Ross moving closer to death chamber after high court rejects public defenders' motion

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by Lynne Tuohy and Alaine Griffin
The Hartford Courant

January 28, 2005

Serial killer Michael Ross has his belongings packed in boxes and is expected to move into the holding cell adjacent to the death chamber today, even as the last bar to his execution is being argued before a federal appeals court this morning.

The state's first execution in nearly 45 years is scheduled for 2:01 a.m. Saturday.

The U.S. Supreme Court, by a 5-4 margin Thursday, vacated the stay of execution issued Tuesday by Chief U.S. District Judge Robert N. Chatigny. The stay was designed to give public defenders the opportunity to present evidence that Ross is mentally incompetent and should not be permitted to "volunteer" to be executed.

The high court's order leaves a temporary restraining order, also issued by Chatigny, in a civil rights lawsuit filed by Ross' father, as the only legal impediment to the execution being carried out.

"We're done," Chief Public Defender Gerard Smyth said, minutes after learning of the high court's order. "The highest court in the nation has denied us the opportunity to present our evidence. There's nothing further we can do."

A small army of public defenders has worked doggedly, often through sleepless nights, to stave off their former client's execution. Because Ross dismissed them four months ago and retained attorney T.R. Paulding to represent him, they tried in vain to assert that Ross is mentally incompetent. Only then would they be permitted to intervene on Ross' behalf.

Since Dec. 28, two Superior Court judges, the state Supreme Court and U.S. District Judge Christopher F. Droney have affirmed Ross' competence. Only Chatigny saw the need for further evidence on whether Ross' confinement for 20 years in a highly restrictive setting led him to despair and his decision to die.

Ross, who has seen three execution dates come and go this week, is said to be relieved.

"He's indicated he's prepared, if this does go forward tomorrow evening," Paulding said. "He's ready.

"He's obviously aware of the fact we still have another hurdle," Paulding said. "He's not convinced it's going forward, but he's much more confident than he was a few hours ago."

Kathy Jaeger, who is both a friend of and spiritual adviser to Ross, said she visited with him Thursday before the Supreme Court issued its order. At that point he was anxious that the high court would leave the stay in place and his fate uncertain.

"I told Michael it's not about us being in control of it," Jaeger said. "The U.S. Supreme Court was the big one.

"He's going to be glad in some respects," she predicted. "But then the reality is going to hit: They're going to kill me tonight."

The last-minute legal wrangling has taken a toll on family members of the victims, some of whom said they struggle daily over whether to read or listen to news reports about the case. Some want to stay apprised of the developments but feel that hearing about Ross each day causes them further anguish.

"You try to follow it in the news and you hear, `It's on,' then you hear, `It's not.' It's so hard to see it get dragged out like this," said Steve St. John, uncle of Tammy Williams, one of Ross' victims. "I find it very difficult from my end to concentrate or even sleep. It seems like there's no end to this."

The Supreme Court's order is a single sentence granting the application by state prosecutors to vacate the stay of execution. But Attorney General Richard Blumenthal - who will argue today in New York that the U.S. 2nd Circuit Court of Appeals should dissolve the temporary restraining order - thinks that one sentence speaks volumes.

"The U.S. Supreme Court decision today sends a profoundly important message that our state's highest court is entitled to respect and the state is upholding the rule of law, which is a vital public interest," Blumenthal said. "There is an interest in finality and certitude in the criminal justice system - not only in the interests of the anguish and pain that may be caused to victims' families, but also in the emotional and financial burden to the state as a whole from revisiting and reconsidering lawful convictions and sentences.

"Our argument to the court of appeals will be that four courts have addressed and answered the issue of Michael Ross' competence," Blumenthal said.

Antonio Ponvert III represents Dan Ross, father of Michael Ross. Ponvert and attorney Jim Nugent filed a complex civil rights claim that the state cannot deprive Dan Ross of his familial relationship with his son if there are questions remaining about Michael Ross' competence and the fairness of Connecticut's death penalty scheme. Although related somewhat to the public defenders' contentions that Ross is incompetent, Dan Ross is suing on his own behalf and doesn't run into the issues of standing as the public defenders did.

