STATE OF CONNECTICUT : STATE OF CONNECTICUT

V. : AT HARTFORD

MICHAEL ROSS : JANUARY , 2005

APPLICATION OF THE CONNECTICUT CRIMINAL DEFENSE LAWYERS ASSOCIATION FOR PERMISSION TO APPEAR AS AMICUS CURIAE, TO FILE A BRIEF AND TO ARGUE ORALLY IN SUPPORT OF WRIT OF ERROR TO CONNECTICUT SUPREME COURT FILED BY GERARD SMYTH, CHIEF PUBLIC DEFENDER

The CONNECTICUT CRIMINAL DEFENSE LAWYERS ASSOCIATION (hereinaf-ter "CCDLA"), applies to this Honorable Court, pursuant to Practice Book Sections 66-2, 66-3 and 67-7, for permission to appear as amicus curiae, to file a brief and to argue orally in support of the Writ of Error filed by Chief Public Defender Gerard Smyth in the above-captioned matter. Mr. Smyth is the plaintiff-in-error.

Amici wish to address the issue of whether the State of Connecticut may exercise its authority to kill when litigation aimed at uncovering arbitrariness and discrimination in the administration of capital punishment is pending.

CCDLA is a not-for-profit organization of three hundred lawyers who are dedicated to defending persons accused of criminal offenses. Founded in 1988, CCDLA is the only statewide criminal defense lawyer’s organization in Connecticut. An affiliate of the National Association Of Criminal Defense Lawyers, CCDLA works to improve the criminal justice system by, inter alia, insuring that the individual rights guaranteed by the Connecticut and United States constitutions are applied fairly and equally and that those rights are not diminished. Accordingly, CCDLA has a strong interest in this case and any other case involving criminal justice procedures likely to lead to illegal executions. See Thalheim v. Greenwich, 256 Conn. 628, 645 (2001)(function of "friend of the court" is to provide information useful in resolving difficult issues of law, such as matters of great public interest).

CCDLA seeks amicus curiae status because the trial court’s denial of the Chief Public Defender’s motion to appear, coupled with its erroneous ruling on competency, foreclosed consideration of an important criminal justice issue, namely, whether it is permissible to execute a death-sentenced inmate who has declined further legal challenges when consolidated, post-conviction litigation aimed at revealing arbitrariness and discrimination in the implementation of Connecticut’s death penalty system is pending. Because systemic arbitrariness and discrimination would bear directly on the validity of every sentence of death, CCDLA urges this Court to hold that any execution performed while such litigation is pending would be illegal under state and federal constitutional and statutory law and, thus, is barred.

BRIEF HISTORY OF THE CASE

In 1987, Michael Ross was convicted of six counts of capital felony in violation of General Statutes Section 53a-54b and, after a separate penalty phase hearing pursuant to General Statutes (Rev. to 1983) Section 53a-46a, was sentenced to death on each count. On appeal, this Court upheld the convictions, but reversed the death sentences and remanded the matter for a new penalty phase hearing. State v. Ross, 230 Conn. 183, 286 (1994), cert. denied 513 U.S. 1165 (1995)(Ross II). At trial and on appeal, Ross was represented by court-appointed counsel, principally the Office of the Chief Public Defender.

Following the remand, Ross elected to represent himself. This led to two pieces of joint litigation aimed at securing a death sentence against Ross. In the first, this Court declined to answer seven reserved questions of law (including questions designed to determine whether the presentation and consideration of mitigating evidence could be avoided), finding that the questions depended upon events that might never arise. State v. Ross, 237 Conn. 332, 337-38 (1996)(Ross III). In the second, the trial court rejected a stipulation between Ross and the State to waive the new penalty phase hearing and to fix the sentence at death. State v. Ross, 1998 Conn. Super. LEXIS 1419.

In 2000, at the penalty phase rehearing, a new jury found an aggravating factor and no mitigating factor with respect to each count. Consequently, the trial court sentenced Ross to death on each count in accordance with the jury’s findings. On June 1, 2004, this Court affirmed the death sentences. State v. Ross, 269 Conn. 213, 224 (2004)(Ross V). A timely-filed motion for reconsideration was later denied by this Court on September 8, 2004. At the penalty phase rehearing and on appeal, Ross was again represented by court-appointed counsel, chiefly the Office of the Chief Public Defender.

On September 21, 2004, Ross discharged his court-appointed lawyers and retained Attorney T.R. Paulding, Jr., who had represented him from 1995 to 1998 when he was pursuing a sentence of death. On October 6, 2004, in New London Superior Court, Ross purportedly waived any further legal challenges to the convictions and death sentences and volunteered to be executed. The court, Clifford, J., set the execution for January 26, 2005.

