Post by SoulTrainOz on Jul 20, 2006 7:07:22 GMT -5
By MATT BURGARD, Hartford Courant
Lawyers trying to keep a convicted killer off death row are attempting to show that the factors weighed by different prosecutors to decide who should face the maximum penalty vary in Connecticut from one judicial district to another - and therefore violate the state's constitution.
At a hearing at Superior Court in Hartford Monday, Judge Edward Mullarkey upheld a defense demand to subpoena state prosecutors to testify about what rules and guidelines they use - if any - when deciding to seek the death penalty in any given case.
"We believe the methods are arbitrary and capricious, and therefore unconstitutional," said public defender Ronald Gold, who is challenging what he calls the "unbridled discretion" given to prosecutors in death cases.
Gold hopes the testimony from the state's attorneys will convince Mullarkey that the lack of standards is inconsistent with several protections in the state constitution, including the due process clause and the clause against cruel and unusual punishment.
Gold is representing Jessie Campbell III, 26, who was convicted in May 2004 of carrying out a shooting rampage at a home in Hartford that claimed the lives of two women, including the mother of his son.
But the jury in the case could not reach a unanimous agreement on whether Campbell should be executed or spend the rest of his life in prison, prompting Mullarkey to plan a second penalty phase, which is set to begin before a new jury in September.
Gold said he hopes the challenge he has mounted along with fellow public defender David Smith will ultimately take the death penalty option out of the jury's hands.
"That's what this is all about," he said.
Despite objections from prosecutor Dennis O'Connor, Mullarkey upheld the subpoenas to 12 of the 13 state's attorneys, as well as Chief State's Attorney Christopher Morano. The only subpoena not upheld was to Hartford State's Attorney James Thomas, whose office is prosecuting the case against Campbell.
If the jury ultimately sentences Campbell to death, he would become the eighth person sitting on death row in Connecticut.
Ten people have been sentenced to death in Connecticut since 1973, according to Robert Nave of the anti-death penalty group Connecticut Network to Abolish the Death Penalty. Of the seven men now on death row, five were sentenced in Superior Court in Waterbury, where John Connelly is the state's attorney.
"The death penalty in Connecticut picks on racial minorities, the poor and the indigent, and it depends on large part which prosecutor is going after the case," Nave said.
At Monday's hearing, O'Connor asked Mullarkey to quash all of the subpoenas, saying there is ample legal precedent for giving prosecutors discretion in determining how to charge suspects. He cited several cases in Connecticut and other jurisdictions in which the constitutionality of prosecutorial discretion has been upheld.
But Mullarkey did not take up the core issue itself, saying only that he found no reason to quash the subpoenas. He said he would rule on the merits of the arguments in the case after the various state's attorneys testify.
Mullarkey said Gold would be able to ask only about what kind of standards or guidelines, written or otherwise, prosecutors have in determining whether to seek the death penalty. But Mullarkey said he would not allow questions about the thought processes or other subjective considerations weighed by the state's attorneys.
Gold and O'Connor agreed that it appeared there were no such guidelines used by all the different state's attorneys, but O'Connor maintained that was legally proper and necessary to ensure justice.
Although the state Supreme Court has not specifically ruled on the constitutionality of prosecutorial discretion in death cases, the issue has been addressed, at least in part, at the federal level.
The U.S. Supreme Court put a temporary halt to the death penalty in 1972 out of concern about its arbitrary application at the hands of jurors lacking guidance, said Richard Dieter, head of the Death Penalty Information Center..
In a 1976 decision in Gregg vs. Georgia, the court ruled that a Georgia death penalty statute was constitutional - helping to resolve the juror issue and to clear the way for the reinstatement of capital punishment, Dieter said.
In that ruling, though, the court said prosecutors should have discretion and that they shouldn't be assumed to have abused that discretion, Dieter said.
"That put a squelch on the idea that just by pointing to these pockets of death penalty concentration, that you've identified a problem," he said. "That's not enough for the court."
But the lack of a solid legal issue doesn't mean the lack of a solid policy issue, he said.
"You do have a system that's not uniformly applied, but it doesn't seem likely that the Supreme Court is going to grant relief on that," he said. "It's an issue for state legislators or governors."
Despite the federal precedent in favor of prosecutorial discretion, Gold said he believes he has mounted a legitimate challenge that will require serious consideration at the state court level.
