Death Penalty Aftershocks

The repeal of the death penalty has produced some aftershocks. Of course, the real aftershocks will arrive after the next heinous murder, though it should be said that the multiple murders of Steven Hayes and Joshua Komisarjevsky have set a high bar.

These two worthies beat a husband with a baseball bat, tied him in the cellar of his house, forced his wife to draw out thousands of dollars from a bank, raped her, raped one of the daughters, tied both daughters to their beds, set fire to both, sprinkled the house with gasoline and murdered all inside but Dr. William Petit, who managed to escape and afterward demand the death penalty for Mr. Hayes and Mr. Komisarjevsky, readily granted to him by two separate juries. In Connecticut, death penalty cases require both a jury trial and a death penalty hearing.

Somewhat like Ishmael of Moby Dick fame, Mr. Petit was a lone survivor, a rather chatty one, determined to seek justice for his wrecked Pequod. Anti-death penalty proponents found it difficult to empathize with Dr. Pettis’ thirst for justice, but they could not do other than to sympathize with his plight.

State Senator Edith Prague, long an opponent of the death penalty, sympathized enough to change her consistent vote against the death penalty, frustrating an earlier attempt to abolish it. Mrs. Prague emerged from a private conversation with Mr. Petit and pronounced the following doom upon Joshua Komisarjevsky, one of the two murderers, rapists and arsonists: He should be hung "by his penis from a tree out in the middle of Main Street.'' After the trials and sentences were imposed, the inertia of Mrs. Prague’s office as a reliable vote for abolition gave her second thoughts, and she voted in favor of a morally indefensible bill that abolished the death penalty prospectively, retaining it for the 11 prisoners awaiting death on death row.

The prospective abolition of the death penalty provided a political trap door for politicians who wanted – for all the wrong reasons – to abolish the death penalty without opening themselves to charges they were indifferent to Mr. Petit’s unfortunate ordeal. The juridical problem of executing in the future 11 men in the absence of a law authorizing execution was of little concern to the cowards in the legislature, many of them lawyers, who voted in favor of a partial, self-lapsing abolition that would cost them fewer lost votes.

Theoretically, it is possible to extend to murderers who commit heinous crimes a balm of mercy, sequestering them in prison for life without possibility of parole, a stiff punishment said by some to be worse than execution, but there are, after all, limits to mercy. It proved politically difficult for opponents of the death penalty to abolish capital punishment for the 11 men who actually, not theoretically, had committed heinous murders. The entire so called “debate” on abolition of the death penalty in the General Assembly was pushed forward by theoretical bullies. Theoretically, it is possible for an innocent man to be found guilty of felony murder – but this has not happened in Connecticut in the past half century, and no one in the General Assembly would vouch for the innocence of the two murderers tried, found guilty and executed within that time period. So with most of the other arguments put forward in the General Assembly favoring abolition, most of themaddressed in Connecticut Commentary.

The argumentative structure for abolition was little more than an elaborate theoretical Potemkin Village. Theoretically, all the houses and factories look like houses and factories; but no one can live or work in the structures because they are mere facades, theoretical constructs that allow legislators to abolish capital punishment and then execute men in the absence of a law prescribing death as a punishment for their crimes. In the real non-theoretical world, such actions of a lawless state would be called murder. In the real world, the abolitionists began by decrying just sentences as “state murder” and have ended by sanctioning state murder.

The theoretical has become the real, and the real has become the theoretical. This is what happens when professors and lawyers rather than shoemakers and chimney sweepers become legislators. It is why Bill Buckley used to say that he would rather be governed by the first hundred people picked at random from the phone book than the faculty of Harvard law school.

Republican endorsed candidate for the U.S. House seat in the 5th District Andrew Roraback wandered into this mare’s nest when he reversed his position on abolition and, surprising some, Mr. Petit among them, voted against the abolition bill. However, not all flips in politics are flops among the cognescenti. Wasn’t Mr. Roraback giving Dr. Petit exactly what he wanted, asked one liberal columnist?

No, thought Dr. Petit, roaring back at Roraback, “When we met with Sen. Roraback, we respected his initial position to oppose the Death Penalty. His comments Wednesday, in our minds, cast doubt on whether Sen. Roraback has any core convictions on important issues.”

Mr. Roraback voted against the bill, he said, not because he wanted to flip on an issue that was unpopular with Republicans delegates poised to vote for or against him in the nominating convention, but rather because the bill was a transparent fraud.

