Many obstacles block road to execution

Ed Stannard, New Haven Register

When Michael Dearington announced last week that he would seek the death
penalty for the two men accused of rape, arson and murder in Cheshire last
week, it marked only the third time in his 22 years as state's attorney in
Milford and New Haven that he has done so.

That first hurdle in the prosecution's efforts to execute Joshua
Komisarjevsky and Steven Hayes sets the judicial wheels turning, but it's a
long, difficult road to an actual execution in Connecticut.

"I think it's extremely difficult," said Harold Schramm, professor emeritus
of justice and law administration at Western Connecticut State University.
"The history has been that it's permissible . but it isn't with any speed,
of course. . A death penalty prosecution with all the appeals goes on for
years."

The obstacles to execution are twofold, based in state law and subject to
human beliefs, including prosecutors' discretion and juries' hesitance to
impose it.

Dearington, as Milford state's attorney in 1987, sought the death penalty
for Thomas A. Hoyesen, who shot Police Officer Daniel S. Wasson to death
during a traffic stop. Hoyesen was convicted but escaped with his life
because he was high on cocaine when he killed Wasson.

Serving as New Haven state's attorney since late 1987, Dearington asked for
the death penalty only once before: against Jonathan Mills, who was
convicted of killing his former aunt and her two children in Guilford in
December 2000. In October 2004, the jury convicted Mills but sentenced him
to life without parole because of his drug abuse, abusive family background
and his remorse.

On Thursday, Dearington filed six capital felony charges each against
Komisarjevsky and Hayes. If they are convicted in the murders of Jennifer
Hawke-Petit and her daughters, Hayley Petit, 17, and Michaela Petit, 11,
they will have mitigating factors, automatic appeals and a well-organized
death penalty opposition on their side.

"It's so ultimate, so that I think jurors are concerned about that, and very
often I think when the emotion dies down they are afraid of the horror,"
said Schramm, who opposes capital punishment.

His opposition is based, in part, on the how long the appeals process takes
and the capriciousness with which the penalty is imposed.

"The courts in Connecticut are open to this, but as a matter of practice it
seems to me it's gruesome to prolong this process and to open the wounds
over and over again," Schramm said.

ONLY ROSS

Michael B. Ross is the only person executed by Connecticut since 1960. An
admitted killer of eight women in this state and New York, he died by lethal
injection in 2005 after waiving all appeals and fending off death penalty
opponents who fought the sentence. One of his attorneys, T.R. Paulding, was
chastised by U.S. District Judge Robert Chatigny for helping Ross end his
appeals.

In Ross' case, there were "a myriad of entities who wanted to be involved,"
Paulding said, including the state public defender's office, his father, Dan
Ross, the Connecticut Network to Abolish the Death Penalty and the
Connecticut Civil Liberties Union.

"Right from the get-go it's difficult to get the death penalty," said
Paulding. He cited mitigating factors that must be considered, such as drug
use and family background, as well as "a lot of creative lawyering going on
out there."

Paulding said Komisarjevsky and Hayes, if convicted, "in some sense might be
the poster boys" for the death penalty, taking Ross' place in the gallery of
vicious brutality. But he opposes capital punishment despite his work on
Ross' behalf. "To me it's bordering on barbaric," he said.

Waterbury State's Attorney John A. Connelly prosecuted six of the convicts
now on death row and has said he doesn't believe he has discretion on
whether to bring a capital case "if the facts fit the law and the law fits
the facts."

Connelly rejected any idea that he might be overly willing to seek the death
penalty, noting that he has not brought any capital cases that were rejected
by the juries or panels of judges deciding between capital punishment and
life without parole.

"I've done six penalty phase hearings where we ask (for the death penalty).
In all those cases the death penalty was imposed."

"I think in cases where a certain penalty or a certain charge (is called
for) and prosecutors don't do it, I think that is also an abuse of
discretion."

The different choices prosecutors make was brought out in testimony earlier
this year by 12 of the state's 13 state's attorneys in the case of Jessie
Campbell III, who was convicted of a double murder in Hartford in 2000. The
jury recommended execution, but public defender Ronald Gold sought to show
the lack of consistency in how the death penalty is applied.

According to published reports, all but Connelly said they use discretion in
choosing whether to seek capital punishment.

"It's our contention that without any particular standards, there's no
uniformity so it can make a difference," Gold said last week. "There's a
stark comparison."

Linda Meyer, a law professor at Quinnipiac University, said that when a case
goes before a jury, it's difficult to know whether the panel will choose
capital punishment or life.

"It just depends on who's on that jury and what mitigating factors come
out," she said.

Once a defendant is convicted in a capital case, it is automatically
reviewed by the state Supreme Court. Other motions, such as habeas corpus
petitions, typically drag out the process for years.

State Rep. Alfred Adinolfi, R-Cheshire, who lives a quarter mile from the
Petits, would like that process shortened.

"I think we should also look for means to speed up the appeal procedure so
that it, one, doesn't take 15 years to complete it."

Thomas Ullmann, chief public defender in New Haven, fought against the death
penalty in the Mills case and said that even with all the appeals, errors
can still be made.

"I don't believe there's any case that warrants the death penalty," Ullmann
said. "It's arbitrarily applied, it's got the capacity for mistakes and it's
barbaric."

He also contended that "the cost to the system is massive compared to the
cost of imprisoning someone for the rest of their lives."

Adinolfi said that while innocent people have been convicted in the past,
the chances are too slim now to be concerned about.

"Now we have all the DNA testing, the radiological testing . to prove that
we are correct and that they are really guilty."

One aspect of Connecticut's capital punishment law, shared by only four
other states, is that the sentencing portion of a capital felony case is
retried if the jury deadlocks on punishment, even if the vote is 11-1. A
bill that was given a favorable recommendation by the Judiciary Committee
but did not reach a vote would have eliminated a new trial in favor of an
automatic life sentence.

In his written response to the bill, Chief State's Attorney Kevin Kane
opposed the bill, saying "it would become increasingly more difficult to
charge a capital felony and seek the death penalty in Connecticut."

"This legislation would take the discretion away from the state and the
court and create a situation in which one possibly irrational or biased
juror could hold out and prevent a verdict from ever being reached," Kane
wrote.

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Source : New Haven Register

http://www.nhregister.com/site/news.cfm ... 0581&rfi=6