Source : Hartford Courant (Contact Matt Burgard at mburgard@courant.com.)
www.courant.com/news/local/hc-deathpen0718.artjul18,0,7518398.story?c
Lawyers trying to keep a convicted killer off death row are attempting to show that the factors weighed by different prosecutors to decide who should face the maximum penalty vary in Connecticut from one judicial district to another - and therefore violate the state's constitution.
At a hearing at Superior Court in Hartford Monday, Judge Edward Mullarkey upheld a defense demand to subpoena state prosecutors to testify about what rules and guidelines they use - if any - when deciding to seek the death penalty in any given case.
"We believe the methods are arbitrary and capricious, and therefore unconstitutional," said public defender Ronald Gold, who is challenging what he calls the "unbridled discretion" given to prosecutors in death cases.
Gold hopes the testimony from the state's attorneys will convince Mullarkey that the lack of standards is inconsistent with several protections in the state constitution, including the due process clause and the clause against cruel and unusual punishment.
Gold is representing Jessie Campbell III, 26, who was convicted in May 2004 of carrying out a shooting rampage at a home in Hartford that claimed the lives of two women, including the mother of his son.
But the jury in the case could not reach a unanimous agreement on whether Campbell should be executed or spend the rest of his life in prison, prompting Mullarkey to plan a second penalty phase, which is set to begin before a new jury in September.
Gold said he hopes the challenge he has mounted along with fellow public defender David Smith will ultimately take the death penalty option out of the jury's hands.
"That's what this is all about," he said.
Despite objections from prosecutor Dennis O'Connor, Mullarkey upheld the subpoenas to 12 of the 13 state's attorneys, as well as Chief State's Attorney Christopher Morano. The only subpoena not upheld was to Hartford State's Attorney James Thomas, whose office is prosecuting the case against Campbell.
If the jury ultimately sentences Campbell to death, he would become the eighth person sitting on death row in Connecticut.
Ten people have been sentenced to death in Connecticut since 1973, according to Robert Nave of the anti-death penalty group Connecticut Network to Abolish the Death Penalty. Of the seven men now on death row, five were sentenced in Superior Court in Waterbury, where John Connelly is the state's attorney.
"The death penalty in Connecticut picks on racial minorities, the poor and the indigent, and it depends on large part which prosecutor is going after the case," Nave said.
At Monday's hearing, O'Connor asked Mullarkey to quash all of the subpoenas, saying there is ample legal precedent for giving prosecutors discretion in determining how to charge suspects. He cited several cases in Connecticut and other jurisdictions in which the constitutionality of prosecutorial discretion has been upheld.
But Mullarkey did not take up the core issue itself, saying only that he found no reason to quash the subpoenas. He said he would rule on the merits of the arguments in the case after the various state's attorneys testify.
Mullarkey said Gold would be able to ask only about what kind of standards or guidelines, written or otherwise, prosecutors have in determining whether to seek the death penalty. But Mullarkey said he would not allow questions about the thought processes or other subjective considerations weighed by the state's attorneys.
Gold and O'Connor agreed that it appeared there were no such guidelines used by all the different state's attorneys, but O'Connor maintained that was legally proper and necessary to ensure justice.
Although the state Supreme Court has not specifically ruled on the constitutionality of prosecutorial discretion in death cases, the issue has been addressed, at least in part, at the federal level.
The U.S. Supreme Court put a temporary halt to the death penalty in 1972 out of concern about its arbitrary application at the hands of jurors lacking guidance, said Richard Dieter, head of the Death Penalty Information Center..
In a 1976 decision in Gregg vs. Georgia, the court ruled that a Georgia death penalty statute was constitutional - helping to resolve the juror issue and to clear the way for the reinstatement of capital punishment, Dieter said.
In that ruling, though, the court said prosecutors should have discretion and that they shouldn't be assumed to have abused that discretion, Dieter said.
"That put a squelch on the idea that just by pointing to these pockets of death penalty concentration, that you've identified a problem," he said. "That's not enough for the court."
But the lack of a solid legal issue doesn't mean the lack of a solid policy issue, he said.
"You do have a system that's not uniformly applied, but it doesn't seem likely that the Supreme Court is going to grant relief on that," he said. "It's an issue for state legislators or governors."
Despite the federal precedent in favor of prosecutorial discretion, Gold said he believes he has mounted a legitimate challenge that will require serious consideration at the state court level.
Source : Hartford Courant (Contact Matt Burgard at mburgard@courant.com.)
www.courant.com/news/local/hc-deathpen0718.artjul18,0,7518398.story?c