On a third vote by delegates at the Republican Party nominating convention, Mr. Roraback was chosen as the nominee for the 5^thDistrict Congressional by a very slender margin over his opponent Lisa Wilson-Foley, who had brushed up against the Democrat’s favorite tar baby, former Governor-And-Felon John Rowland.

Unlike former State-Senator-And-Felon-Ernie-Newton, who spent three years in the clinker for accepting bribes and is now running for his old seat in Bridgeport, Mr. Rowland, a conservative radio commentator, has yet to offer himself as Republican Party candidate for office. None of the tar from the Newton baby has rubbed off on Democratic politicians in the state, and the silence issuing from the moral epigones now roasting Mr. Rowland is deafening.

First Abolition, Then Commutation

The death penalty in Connecticut, after several previous attempts, was abolished today by the Senate in a 20-16 vote. The House is certain to pass the abolition bill, and Governor Dannel Malloy has pledged to sign it into law. Senator Edith Prague, who voted in favor of abolition before she voted against it, this time voted to abolish the death penalty prospectively. A prospective rather than a retrospective abolition of the death penalty, it is said by proponents of abolition, will leave untouched the death sentences of eleven inmates awaiting execution on death row,.

After an emotional meeting with Dr. William Petit, the sole survivor of a home invasion Cheshire in which two now convicted murderers took the lives of his wife and two daughters, Mrs. Prague famously said of one of the two murderers convicted and sentenced to death, “They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street.”

But emotional responses, little more than convenient masks politicians sometimes put on to curry favor with voters, are evanescent. When the most recent bill abolishing the death penalty was presented to the general assembly, Mrs. Prague changed both her emotions and her vote.

The abolition of the death penalty raises the question of commutation for those awaiting punishment on death row. Unlike other states, commutations in Connecticut are parceled out by the legislature, not the governor. But it is always possible that an appellate court may strike down that provision in the abolition bill that preserves the death penalty for the 11 convicted murderers on Connecticut’s death row.

The possibility of commutation for the "Connecticut 11" was raised by Senator John McKinney prior to the vote in the General Assembly. Senator Prague allowed that discretion was decisive in judicial findings; for this reason, she said, it was essential that the abolition legislation must “make it very loud and very clear that this repeal cannot apply to anyone who is on death row.”

Mr. McKinney responded that even in the face of unambiguous language in the bill stipulating the abolition law is not intended to apply to inmates already sentenced to death, the courts would view the intent of congress clause as immaterial: “That’s a decision that will be decided in the courts. No one disputes that there will be a legal challenge brought by the public defender’s office and the weight of the legal experts is to say that a prospective death penalty won’t pass constitutional muster.”

The air in the small room, crowded with reporters during a media availability just prior to the Senate vote, was liberally sprinkled with the usual Democratic caucus propaganda. Reporters were addressed by the three vanguards of death penalty repeal – President of the Senate Don Williams, Senate Majority Leader Martin Looney, Senator Eric Coleman, co-chairman of the Judiciary Committee, all three of them lawyers, and Correction Commissioner Leo Arnone. The irrepressible Mr. Coleman could not forbear mentioning that abolition was for him a matter of conscience, “even should it [the death penalty] be repealed prospectively,” leaving eleven prisoners facing death in the absence of a law mandating execution. The three were peppered with questions concerning the likelihood that appellate courts might void that portion of the bill that seeks to prevent abolition for the inmates facing execution.

Dr. Samuel Johnson, were he a member of the General Assembly, easily could explain why the abolition bill cherished by Democratic caucus leaders should have been applied retroactively.

Nulla poena sine lege– “Where there is no law, there is no transgression” – is a part of the Natural Law that informs all laws. When Mr. Johnson was reporting on debates in the House of Commons, he offered this gloss on the doctrine: “That where there is no law there is no transgression, is a maxim not only established by universal consent, but in itself evident and undeniable; and it is, Sir, surely no less certain that where there is no transgression, there can be no punishment.”

Any sound legal defense of prospective capital punishment collapsed upon repeal of the death penalty sanction: Where there is no law, there can be no transgression; where there is no transgression, there can be no punishment. That is the rule of law not simply in Connecticut; it is a part of the natural law written with a finger of fire in the hearts of just men, not excepting judges, though some are prone to political pressure adeptly applied by ambitious politicians.

