But if it's going to give any credibility to having the death penalty on its books as punishment for particularly heinous crimes, zero executions in 45 years doesn't cut it. At this pace, Ross, 45, will die of old age before he's given a lethal injection. For the record, I've never been a staunch advocate of the death penalty. The system across the country has been fraught with discrimination, economic class issues and incompetence. The advent of DNA testing has exonerated many who had been convicted and sentenced to death. All I'm saying is let's end the charade in Connecticut. The death penalty here is not serving as a punishment or deterrent. It's not bringing closure to victims' families. What it is doing is taking up an inordinate amount of time and resources for one of the 16,000-plus troubled souls in the state prison system. No question, Michael Ross will never be the poster child for why the death penalty should be abolished. To the contrary, his crimes were so sadistic, so despicable, that many in Connecticut who oppose capital punishment want to see the state put him to sleep. This is worth saying again: If you can't execute a guy who admitted to committing multiple murders, who was convicted by a jury and sentenced to death and who says he wants to die, then who exactly do you "punish" with the death penalty? "The entire statutory scheme is hopelessly confused and frustrating for those in favor and against the death penalty," said Sen. Andrew J. McDonald, D-Stamford. He is co-chairman of the legislature's judiciary committee, which will begin debating the death penalty issue Jan. 31. "You've got a thicket of legal and moral issues where there is no exit." No exit and no consensus to simply say this thing is not working. To rescind the death penalty, in the mind of some lawmakers, would be perceived as being soft on criminals. So, we do this protracted and flirtatious slow dance - leading the victims' families on, while winking at death penalty opponents to let them know their delay strategies can have sway. I've done a 360-turn on the Ross case. Initially, I thought there was no way he'd be the first state inmate executed in nearly five decades. But when Gov. M. Jodi Rell said she wouldn't hold things up, it looked like Ross was done for. Then along came Judge Chatigny. Now, I'm back to my first inclination. It ain't gonna happen. For those hell-bent on justice, hey, life in prison - with no parole - is essentially a death sentence. (source: Column, Stan Simpson, Connecticut Now) *************** Unnecessary execution Michael Ross is unquestionably guilty of vicious murders, but his execution in Connecticut would do nothing to enhance public safety. New England is one of the safest regions in the country, even though the death penalty was last administered in 1960. Joseph (Mad Dog) Taborsky, who was executed back then, was just as vicious as Ross. He was dispatched via the electric chair, with few of the appeals and legal arguments now being used for and against the Ross execution. In the intervening 45 years, a change in popular thinking in New England has practically eliminated the death penalty. New Hampshire also still has it on the books, but has not imposed it since 1939. Thirteen months ago, Gary Lee Sampson was sentenced to die for two murders in Massachusetts, but that case, now on appeal, was decided in federal court. Executions have no significance in the criminal justice system of the six states except as a brutal oddity. Virtual abolition has had little effect on the murder rate. Connecticut's is the highest in the region -- at 3.0 per 100,000 according to statistics compiled by the FBI for 2003 -- but still far below the national figure: 5.7 per 100,000. Virginia and Texas, where executions are commonplace, have murder rates of 5.6 and 6.4, respectively. The death penalty is not a deterrent. Ross terrorized eastern Connecticut in the early 1980s by killing several girls. He says he wants to die to bring peace to the victims' relatives. Edwin Shelley, a father of one, wants him executed. "It's part revenge, it has to be," Shelley said. Connecticut Governor M. Jodi Rell cited a letter from Shelley as the reason she did not grant Ross a reprieve. Shelley still carries a deep grief from the death of his daughter Leslie, 14, in 1984. It is understandable that he would want to watch as Ross is injected with deadly chemicals. But the justice system cannot be shaped totally by the emotions of victims or relatives. In other cases, they might insist on death where guilt was not clear-cut. Nor should the criminals' wishes bear on punishment. The Connecticut system of justice should decide the case for its impact on society as a whole. Ross has been in prison for two decades, and continued incarceration would protect the people of the state . Ross was first sentenced to die in 1987, and the latest plan was for the execution to take