On December 1, 2004, the Chief Public Defender filed a motion for permission to appear as "next friend" of Ross and as an interested party, intervener or amicus curiae. Counsel also lodged two motions. The first sought a stay of execution and a judicial determination of Ross’ competence and the validity of his waiver. The second sought a stay of execution pending the resolution of the consolidated, post-conviction litigation informed by the decisions in State v. Cobb, 234 Conn. 735 (1995) and State v. Reynolds, 264 Conn. 1, 226-34 (2003). The central claim of the litigation is that statistics demonstrate that Connecticut’s death penalty system is marred by arbitrariness and discrimination and, thus, violates the state and federal constitutions, as well as General Statutes Section 53a-46b(b)(1).

On December 15, 2004, the court, Clifford, J., denied the motion to appear. Believing Ross to be competent, the court held that the Chief Public Defender lacked standing under any status. Though the two lodged motions were not decided, the court disagreed that the unresolved post-conviction litigation prevented the execution, as Ross had purportedly declined to join the litigation. Later, on December 28, 2004, in a non-adversarial hearing and without the Public Defender present, the court found Ross competent to waive further challenges and to proceed to execution.

On December 23, 2004, the Chief Public Defender filed a Writ of Error challenging the trial court’s denial of the motion for per-mission to appear. On January , 2005, the Public Defender filed the present Writ challenging the court’s competency ruling.

SPECIFIC FACTS RELIED UPON

Allowing An Execution To Proceed When Litigation Concerning Arbi- trariness And Discrimination In The Administration Of Capital Pun- ishment Is Pending Would Violate C.G.S. Section 53a-46b(b)(1).

General Statutes Section 53a-46b mandates death-sentence review by this Court in satisfaction of the constitutional requirement of meaningful appellate review set forth in Gregg v. Georgia, 428 U.S. 153, 195, 198, 207 (1976). Such review not only protects the interests of the accused, but also enables Connecticut to maintain a constitutional death penalty system. See Ross, 230 Conn. at 239.

Subsection "(b)(1)" of the statute requires this Court to determine whether the death sentence under review is "the product of passion, prejudice or any other arbitrary factor." Section 53a-46b(b)(1); see also Practice Book Section 67-6(a)(effectuating Section 53a-46b(b)(1)). Any death sentence which is found by this Court to be "the product of passion, prejudice or any other

arbitrary factor" must be vacated, with the case being remanded for imposition of a life sentence. Section 53a-46b(a)(b)(1); see State v. Cobb, 234 Conn. at 740.

In State v. Cobb, supra, this Court held that claims of arbitrariness and discrimination in the administration of Connecticut’s death penalty system should be brought under Section 53a-46b(b)(1)(review for "passion, prejudice or any other arbitrary factor"), rather than under Section 53a-46b(b)(3)(review for excessiveness and disproportionality). Cobb, 234 Conn. at 741-42, 760, 761-63; see Reynolds, 264 Conn. at 230. With respect to defendants already sentenced to death, this Court further held that any claims of arbitrariness driven by statistics, but lacking an adequate record, should not be raised for the first time on appeal, but rather should be brought in a post-appeal habeas corpus petition. Id. at 741-42, 761-63; see Reynolds, 264 Conn. at 230.

In State v. Reynolds, supra, this Court ordered that all statistically driven claims of arbitrariness and discrimination brought under Section 53a-46b(b)(1) will be litigated in one consolidated habeas corpus proceeding. Reynolds, 264 Conn. at 233-34. This Court directed that the "claim be litigated before the same habeas judge and in the same general, consolidated hearing, on behalf of all defendants who have been sentenced to death." Id. at 233. "[F]ormer Chief Justice Robert Callahan [was appointed] to serve as a special master to manage the process and timetable by which the claim would be litigated in the habeas court." Id.

Informed by the Cobb and Reynolds decisions, death-row inmates (Cobb, Webb, Breton, Reynolds) filed habeas corpus petitions. The litigation remains pending, with a consolidated evidentiary hearing not yet held. Eventually the litigation will reach this Court, thus enabling this Court to complete the sentence review mandated by Section 53a-46b(b)(1). A holding by this Court that Connecticut’s system is impermissibly infected with arbitrariness and discrimina-tion would automatically render all death sentences invalid, including those of defendants who claim not to be joining in the litigation. No execution, voluntary or otherwise, could proceed.

Until the claim arrives, this Court cannot determine whether Connecticut’s death penalty system is infused with impermissible arbitrariness and discrimination that would make all death sentences "the product of passion, prejudice or any other arbitrary factor," Section 53a-46b(b)(1), and, thus, invalid. Moreover, this Court cannot determine whether any given sentence of death is truly final and that the heightened standard of reliability demanded in the application of the death penalty, see Woodson v. North Carolina, 428 U.S. 280, 305 (1976); Ford v. Wainwright, 477 U.S. 399, 411 (1986); Ross, 230 Conn. at 230-35, has been achieved.