Death penalty opponents have been in the habit of referring falsely to a just death penalty as “judicial murder.” Having voided the death penalty, what possible moral reason can be advanced to justify what should rightly be regarded as murder, plain and simple? No possible justification can be advanced that does not do violence both to the law and the moral sense of just men and women. The death penalty abolition bill as proposed – with its prospective feature – is political Babbitry of the worst kind, a fainthearted retreat from legislative responsibility. The Democratic General Assembly, having messed its pants with this ill proposed bill, will now expect the courts to wash its diapers and apply through judicial edict the retroactive feature it was too politically cowardly to attach to it.

Death Penalty Commutation

A decent time having elapsed, sort of, since two multiple murderers had been sentenced to death for having 1) beaten with a baseball bat a husband of a family in Cheshire, 2) forced the husband’s wife to travel to a bank to withdraw funds for the two murderers, 3) raped the wife and one of the daughters, 4) bound the daughters to their beds, 5) set fire to the house, murdering the daughters and their mother, anti-death penalty legislators in the General Assembly are planning once again to file a bill that would prospectively abolish the death penalty, replacing it with a sentence of life in prison without possibility of parole. Prospective abolition would leave intact the 11) death penalty sentences of the murderers awaiting justice on Connecticut’s death row.

Such a bill would leave intact the legislature’s power to commute death penalty sentences to life in prison at any time after the General Assembly had abolished the death penalty. Unlike most states, the pardon power in Connecticut is invested in the legislature rather the governor’s office (McLaughlin v. Bronson, 206 Conn. 267 (1988), citing Palka v. Walker, 124 Conn. 121 (1938)). The General Assembly exercised this power until it created the Board of Pardons in 1883. Although the General Assembly had delegated its power of pardon to a board, it never-the-less retains pardon powers; and since the power to commute is considered a part of the pardon power (Attorney General’s Opinion 96-10, citing 59 Am.Jur.2d, Pardon and Parole § 23), it would appear that the legislature may commute death sentences, according to an Office of Legislative Research report.



The anti-death penalty legislators did succeed in passing an abolition bill during the administration of former Republican Governor Jodi Rell, but the governor disappointed them by vetoing it. Current Democratic Governor Dannel Malloy has pledged to sign such a bill should it cross his desk. Encouraged by the governor’s pledge, anti-death penalty proponents in the General Assembly reintroduced their bill after Mr. Malloy’s installation as governor, an effort doomed by two key Democratic legislators one of whom, state Senator Edith Prague, withdrew her support for the measure after having had a conversation with Dr. William Petit, the father of the Cheshire murder victims.

At a time when a jury had convicted and sentenced to death only one of the two Cheshire murderers, the trial of the second murderer being in process, Mrs. Prague emerged from her conversation with Dr. Petit firmly convinced that both murderers should suffer the penalties prescribed for them by a jury of their peers. She expressed herself on this point in rather unforgiving language: “They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street.” At the same time, Mrs. Prague indicated she might support future efforts to abolish the death penalty. But she found it difficult to look Dr. Petit in the face and “not give him something that would make his life a little easier.” The 86 year-old Mrs. Prague since then suffered a mild stroke but returned at the end of January to the General Assembly.

Democratic Senator Andrew Maynard of Stonington, meeting at the same time with Dr. Petit, followed Mrs. Prague’s lead. “It’s a toss-up,” he said, “I don’t support the death penalty broadly but I don’t support repealing it at this time. For my own personal reasons and as a matter of public policy, I don’t think it’s the right way for the state to act. But in this instance there are such mitigating circumstances, in my mind, that I could not in good conscience vote for repeal this year.” The mitigating circumstances having disappeared and the timing being better, Mr. Maynard now says “I’m inclined to support repeal.”

Even without the two wavering senators, there are, according to some head counters, enough votes in the General Assembly to pass the death penalty abolition bill.

The inevitable passage of the bill will unleash a flood of appeals that will at a minimum further delay the executions of Connecticut’s 11 death row inmates. It is almost certain that at some point in the future a Democratic dominated legislature supported by a Democratic governor, all of whom will have been instrumental in abolishing the death penalty, would be morally derelict in resisting the commutation of the death sentences of the 11 prisoners now awaiting execution on death row. The death penalty having been abolished for prospective criminals who in the future might violate Connecticut’s narrowly circumscribed rarely applied death sentence, no moral justification for the death penalty could withstand a call for the commutation of those awaiting execution authorized by a lapsed and outmoded law.

The Komisarjevsky Trial And The Significance Of Pins

There was a point during the Cheshire murder trial when one of the defense attorneys representing accused murderer Joshua Komisarjevsky became concerned that small pins worn by family members of the murder victims might unduly prejudice the jury against their client.

