April 27 CONNECTICUT: Ross Case Endures In Absurdity Michael Ross' case already had made a mockery of Connecticut's death penalty. Then the farce got worse when yet another round of psychiatric evaluations was ordered. 4 shrinks weighed in. 2 - a court-appointed doctor and one hired by Ross' attorney, T. R. Paulding - found Ross competent. The other 2, hired by court-appointed counsel Thomas Groark, found him incompetent. Superior Court Judge Patrick J. Clifford last week deemed Ross competent, clearing the way - yeah, right - to Ross' scheduled execution on May 11. So, not only is the validity of Connecticut's death penalty, dormant for 45 years, still in doubt, but so, too, is the credibility of the science of psychiatry. We've become immune to seeing "expert" witnesses hired by the prosecution and defense come down on the side of the folks who are paying them handsomely. A bridge collapses, and we can expect engineers to have disparate views on its soundness prior to implosion. A patient is injured in a car crash and sues, and it's not unusual to hear conflicting medical opinions on whether there was a pre-existing medical condition. Or a patient lies in a vegetative state in a hospital bed for years and there are differing opinions on whether this person is still "alive." Is it too much to ask for less divergent interpretations when ruling on a man's competence or sanity? After all, it's only his life that hangs in the balance here. "If there were 4 people involved looking at something like a broken bone, nobody would give it a second thought that there were 4 different opinions" on how best to mend it, said psychiatrist Allan Jacobs of West Hartford. "And there might be a lot of common ground between the four people, but their conclusions could be different. So, I don't think it's as simplistic as saying psychiatry is just hocus-pocus. There's much more emotional stuff involved, especially in this particular case. And people are going to look at it much more critically." Dr. Harold Schwartz, psychiatrist-in-chief at Hartford Hospital's Institute of Living, and Dr. Richard Shulman, a West Hartford psychologist, both thought psychiatry was misused, at times, in the Ross case. Schwartz believes that "death row syndrome" - in which inmates on death row are believed to have suffered such debilitating mental impairment as to cloud their judgment - is a flavor-of-the month type of diagnosis. It has not gone through the rigor of peer reviews or extensive enough research to actually define it with clinical accuracy, Schwartz said. "I find the assertion of this use [of death row syndrome] to be suggestive of an expert who is motivated to achieve a particular goal rather than evaluating the case purely on its psychiatric merits," said Schwartz, who has been paid to give court testimony in other cases. "I find the creation of a wholly new diagnosis like death row syndrome invalidated and created on the basis of no significant research." The latest psychiatric evaluations of Ross were more rooted in his motivations, rather than his mental capacity. Both Schwartz and Shulman said the diagnosis of acute narcissism pinned on Ross should have nothing to do with his competency and his decision to choose death over more appeals. "One thing that this should underscore to the public is that although psychiatrists are being brought in as medical experts, it's clear they're not dealing in the medical realm," Shulman said, adding that neurologists could have been called in to give evidence on Ross' brain. There's only one way to describe the roller coaster that the Ross case has us riding. After his 18 years in prison, we've seen a deranged man insisting that he's competent and wants to die, attorneys with competing positions on his death sentence representing Ross, an 11th-hour delay of execution caused by Ross' attorney and conflicting psychiatric evaluations. This is crazy. (source: Hartford Courant) NEVADA: Death penalty hearing opens in murder case A jury began hearing testimony Monday to determine if a man convicted of tying up and killing, execution-style, 4 young men in August 1998 should be eligible for the death penalty. Donte Johnson was convicted by a jury and sentenced to death row by a 3-judge panel for the murders of Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringer, 20, and Peter Talamantez, 20. Johnson and 2 other men bound with duct tape the hands and legs of the victims and forced them to lay face down before killing them each with a single gunshot to the back of the head in a house the victims had rented together on Terra Linda Avenue in southeastern Las Vegas. The Nevada Supreme Court, however, ordered a new penalty phase for Johnson after the U.S. Supreme Court ruled that only a jury could impose the death penalty. A three-judge panel had sentenced Johnson to death after the original jury could not agree on the penalty. Under most circumstances a jury in a death penalty case would hear testimony from both the families of the victims and Johnson and be told of the defendant's criminal history, but for what is believed to be only the 2nd time in Clark County's history District Judge Lee Gates has ordered that the penalty phase be conducted in 2 components. First, the jury must decide if Johnson is even eligible to be considered for the death penalty. The jurors have been instructed they are to weigh the aggravators in the case against the mitigating evidence presented. The prosecutors have already met the burden of providing an aggravator because Johnson was convicted of killing more than one person. Unlike a jury deliberating about a person's guilt or innocence, a decision regarding death penalty eligibility does not have to be unanimous. Only one juror has to determine