Until this Court adjudicates the claim, this Court cannot allow any execution, voluntary or otherwise, to be carried out. Section 53a-46b(b)(1) expressly provides that no death sentence shall be affirmed unless this Court has found that it is not "the product of passion, prejudice or any other arbitrary factor." That the defendant may have waived further legal challenges does not excuse completion of the mandatory sentence review. Accordingly, until there is resolution of the claim and satisfaction of the review requirement set forth in Section 53a-46b(b)(1), this Court cannot permit the execution of Michael Ross or any other death-row inmate.

Allowing An Execution To Proceed When Litigation Concerning Arbi- trariness And Discrimination In The Administration Of Capital Pun- ishment Is Pending Would Violate The Due Process, Equal Protection And Cruel And Unusual Punishment Clauses Of The Connecticut And United States Constitutions And Would Undermine The Integrity Of Connecticut’s Criminal Justice System.

Allowing the execution of Michael Ross or any other death-row inmate while the statistically driven claim of arbitrariness and discrimination is pending would also violate the due process, equal protection and cruel and unusual punishment clauses of the Connecticut and United States constitutions.

Further, any such execution would seriously undermine the reliability and integrity of Connecticut’s criminal justice system, for it would shortchange the "meaningful appellate review" requirement and would leave the public to wonder about the appropriateness of the sentence. Society’s interest, of course, in the appropriateness of a death sentence supersedes the personal wish of the condemned to waive further legal challenges and to be executed. See State v. Martini, 677 A.2d 1106, 1107 (N.J. 1996)("The public has an interest in the reliability and integrity of a death sentencing decision that transcends the preferences of individual defendants."); Commonwealth v. McKenna, 383 A.2d 174, 180-81 (Penn. 1978)(death-row inmate’s desire to waive direct appeal review "must give way where a substantial public policy is involved"). This Court "must use its inherent power over the administration of justice to prevent action that undermines the integrity of the system." State v. Ubaldi, 190 Conn. 559, 570-72, cert. denied, 464 U.S. 916 (1983).

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court held that the death penalty violates the 8th and 14th amendments’ prohibitions against cruel and unusual punishment when it is imposed under a death penalty system which creates a substantial risk of an arbitrary, discriminatory or capricious decision. Accordingly, a holding by this Court that Connecticut’s death penalty system is impermissibly tainted by arbitrariness and discrimination would place Connecticut’s system in violation of the federal constitution, as well as our state constitution which guarantees the same, if not greater, rights.

In State v. Martini, 677 A.2d 1106, the New Jersey Supreme Court was presented with the same issue before this Court. The defendant’s conviction and death sentence was affirmed on direct appeal and he declined to seek collateral review. Over the defendant’s objection, the Public Defender sought permission to pursue post-conviction relief on the defendant’s behalf, alleging that New Jersey’s death penalty system was constitutionally flawed because it was imbued with discrimination. The Public Defender also sought a stay of execution pending resolution of the claim. The Court held that the defendant could not be executed until it determined whether New Jersey’s system was free of impermissible discrimination and, thus, in compliance with its state constitution. Martini, 677 A.2d at 1113 ("we [have] specifically reserved the power to re-evaluate the constitutionality of the death penalty statute if statistical evidence were to illustrate a racial disparity in death sentences .... Both majority and dissent agree that a stay of Martini’s execution until that date would be in order."). The Court viewed the question as "not whether the Public Defender ha[d] standing to raise [the] issue on behalf of the defendant, but whether the judiciary, in the discharge of its ‘constitutional and statutory duty to review every judgment of death’ ... must consider the issue in order to ensure the reliability of the decision to execute." (Internal citations omitted) Id. at 1111. The Court proclaimed:

It is difficult to explain why a murderer who has admitted

his guilt and had his conviction and sentence of death

affirmed on direct appeal should not be granted his request

to be executed immediately. For some, no explanation may be necessary. For others, no explanation will suffice. For

those who wish to understand, we explain that under our form

of government it is not the inmate on death row or the

accused who determines when and whether the State shall

execute a prisoner; rather, the law itself makes that determination. The public has an interest in the reliability and integrity of a death sentencing decision that transcends the preferences of individual defendants.

Id. at 1107.

Accordingly, state and federal constitutional guarantees, as well as public policy interests, counsel against permitting any execution before the Section 53a-46b(b)(1) litigation is resolved.

LEGAL GROUNDS RELIED UPON

CCDLA relies upon Practice Book Sections 66-2, 66-3 and 67-7 in filing this application.

WHEREFORE, CCDLA requests that this application be granted.

Respectfully Submitted,

CCDLA, Amicus Curiae

By

Attorney Tara L. Knight

President-Elect, CCDLA