The judge in the case, Jon Blue, ruled that the pins were not so indiscrete as to trip the prejudices of jurors.

The pin challenge by the defense followed by some months the publication of an interview Mr. Komisarjevsky gave to a reporter while incarcerated that was, the First Amendment still being the law of the land, widely covered by several state newspapers. The Komisarjevsky prison interview was fashioned into a hastily written book that found its way into libraries across the state. An effort was made, unsuccessfully, to pry the book from the hands of aggressive librarians conversant with the First Amendment.

Mr. Komisarjevsky, a very talkative fellow, also made a statement to police shortly after he was apprehended that was, most lawyers would agree, high incriminating, though Mr. Komisarjevsky was prudent enough to suggest in his statement that his companion in crime, Steven Hayes, earlier convicted of capital murder, had spread gasoline throughout the house and lit the fire intended to destroy evidence of their crime. This “evidence” included three victims, the wife of Dr. Petit and his two daughters, 11 years old Michaela and 17 year old Hayley.

So then, were the pins more or less prejudicial than Mr. Komisarjevsky several statements?

Most non-defense lawyers might agree that Mr. Komisarjevsky’s frequent admissions of participation in the Cheshire murders would more powerfully sway a jury in the direction of a guilty verdict than the discrete pins worn by family members that so alarmed defense attorney Jeremiah Donovan.

Catching sight of the pins, Mr. Donovan referred to those wearing them as the “Petit posse” and sought to prevent the members of the hanging mob from displaying the prejudicial pins in sight of prospective jurors. The pins, worn in memory of Mr. Petit’s wife and daughters, were intended to support, according to one report, “the education of young people, especially women in the sciences, and those affected by chronic illness and violence.”

Possibly it was at this point, in the early jousting among prosecutors and defense attorneys that usually occurs before any trial’s main event, that some trial watchers may have concluded Mr. Donovan was, in his assault on discreet pins, tilling the ground for future appeals. In death penalty conviction cases, appeals are necessary to run out the clock. And the more appeals the better, because protracted capital offense cases run up a tab. And the more tabs the better, because one of the generic arguments urged by death penalty opponents is that capital punishment is prohibitively expensive.


Since the death penalty itself is both an offense against God and nature, one should use every means at one’s disposal to overthrow it. Extremism in defense of virtue, the virulently conservative Barry Goldwater once said, is no vice. And if one must use a justly convicted murderer as a mere prop to overthrow a moral evil such as capital punishment, well then …

This argument is akin to that used by brother-in-law Roper in the Robert Bolt play, “A man for all seasons. Mr. Roper was asked by Thomas More how far he would go to cage the devil, to which he responded that he would cut down ever law in England to do it, receiving from the soon to be martyred More the following rebuke:

“And when the last law was down, and the Devil turned round on you-where would you hide, Roper, the laws all being flat? (He leaves him) This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down, and you're just the man to do it, d'you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake.”

Roper responds that the law itself has become More’s “golden calf,” a mere fetish that must be overthrown in the defense of a greater moral good.

The real question involved in all death penalty cases – What winds would blow if the law were to be cut down? – is not one that should be decided by clever Ropers committed to subverting death penalty laws. Jurists should aim at justice, which is the giving to all what is due them under the law. If the law must be changed, it should not be changed by legal chicanery – but by sober, morally driven legislators, like More.

Book Review: Taking Back The Courts What We Can Do To Reclaim Our Sovereignty

Taking Back The Courts What We Can Do To Reclaim Our Sovereignty

By Norm Pattis

Publisher: Sutton Hart Press

Price: $22.95

Attorney Norm Pattis, the author of “Taking Back the Courts: What We Can Do to Reclaim Our Sovereignty,” is viewed by other lawyers as a cross examination impresario. If this particular talent is a gift, it is one that in Mr. Pattis’s case has been honed throughout his years practicing law as a criminal defense attorney in Connecticut. Mr. Pattis is used to thinking outside the box – very quickly. He is disputatious, capable of mastering a complex briar patch of facts and legal precedents in quick time and effortlessly applying the relevant points in his summations.

And he has a pony tail.

Pony tails, however, may be deceptive. They evoke the silly sixties, free love, pot and the slow evisceration of the antique morality of benighted backward looking parents of the Woodstock generation. But as Mr. Pattis’ ponytail swishes through the chapters of his book, it moves disturbingly right and left.