Ponvert, who was working into the night Thursday preparing for this morning's hearing, called the state's arguments "frivolous." He said he expected the federal appeals court to understand that Dan Ross has a right to a hearing.

"The state is grasping for any straw they have so they can rush ahead and kill a man who is quite possibly incompetent" and unable to make a decision about whether he should live or die, Ponvert said. "[State officials] should allow due process before they take an irrevocable step in killing another human being."

Ponvert said he recognized that this morning's hearing could be the last effort to save Ross' life.

"Of course I'm feeling the pressure," he said. "I have a client who loves his son and wants his son to live. Keeping his son alive is my goal, and I intend to use every fiber in my brain to accomplish that."

But some of the dozens of lawyers who have been involved in the case said they hold out little hope the temporary restraining order will stand. They believe, in light of Thursday's Supreme Court order, that the panel of three judges will dissolve the stay.

Chief State's Attorney Christopher Morano would not speculate on whether the execution would be carried out Saturday.

"The only thing I can say for sure is earlier today, there were two legal impediments blocking the execution of Mr. Ross. Now there is only one," Morano said. "Where we go from here depends very much on the matter being argued before the 2nd Circuit Court of Appeals."

Some family members have sought comfort from each other.

Linda Brodeur, sister of Debra Smith Taylor, said Edwin Shelley, father of Leslie Shelley, visited her at work this week to lend support.

Brodeur, 52, of Jewett City, is not eligible to witness the execution because Ross did not receive the death penalty for Taylor's killing.

"I would love to be there. I would give anything for that," Brodeur said. "But Ed told me he's going there for all eight victims so my sister will have someone there."

Attorney Michael Malchik, the retired state police detective who persuaded Ross to confess to six murders, said he was relieved by the Supreme Court order, but expressed frustration at continuing legal delays to the execution.

"The people of the state of Connecticut are not stupid," Malchik said Thursday afternoon. "Even though this seems to be a complicated legal issue, what it really boils down to is that the people who are against the death penalty and their attorneys are trying to delay this in any way they can.

"The people of Connecticut understand that. U.S. District Court Judge Robert Chatigny's decisions leading to some of those delays are completely out of step with all the other legal reasoning that has gone on in this case over the last 21 years. At this point, the most important thing is for the families of the victims to get the justice that they deserve."

Public defender John Holdridge, who churned out many of the briefs in the various motions and appeals, was disappointed and cynical Thursday.

"Bush v. Gore strikes again," Holdridge said. "Apparently five members of the United States Supreme Court share John Ashcroft's radical right-wing agenda to spread the death penalty to the Northeast."

The majority deciding to lift the stay consisted of Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. The ruling was opposed by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Earlier in the day, the high court denied the application for an emergency stay of execution filed by the Missionary Society of Connecticut, which is a branch of the United Church of Christ.

The society, citing its longstanding opposition to the death penalty, earlier this month requested a commutation hearing in the Ross case from the state Board of Pardons and Paroles.

In Connecticut, the power to commute a death sentence to life in prison is vested in the board.

Board Chairman Gregory Everett denied the request, saying that only the death row inmate or his lawyer could seek a hearing. Even then, Everett has said, the board has the authority to deny the request for a hearing. The society then launched a lawsuit asking the judge to order the board to grant it a hearing, and claiming the board's lack of written rules and policies is a due process violation.

Superior Court Judge Robert E. Beach Jr. dismissed the suit in Hartford, saying the society had no standing to bring it. The state Supreme Court earlier this week dismissed the appeal.

"It looks like the execution will go through," said the Rev. Gordon Bates, who coordinates the society's anti-death penalty activities.

"We're disappointed in the order in our case, obviously, but not surprised," Bates said. "It's a sad time from our standpoint, regardless of what Mr. Ross says he wants or doesn't want. ... It simply puts the people of Connecticut on the same level of Mr. Ross - taking the life of a man who can't harm anyone at this point in a premeditated fashion. That's precisely what Mr. Ross did."

Courant Staff Writer Edmund H. Mahony contributed to this story.