By Martha J.H. Elliott
The Connecticut Law Tribune
June 10, 1996
Convicted serial killer Michael Ross is disappointed that the state Supreme Court decided last week not to answer seven questions in his case that he and Special Assistant State's Attorney C. Robert Satti Sr. asked the justices to consider. But he is still determined to avoid a full-blown penalty hearing and to accept a sentence of death.
"I am disappointed, but I am hopeful that I can work something out," he says in an interview from Connecticut's death row at Northern Correctional Institute in Somers. "I am not going to give up now. I am still going to try. As far as I am concerned, nothing has changed. I have to do what I have to do."
Ross was convicted in 1987 of the murders of four women between 1982 and 1984, and received six death sentences. Prior to the trial, Ross pled guilty to two Windham County murders and received the maximum sentence of 120 years. In July 1994, the high court overturned Ross' death sentences, but upheld his conviction.
However, Ross has since explained that he does not wish to put the victims' families through another trial.
In November 1995, Ross and Satti signed a stipulation that states that there were aggravating factors in his case, but no mitigating factors, which would prevent execution. The stipulation also says that the appropriate penalty for the crimes is death. Without any legal precedent to guide them, Ross and Satti asked the high court to answer seven procedural questions, including: If the penalty rehearing is held before a three-judge panel, must that panel's decisions be unanimous; can a defendant waive his right to present mitigating evidence; and must the court consider mitigating evidence presented at the first trial?
In February, the court asked the parties to address the issue of whether it was proper for the court to consider the issues raised by the questions and also invited 17 other parties to submit amicus briefs. One of issues that most troubled the court was that it could be deciding issues that might never enter into the case.
During oral arguments on May 1, the court focused on this point. Within minutes, Chief Justice Ellen A. Peters interrupted, saying that the court was being asked to "make a ruling on hypotheticals or events yet to come and choice that the state has yet to make. . . ."
Given the tenor of the oral argument, it was of little surprise to most observers when, on June 3, the court, in a per curiam decision, declined to answer the reserved questions.
"Although we are mindful of the public interest in expediting the finality of judicial proceedings, we are persuaded that it would be imprudent for us to answer the reserved questions in this case at this juncture," the court states. Many of the questions depend on "contingencies which might never arise."
Specifically, the court is concerned that Ross had not formally requested that "a court, rather than a jury, be the decision maker at his penalty phase rehearing, and the state has not yet formally indicated, on the record, whether it would acquiesce in such a case." In addition, as to the presentation of mitigating evidence, "the defendant has not yet waived, after a formal canvass on the record, his right to contest the state's evidence concerning the existence of aggravating factors and his right to present evidence concerning the existence of mitigating factors."
Where Do We Go From Here?
According to Chief Clerk Francis J. Drumm Jr., a 10-day appeal period follows the official publication of the decision in the Connecticut Law Journal on June 11. As long as no one appeals, the case is remanded back to the trial court where the parties have to decide how they wish to proceed.
Whether the stipulation can now go forward is unclear. Although New London State's Attorney Kevin Kane declines comment, Chief State's Attorney John M. Bailey Jr. issued a press release stating, "The Supreme Court's decision not to consider these questions does not mean that the prosecution cannot continue; it simply means that a full penalty phase hearing may now be necessary." Satti could not be reached for comment.
Ross, however, is adamant that he does not want to go to the penalty phase. He is determined to try either to convince the state's attorney to go forward with the stipulation or to work out some new agreement. Ross says he would agree not to present mitigating factors if the prosecutors would limit the scope of their case.
"Until Satti says no, I have to remain hopeful that we can work something out," says Ross. "Maybe there is still some hope. I won't give up until that is clear. If we go through a full-blown penalty phase, it is because Satti forced it, not me. I'll do whatever it takes. . . . It's in his hands. And it stinks because all these years I have been fighting [Satti] and now it's all in his hands.
"I absolutely dread facing those families," Ross says. "I don't know most of them by face, but all I have to do is close my eyes to see Mrs. Shelley crying on the stand. I can still see Mrs. Stavinski. I don't want to go through that again. I don't want them to go through it."
Since March 1995, Ross has been acting pro se, when he released his public defenders because they did not agree with his decision to stipulate to his own death. However, New London Superior Court Judge Joseph J. Purtill appointed solo attorney T.R. Paulding as standby counsel to Ross. Paulding also represents Ross for the limited purpose of preparing briefs and oral arguments to the Supreme Court. Paulding says he expects Ross to continue pro se.
If he can work out an agreement with the state's attorney's office, he will probably continue pro se, Ross says. However, he says if the state's attorney insists on proceeding into a full-blown penalty phase, he may rehire counsel.
Whose Trial Is It Anyway?
While Ross and Satti were ironing out their stipulation, Patrick J. Culligan, chief of trial services for the Office of the Chief Public Defender, filed a motion to intervene as amicus trial counsel so that the trial court could develop as complete a record as possible. Purtill dismissed the motion in September, but Culligan says that his office is discussing whether it should again petition the trial court.
Over the last few months, Ross has bristled at the "help" of the public defenders. He feels that he has the right to conduct his defense as he wishes.
However, G. Douglas Nash, chief of legal services for the Office of the Chief Public Defender, says that while pro se defendants control the guilt phase of their trial, the sentencing hearing has always operated at the judge's discretion. If Ross were charged with robbery, he says, the judge would consider a probation officer's report, letters from interested parties and any other reliable information.
"Why is that different?" Nash asks. "I have never heard someone say, `Give me the maximum,' and the court be forced to give it without considering all the reliable information out there before it does that." Nash says that the court should want even more information in a death penalty case than it does in other sentencing.
The court also has the responsibility of upholding the integrity of the criminal-justice system, and "the court has a responsibility not to let the defense subvert the integrity and reliability of the system in sentencing," comments Culligan.
"On a third level, the Supreme Court has said over and over that they require an adequate record, and they are required to review every death sentence. If there is no record, the trial court is not doing its job," Culligan says. Thus, he says, if the defense does not put on the information, it's up to the trial court to appoint someone to do so. Culligan is not ready to say that his office is the proper party to do that.
"The problem is that the system is not set up to deal with [someone volunteering to die]," says Ann Cole, of Ann Cole Opinion Research and Analysis in New York City, who is a member of Ross' defense team and who opposes the stipulation. "There is always the presumption that the individual is going to do all they can to achieve life. We don't know how to cope with someone who wants to agree to give up their life. Our Judeo-Christian society does not accept self-killing. That's true with Kevorkian and assisted suicide. That's true with abortion. And that's true with the death penalty."
(The Connecticut Law Tribune is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