the mitigating evidence outweighs the aggravators for Johnson to avoid facing the death penalty. If the jury does find Johnson is ineligible, they will return to court for more testimony and argument before deliberating on Johnson's fate, which would then be a choice between life in prison with the possibility of parole, life without the possibility of parole and a set term of 40 to 100 years in prison. Gates ordered the same model for the penalty phase of Dante Pattison, who was convicted of murdering his sister and grandparents. The jury determined Pattison was not eligible to be considered for the death penalty and ultimately sentenced him to life in prison without the opportunity for parole. Several of the jurors in the Pattison case were visibly disturbed when they heard of Pattison's lengthy criminal history, something they were not allowed to hear until after they had already decided the death penalty would not be a sentencing option. On Monday Chief Deputy District Attorney Robert Daskas said the jury will hear how Johnson bragged about being the man who committed the murders and laughed about how "the blood that squirted from their heads was like the Niagara Falls." Daskas said Johnson believed he "found an easy score" after meeting Mowen at a house where he was temporarily living after Mowen stopped by and talked about following the jam-band Phish during the Summer of 1998. The prosecutor said Mowen and his friends made money to continue following the band by selling food and drugs. "The defendant (Johnson) believed they (the victims) had thousands of dollars in cash and a big stash of the drugs," Daskas said. "The seed had been planted, that this would be an easy score." The prosecutor said Johnson went over to the victims' home with 24-year-old Terrell Cochise Young and 23-year-old Sikia Smith. After tying up the victims, Johnson, Young and Smith proceeded to turn the house upside down, never finding the money and drugs Johnson believed would be there. Daskas said Johnson would later tell police he murdered Talamantez because he "disrespected" Johnson and he went on to kill Mowen, Biddle and Gorringer because they would all have been able to identify him as the man who killed Talamantez. The prosecutor said after the murders Johnson, Young and Smith took a VCR, Sony Play Station and a couple of hundred dollars from the victims' wallets. Daskas said the jury would hear testimony from Johnson's girlfriend who said after the murders Johnson came into the bedroom, kissed her on the cheek and said "you have to go to sleep after you kill somebody." Johnson's attorney, Bret Whipple, said while there was no "excuse or justifiable reason for what occurred on Aug. 14, 1998" there were reasons the jury could show mercy and had the "right to choose life" for Johnson. The defense attorney said Johnson's mother and father were drug addicts and he was raised with 12 other cousins by his grandmother causing Johnson to "slip through the cracks." Whipple said Johnson has children who love him and want to continue their relationship with him, which would obviously not be possible if the death penalty is delivered. Johnson's new penalty phase is expected to continue this morning. Young and Smith were both sentenced to life in prison for their roles in the murders. The Nevada Supreme Court, however, ordered a new trial for Young, saying District Judge Joseph Pavlikowski failed to addresses Young's contention that there was animosity and a lack of communication between the accused killer and his court-appointed lawyer Lew Wolfbrandt at the 1999 trial. Young's new trial is scheduled before District Judge Nancy Saitta on Sept. 12. (source: Las Vegas Sun) FLORIDA: A monstrous injustice It ought to be impossible to imagine an American government that deliberately leaves innocent people in prison. But in Florida, present reality is precisely that savage scenario. In 157 cases across the nation, it has been established to a moral certainty that innocent prisoners can be exonerated by the recent science of DNA testing. Wilton Dedge, the Floridian who lost 22 years of his life for a rape he did not commit, is one of them. Without doubt, there are more prisoners whose innocence cries to Florida's collective conscience. Yet with less than 2 weeks left in this year's session, the Florida Legislature is not only apparently unwilling to compensate Dedge, but it is also failing to extend an Oct. 1 deadline to file testing petitions on behalf of at least 700 other people still in prison. Their cases have languished because only a handful of volunteers, unpaid by the state, are available to help them or to lobby for extension of the deadline. On that date, clerks of court and other keepers of DNA evidence in closed cases will be technically at liberty to destroy it. This unconscionable situation owes to no external force. The state attorneys do not oppose an extension. Neither does the governor. Attorney General Charlie Crist said in an interview last week that the prisoners' advocates are entitled to "the appropriate amount of time to do the job and do it right." The reason appears primarily a matter of indifference on the part of committees that should have undertaken to extend the deadline, complicated by turf-guarding, finger-pointing and ego among some members who could not be bothered to listen. "It just fell through the woodwork," claims House Criminal Justice Committee Chairman Dick Kravitz, R-Jacksonville. None of that resembles a pardonable excuse. Were Florida legislators not listening, or did they choose not to hear, when President Bush spoke to the subject in his State of the Union address? This is what the president said: "Because one of the main sources of our national unity is our belief in equal