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Arguments From Death Row

Lawyers Challenge Fairness Of Capital Felony Cases

By KATIE MELONE, Courant Staff Writer

December 14, 2007

SOMERS — - In an unusual court proceeding Thursday, death row inmates were seated feet away from each other on a prison gym floor, united in purpose but shackled and separated by partitions resembling office cubicles.

For three hours at Northern Correctional Institution, the inmates' attorneys argued against dismissal of their challenge to the fairness of the death penalty. For security reasons, the public was barred from the hearing, but it was broadcast live in a courtroom at Superior Court in Rockville. The camera, however, provided few fleeting glimpses of the inmates; they remained silent throughout the proceeding.

Seven inmates — white, black and Hispanic — have claimed in court papers that there is racial and geographic disparity in the meting out of capital felony charges and the death penalty.

The group now awaits a decision from Judge Stanley T. Fuger Jr. on the motion to dismiss, a move the state was arguing for on Thursday. It could be months before a decision is handed down.

So far, the case has been consumed by the issue of a yet-to-be released but completed study that the public defender's office commissioned in 1998 on racial bias in the administration of the death penalty.

David Golub, the lead attorney for the inmates, spoke for the first time about the "phantom" study, rejecting the state's claims that it was withheld because it fails to confirm claims of racial bias. Golub instead said that the study, completed in 2003, is consistent with the findings of a second study the public defenders commissioned, completed on Nov. 30 by a Yale Law School professor.

Among other statistics, the Nov. 30 study states that blacks are more likely to get the death penalty than whites. The second study, Golub said, was necessary because the first only covered cases until 1998. The state has raised an eyebrow because the first study was said to have cost hundreds of thousands of dollars at taxpayer expense, and the second study cost $256,000, and took 4½ years to complete. The public defenders office has also refused to release the study publicly or to prosecutors, categorizing it as work product, according to Golub.

The claims of racial bias in the current case originated in 1991 with defendant Sedrick Cobb, according to Senior Assistant State's Attorney John Massameno, who represented the state on Thursday at the hearing.In 1999, the state Supreme Court ordered that Cobb would have to take up his racial bias claim in a habeas petition, and, in 2003, the court ruled that all death row inmates who share that claim had the right to pursue it in a consolidated case.

Massameno wants the petitions dismissed because, he argues, the inmates' attorneys have since then sought extension after extension on completing their study, and in doing so, are abusing a defendant's right to challenge his incarceration. He also disputes the worthiness of the Nov. 30 study, saying it "wouldn't pass muster in an introductory statistics course."

"After years of delay even I have limits to the ability of my patience in dealing with counsel that appears unwilling to follow the normal rules and procedures to litigate this case," Massameno said. "We don't think it's minor, we don't think it's quibbling. We think it's symptomatic of an approach to this case that in capital litigation, often the strategy that is used by those sentenced to death is delay. Because delay is winning. It is relief in and of itself."

Golub said there is no basis to dismiss the petitions. He said the delays on the study were due to its complicated nature.

"The idea that his could be done overnight ... it reflects a misunderstanding of the process," Golub said.