Judge Sentelle
Breyer lectures on "originalists"

Wanted: Lawyer With Guts

Another act in the macabre theater of the Michael Ross case unfolded yesterday. The serial killer testified that he is willing to submit to further competency tests if it will help his lawyer retain his law license. The result? There just may be  more hearings. Connecticut really is a state of many wonders.

Ross told Superior Court Judge Patrick Clifford that he did not want to stop his execution. He was prepared to die last week. But after United States District Court Judge Robert N. Chatigny brow beat Ross' lawyer, the execution was stopped.

"I did not consent to the execution being put off that night," Ross told Judge Clifford, his voice shrill with emotion. "Attorney Paulding, because of his state of mind, felt he needed 48 hours. ... He did that on his own. I don't fault him for it."

Judge Clifford has postponed any hearing for a week so that Paulding could decide whether he could continue to represent Mr. Ross.

Paulding was apparently as shaken as was Dorothy after her first meeting with the great Oz hours after Chatigny threatened him with disbarment if the lawyer did not stop the execution.  "It was clear to me he was very shaken," Ross said. "He was white and shaking. Attorney Paulding told me he was in no position to make a decision and went to the commissioner and asked for a 48-hour stay."

Ross' assessment of "death-row syndrome," the theory that a growing band of officious intermeddlers seek to force down his throat?  "All this information is bogus," he said. "I know I'm competent."

Perhaps the only real question in the hours before the execution was to take place was whether Paulding was competent. State's Attorney Kekin Kane told Judge Clifford:  "The state did feel the defendant had a right to be advised by competent counsel what his legal rights were," Kane said. "It was obvious to the state as of 11 o'clock at night that Mr. Paulding was in no condition to give that advice."

Clifford now worries he may not be able to find a lawyer willing to represent Ross in his quest to die. Judicial intimidation can do that, the judge ventured.

It is unclear why another competency hearing is necessary. The State Supreme Court has already considered much of the evidence thrown at the courts in the days before the execution was set, and it has concluded the evidence is not meaningful. Comes now affidavits from a former Department of Corrections employee that the conditions on death row are harsh. And five of the inmates on death row are now on a hunger strike to prove the point.

The law is bending here to the breaking point. We have concluded that death is not a cruel and unusual punishment as a matter of law under the Eighth Amendment, and Ross is condemned. Can we say as a matter of the Fourteenth Amendment's due process clause that a man condemned cannot choose to die?

I would hope to be able to secure the assistance of a physician to die were I terminally ill and suffering. I do not think we need to secure a right to die. Last I knew, it was not one of life's options. Necessity beckons and we ought rather to ask by what authority does the state seek to compel us to live?

Oh, I know the presumption about the irrationality of suicide. It is useful in most cases. But it can be rebutted. Michael Ross has effectively rebutted it with his waiver. The argument about the cruelty of the conditions is really just another restatement of per se opposition to the penalty. Of course it is cruel to put a man in a cell and tell him to sit tight until we can muster the will and means to kill him.

Death row syndrome? Yes. But those suffering from it are the intermeddlers who seek to substitute their judgment for Mike's. It is wrong to kill, but once the decision to do so has been made, can we confidently say that the man to be killed has no voice.

The death penalty should be abolished. But it has not been. We torture Ross now with writ after writ and theory upon theory designed to plumb the secret regions of the condemned man's mind. Death is impenetrable; no logic can square it with the purposes of living. If we as a society have chosen to kill, can't a condemned choose to die?

Need a lawyer for Mike, Judge Clifford? Give me a call. You know the number.