place today. But on Monday a federal judge imposed a temporary stay while he decides whether or not Ross has the mental capacity to insist on his own death. Justice would be best served if the state abandoned its efforts to execute him, and forced the 45-year-old Ross to linger in prison for the rest of his life (source: Editorial, Boston Globe) GEORGIA: Georgia execution brings closure for murdered teen's family The execution of a 34-year-old man in Georgia served as final justice to a mother who waited more than a decade to see him pay for killing her teenage son. The condemned man, too, said beforehand that justice was being done. Deniese Cail watched from behind a glass partition as Timothy Don Carr was given a lethal injection Tuesday night for fatally stabbing 17-year-old Keith Patrick Young and beating him with a baseball bat as he pleaded for his life during a robbery in 1992. "The past 10 years for me have been lived by the phone waiting for it to ring and this day to come," Cail said after the execution. She said the punishment was fitting the crime. "It's finally over for my family," Cail said. "He's gone and he didn't go to the same place as my son. My son is in heaven, he's not." The victim's uncle, Nick Young, said the execution brought closure to the family. "What we've been through is living hell," he said. Carr was given a lethal injection at the state prison in Jackson for killing Keith Young on Oct. 8, 1992. He was pronounced dead at 8:37 p.m. "It's time for justice to be served," Carr said in a final statement issued by the prison before the execution. He also apologized to the victim's mother for any grief he may have caused her and told his family that he loved them. Just before the chemicals were administered, Carr was asked if he had anything more to say. He uttered the word "Peace." As the chemicals were pumped into his veins, Carr's eyes were closed and his chest heaved several times. He gasped slightly and slowly died. Last-minute appeals and a clemency petition to the state parole board failed. The U.S. Supreme Court delayed the execution for about an hour while it considered a final request for a stay. The stay was denied. Carr's execution was Georgia's 1st in 2005 and 37th since the U.S. Supreme Court reinstated the death penalty in 1973. Carr's lawyer and family were at the prison earlier Tuesday but left before the execution. The lawyer, Brian Kammer, did not immediately respond to a telephone message and e-mail left by The Associated Press seeking comment. Prosecutors say Carr, girlfriend Melissa Burgeson and two 16-year-olds drove Young in his car to a remote area near Bolingbroke, about 65 miles southeast of Atlanta. There, Carr slashed Young's throat at Burgeson's urging and beat him in the head with a baseball bat. The 2 juveniles later testified that the victim pleaded for his life. The couple fled to Murfreesboro, Tenn., in the victim's Pontiac Grand Prix, and were arrested there following a high-speed chase. Carr was convicted in 1994 and sentenced to death. Burgeson was given a life sentence with the possibility of parole. The 2 16-year-olds were tried in juvenile court. At Monday's clemency hearing, defense lawyer Kammer asked the parole board to stay Carr's execution for 90 days or to commute his sentence to life in prison. Kammer argued his client received a disproportionate sentence to Burgeson's and that prosecutors portrayed Carr as less culpable in Burgeson's trial, but more culpable during his trial to obtain a death sentence. Kammer also told the parole board that jurors in the Carr trial were unaware of Burgeson's lighter sentence and of her role in the killing, or Carr's family history or mental illness. A court-appointed forensic psychologist who examined Carr said in an affidavit Friday that Carr was mentally ill when he committed the crime and had recently ingested "massive quantities of hallucinogenic mushrooms." (source: Associated Press) KANSAS: Worth it?----Fix Kansas' death penalty, if possible Sedgwick County District Attorney Nola Foulston said this week that Kansas should defend its death penalty law "with all the confidence of a warrior." But the law doesn't inspire that much confidence. The Kansas Supreme Court ruled last month that the state's death penalty statute is unconstitutional because of its provision that in a capital murder case where mitigating and aggravating circumstances are about equal, juries should impose death. The court ruled that such a weighting factor unfairly tips the scales of justice against defendants. This problem should lend itself to a quick technical legislative fix. The bind is that if the Legislature acts now, some -- including Ms. Foulston -- think it's less likely that the state will get a chance to appeal the ruling before the U.S. Supreme Court. And without a successful appeal, they point out, the six men now on Kansas' death row -- including 5 