justice ... we need to make doubly sure no person is held to account for a crime he or she did not commit - so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction." The president also asked Congress for money to finance DNA testing grants for state prisoners under a law he signed last year. To qualify, Florida needs the legislation that the House and Senate will not hear. Many technicalities stand in the way of pending attempts to pass the extension as amendments to other legislation. There is almost nothing the Legislature cannot do, however, when its leaders set their minds to it. It is now the inescapable moral duty of House Speaker Allan Bense and Senate President Tom Lee to get the extension enacted. It bears remembering that everything that Florida legislators do, or do not do, is in the name and by the authority of the people. In our names and by our authority, they are on the verge of perpetrating a monstrous injustice. (source: Editorial, St. Petersburg Times) CALIFORNIA: Police officer's death brings murder charge Prosecutors charged an 18-year-old Antioch man Tuesday with special- circumstances murder in the shooting death of Pittsburg patrol officer Larry Lasater, making the teenager eligible for the death penalty. Alexander Rashad Hamilton, who police say shot the officer, is to be arraigned today in Contra Costa County Superior Court along with Andrew Moffett, an alleged accomplice who was 17 at the time of the killing. Both were charged with 1 count of murder, 3 counts of robbery with a firearm, 2 counts of assault with a firearm, 3 counts of attempted murder and 1 count of auto theft, said Deputy District Attorney Harold Jewett. Prosecutors allege 3 special circumstances that make Hamilton eligible for the death penalty: robbery, the killing of a police officer, and lying in wait. No decision has been made on whether to seek the death penalty, Jewett said. Moffett, who lives in Pittsburg and Elk Grove, turns 18 today -- meaning he narrowly avoided eligibility for the death penalty. Lasater, 35, of Pacheco, whose wife is pregnant with their 1st child, was declared brain-dead Sunday at John Muir Medical Center in Walnut Creek but kept on life support for more than a day so his organs could be donated. Authorities say Lasater was shot Saturday night while trying to arrest Hamilton and Moffett after they robbed a Pittsburg supermarket at gunpoint, crashed a stolen getaway car and hid along a wooded trail. Donations may be sent to the Lasater Family Fund, c/o Pittsburg Police Officers Association, Attention: The Deuel Group, Merrill Lynch, 1111 Broadway, Suite 2200, Oakland, CA 94607; (510) 208-3838. (source: San Francisco Chronicle) VIRGINIA: Why Al Qaeda Conspirator Zacarias Moussaoui's Guilty Plea Probably Won't Save His Life Defendants facing the possibility of the death penalty frequently plead guilty in exchange for a promise from the government not to seek execution. The practice is unsettling, insofar as the threat of death may induce an innocent person to plead guilty simply to save his skin. Nonetheless, in an overburdened criminal justice system, the courts have accepted plea bargains as a necessary evil, allowing prosecutors to promise leniency--including the sparing of a defendant's life--so that the government may avoid the cost of a trial and the risk of an acquittal. So long as the defendant "knowingly, voluntarily and intelligently" waives his right to a trial, the courts will accept his guilty plea. But what are we to make of the guilty plea of Zacarias Moussaoui? Last week, Moussaoui--the so-called twentieth hijacker--pleaded guilty to conspiracy in the 9/11 plot without any promise of leniency in exchange for his plea. Although there will be no trial regarding his guilt, Moussaoui will shortly face a trial to determine whether he should be sentenced to death or life imprisonment. Ever since he angrily dismissed his attorneys in 2002, Moussaoui has been acting as his own lawyer, only grudgingly accepting some assistance from standby counsel appointed by Federal District Judge Leonie Brinkema to ensure fair proceedings. What has Moussaoui's self-representation been like? In accepting Moussaoui's guilty plea last week, the judge said he "is extremely intelligent with a better understanding of our legal system than some of the lawyers who have appeared in court." Yet Seymour Hersh, writing for the New Yorker , seemed to come closer to the mark when he said about a raft of filings from Moussaoui during the summer of 2003, that they "contained some glimpses of acute intelligence and awareness, but more often Moussaoui veered into angry ramblings." And indeed, an examination of the tactical considerations that appear to underlie Moussaoui's decision to plead guilty undermines the conclusion that he did so intelligently. Why an "Unagreed" Guilty Plea in a Capital Case Can Be Intelligent One might be tempted to treat every decision to plead guilty to a capital offense without a prosecutorial promise to forego the death penalty as "unintelligent." But that would be inaccurate. A defendant could rationally decide to plead guilty under such circumstances. Some defendants feel genuine remorse for their conduct and wish to accept responsibility for it. A defendant who participated in a crime under the influence of others may not have fully appreciated the gravity of the offense until faced with the damage. Or, religious scruples, sometimes acquired after the commission of the offense, may lead a defendant to plead guilty notwithstanding the possibility of a death sentence. Moreover, whether or not a defendant feels genuine remorse, he may wish to seem remorseful in the hope of appealing to the sentencing jury. For under federal law, the same jurors that