Consider chapter 14, “Too Many Lawyers: Time to Revisit the American Rule.” The premise of this chapter – a surfeit of lawyers desperate for work increases costly suits – will not likely be embraced warmly by lawyers desperate for work and hungry for big verdicts:

“What most lawyers will acknowledge, privately, when only other fellow lawyers are around, is that there are too many of us. The result is that many lawyers are desperate for work.

“And what do desperate lawyer do? They sue people. Why not? Access to the courts is inexpensive, and here is no downside. You might always hit a big verdict. And even if they lose, the so-called American Rule has transformed the American civil justice system into the equivalent of a roulette wheel. Why not spin the wheel when the costs of doing so are low?”

The obvious solution to this problem, and the one recommended by Mr. Pattis, is to attach sanctions to losing. In most human endeavors those who lose pay and those who win carry home the trophy: “I see no justice or fairness in requiring defendants, whether they be corporations or individuals, to pay unwarranted legal fees. Why shouldn’t a loser be required to cover the winner’s costs?”

Mr. Pattis proposes to require all plaintiffs to post bonds “to cover the eventual winner’s reasonable legal fees for all the cases they bring,” a common sense reform that would protect the rights of all Americans to obtain justice from the courts, while at the same time affording defendants the opportunity of “recouping their fees when the roulette wheel comes up a loser for the plaintiff.” Flexibility would be introduced into the Pattis rule by making the bond a rebuttable presumption in all civil cases, allowing judges to relax the bond for good cause.

There are 21 chapters in the book, all crafted in layman’s verbiage, some of which have been lifted from Mr. Pattis’ columns in The Connecticut Law Tribune. The last two chapters are devoted to Mr. Pattis’ ardent opposition to the death penalty, and here he is less convincing than Albert Camus, the author of “Reflections on the Guillotine,” a passionate assault on the death penalty in France.

As a defense lawyer, Mr. Pattis is concerned chiefly with the part that has been played in a particularly gruesome Connecticut case by a husband who was the lone survivor of a murderous assault on his family, Dr. William Petit. Following the murders of his wife and two daughters, Mr. Petit has not gone quietly into the good night that shrouds the victims of heinous crimes, and Mr. Pattis fears that remarks made by Mr. Petit to the media might prejudice a jury now considering the case.

On the question of the marginalization of juries, a theme that runs throughout many of the chapters, Mr. Pattis, who provides a much needed in-house view of court proceedings, is informative and convincing. In the real world of courts, judges, juries and trials, justice is sometimes a victim of process, tedious and endless, or experts who lack expertise or judges who lack judgment or infantilized juries.

Among the questions asked and answered in “taking Back The Courts” are these: What would happen if a jury were to be made aware of the prospective sentence that could be imposed on a defendant before its members rendered a verdict? If the ignorance of a jury in such matters is bliss, can we rely on blissful ignorance to achieve justice? Evidence supplied by so called “forensic scientists” can be arrived at scientifically or not, but is the evidence supplied “scientific” simply because it is furnished by a forensic scientist? What is added to the word “science” when it is combined with the word “forensic” – other than a kind of magical incantation that bewitches juries and judges? Is expert testimony true simply because the person testifying is festooned in credentials? If the expert is paid for his service in rendering testimony, does the testimony become suspect? Suppose a juror were to raise his hand during a trial and ask the judge what sentence would reasonably be attached to a finding of guilty in a specific case? What would happen? Why are juries rather than judges permitted to determine sentences in capital felony cases alone but not in other cases? Is plea bargain justice just?

In Chapter 13, “Experts for sale,” a title one likes to think may have been drawn from Lucian’s savage second century satire “Philosophers For Sale,” Mr. Pattis has some fun with expert testimony, which is often based, he says, on very questionable science.

Mr. Pattis points to a National Academy of Science (NAS) report on the forensic use of science that splashes cold water in the faces of prosecutors who use junk science to obtain convictions. The report recommends that forensic labs and investigations should be independent of “law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed… With the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” heady and cautionary stuff.

Mr. Pattis has more than once heard prosecutors at trial urge judges to admit contested evidence: “’The state cannot prove its case without the evidence, your honor,’ the argument goes. To which I typically respond: ‘So what?’ The rules of evidence require reliable evidence. The trial deck is not supposed to be stacked in favor of conviction. But the deck is so stacked. And few judges seem prepared to do much about it.”

Impatient with conventional nonsense and cant, Mr. Pattis, pony tail swinging like a baseball bat, here offers some necessary correctives.