from Sedgwick County cases -- would have to be resentenced, and could receive no harsher penalty than life in prison. It's a bad situation. Then again, the prospects of even getting a hearing before the U.S. Supreme Court are remote, according to Kansas Attorney General Phill Kline. And even then, there's no certainty that the court would rule in Kansas' favor. This mess further suggests that Kansas should be moving away from the death penalty, as many states are doing. It's nearly impossible to administer the law with the consistency and equity that this irrevocable punishment requires. In truth, Kansas has never been a fervent death penalty state: The last execution was in 1965, and no one has been executed since a reinstatement of the law in 1994. Yet the state continues to spend an average $1.2 million to prosecute each death penalty case. Gov. Kathleen Sebelius signed a law last year giving juries the option of imposing life without parole. It's a credible alternative to the death penalty that ensures tough punishment and takes criminals permanently off the streets, while saving taxpayers $400,000 to $500,000 per trial, according to legislative auditors. In the short term, the Legislature should go ahead and fix the current flaws in the state's death penalty -- including changing the law to prevent the execution of the mentally retarded. And before going on the warpath, the Legislature should consider how much time and money are worth investing in this questionable and costly form of justice. (source: For the editorial board, Randy Scholfield, Wichita Eagle) OHIO: Did someone get away with murder? You don't have to care about John George Spirko Jr. to care whether Ohio executes him. You only have to care about justice. If you read the powerful 3-part series by Plain Dealer reporter Bob Paynter about the murder of Betty Jane Mottinger, you might have come away relieved that Spirko is in prison. He's the kind of guy you want behind bars. Cocky, conniving, creepy. He once served time for strangling a woman. The question is whether he deserves to die for this murder, a murder he very possibly didn't commit. Someone kidnapped Mottinger from the Elgin, Ohio, post office on Aug. 9, 1982. Someone stabbed her more than a dozen times, wrapped her in a painter's drop cloth and dumped her in a soybean field. The investigators on the case had never heard of Spirko. Not one clue pointed his way. No physical evidence. No fingerprints, no weapon, no DNA. Spirko contacted authorities, hoping to win lenient treatment for himself and his girlfriend in unrelated cases. He told a story using facts from the news. They listened, because all they had was an "eyewitness" who had seen a stranger the day Mottinger vanished. When they searched Spirko's belongings, they found a photo of Spirko's old cellmate, Delaney Gibson. The "eyewitness" identified Gibson as the mysterious stranger. The investigator said as much to Spirko, so Spirko said Gibson killed the woman. But prosecutors later learned that Gibson couldn't have done it. He was 500 miles away. They had photos and receipts to prove it. This new evidence contradicted the old and would ruin their case against Spirko, so they buried it. That's right. They not only ignored the evidence, they hid it from the defense. They told the jury a story they knew to be false. Why let facts get in the way of a guilty verdict? After all, the public wants to feel safe, prosecutors want to look good, and police want to catch the crook. Prosecutors used the Gibson link to help convict Spirko, yet they never put Gibson on trial. In court, an investigator said Spirko admitted killing the woman. The investigator never wrote that in his notes. Never taped his interrogations. Never produced a signed confession or initialed statement. But who believes the bad guy? Here's something else to consider: If Spirko didn't do it, someone got away with murder. That someone could be a former house painter who lived near the soybean field where the body was found. Seven years ago, John Willier told prosecutors in Wyandot County that his old boss Dale Dingus killed the woman after a botched heroin pickup at the post office. That could explain the drop cloth around the body, why someone would kill a postal worker, why Willier's neighbor saw 3 men with a small, attractive woman in a car that matched one seen at the post office. Who killed Mottinger? We know Spirko is the kind of guy who could have, but we don't know he actually did. We need to know that without a doubt before we execute him. Something bigger than Spirko's life is on the line. Justice is. Tell that to Gov. Bob Taft, at 77 South High St., 30th Floor, Columbus, Ohio 43215. Or call 614-466-3555. Or log on to www.governor.ohio.gov and contact him at the top of the page. If Ohio executes Spirko, it will be a grave injustice to justice. (source: Regina Brett, Column, Cleveland Plain Dealer)