determine the defendant's guilt or innocence decide whether to impose the death penalty if they find him guilty. At sentencing, that jury is guided by the federal death penalty statute, which sets out a number of mitigating factors that the jury must consider in deciding whether to impose the death penalty. Remorse is not expressly listed among these, but it would certainly count under the catch-all provision for "other factors . . . that mitigate against the imposition of the death sentence." In the eyes of many jurors, a defendant who contests his guilt, by definition, manifests no remorse: How could he be remorseful about a crime, if he does not even admit that he committed it? Thus, the defendant who first contests his guilt and then professes remorse only after he has been convicted, will typically find that the jury disbelieves his expression of regret. "He's just feigning remorse to save his skin," the jurors will likely think. Suppose, then, that a defendant believes that he is likely to be found guilty anyway, because the government's case against him is very strong. He may calculate that his best hope of averting the death penalty is to plead guilty and, in effect, throw himself on the mercy of the sentencing jury. Thus, he may rationally plead guilty even without any prosecutorial promise of leniency. Why Moussaoui's Guilty Plea Nonetheless Makes Little Sense In short, there are a number of very good reasons why a defendant might plead guilty to a capital offense even without a prosecutorial promise of leniency. But none of them appear to apply to Moussaoui. Moussaoui is a fanatically religious man, but it is his very religious feeling that, he claims, justified his participation in a plot to commit mass murder. Far from feeling genuine remorse, Moussaoui appears to regret only that he was apprehended before he had the opportunity to complete his mission of destruction. Moreover, Moussaoui has quite openly expressed these sentiments. He has amply exhibited his lack of genuine remorse through his lack of even feigned remorse. So he can hardly be described as throwing himself upon the court's mercy. What about the strength of the case against Moussaoui? Is he merely accepting the inevitable by pleading guilty? There is essentially irrefutable evidence that Moussaoui came to the United States on an Al Qaeda mission to fly an airplane into a building. But there are real doubts about whether Moussaoui was ever intended to be the twentieth hijacker on September 11, 2001, as the prosecution maintained. Moreover, a skillful lawyer might have used those doubts to sow doubt on other elements of the government's case. By pleading guilty, however, Moussaoui effectively eliminated that possibility. Moussaoui's Own Misguided Account of His Guilty Plea If Moussaoui did not plead guilty because of remorse, feigned remorse, or the overwhelming strength of the case against him, why then did he do it? The answer is not entirely clear, but his statements in the plea colloquy--the oral exchange between the judge and the defendant meant to ensure the plea is voluntary and that the defendant indeed committed the offense--suggest that Moussaoui thought he had tricked the prosecution. Moussaoui acknowledged that he was an Al Qaeda operative intent on flying an airplane into a building, according to his account, the White House. But, he insisted, his plot was distinct from the 9/11 plot. Accordingly, he may think that the evidence of the death and destruction caused by the 9/11 hijackings will be excluded from his penalty trial. If that is indeed Moussaoui's thinking, he is very much mistaken. Although the indictment setting forth the charges to which he pleaded guilty does not specifically state that he was to be the 20th hijacker, it clearly alleges that he engaged in the same pattern of conduct as the other hijackers and was part of the broad Al Qaeda conspiracy to fly planes into buildings. As the indictment charges--and as Moussaoui admitted by pleading guilty--that conspiracy resulted "in the deaths of thousands of persons on September 11, 2001." The fact, if it is a fact, that Moussaoui's role in the conspiracy would have led to numerous additional deaths of different persons on a different date is legally and morally irrelevant to whether he is guilty of the offense charged. The Symbolic Meaning of Moussaoui's Impending Sentencing Hearing If Moussaoui's logic in pleading guilty is faulty, does that mean that his plea is invalid? Hardly. In requiring that a guilty plea be "intelligent," the law does not demand that it be wise. After all, most criminals--and especially terrorists like Moussaoui--live their lives by a logic quite different from that of law-abiding citizens. Thus, the law's requirement of "knowing, voluntary and intelligent" guilty pleas should not be taken literally. That language is essentially a formula for the notion that the defendant understands that by pleading guilty, he waives his right to a trial to determine his guilt or innocence. Likewise, the public should understand what Moussaoui's guilty plea means. With the nineteen 9/11 hijackers dead and Osama bin Laden still at large, Moussaoui's trial was always going to be about issues larger than his role in the 9/11 plot. Fairly or not, Moussaoui was to serve as a kind of surrogate for the dead and absent defendants. Now that the issue of Moussaoui's guilt is off the table, his sentencing hearing can play the role of stand-in trial for Osama bin Laden, Mohammed Atta and the other villains now or forever beyond the reach of the courts. And that is unlikely to result in any mercy being extended to the actual defendant. (source: Findlaw; Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind 15 leading constitutional cases.)
