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When A Killer Wants To Die

Attorney Andrew Cohen analyzes legal issues for CBS News and

The week's tortuous saga surrounding the planned execution of convicted murderer Michael Bruce Ross throws sharp light on a part of the capital punishment process that often unfolds in secrecy. What responsibility does a lawyer have to the court, and to the justice system, when his capital client says he wants his appeals stopped and his execution hastened? What responsibility does the judge have in a case like that? What about the condemned man? What happens when those responsibilities conflict? And is the system even set up to properly handle these sorts of life-or-death questions?

The center of the storm is Ross, who confessed years ago to killing eight women. He was sentenced to death in Connecticut for four of the murders and had insisted for the record for more than one year that he wished to die and wanted no further appeals filed on his behalf. Taking Ross at his word, Connecticut dutifully scheduled his execution for this past weekend and, for a time last week, it appeared that Ross would be the first person executed in the Constitution State in 45 years. Then, a series of remarkable, dramatic events unfolded, leaving Ross' execution in limbo, a judge perturbed, prosecutors and the victims' families perplexed, and death penalty experts pondering the meaning of it all.

First, Ross' father tried to stop the execution by claiming that his son's death would violate his constitutional right to have a relationship with a family member. The United States Supreme Court quickly rejected that appeal. And it quickly overruled a lower appeal panel that had stayed Ross' scheduled execution to determine whether he was competent to waive his rights. When that happened, and with the clock ticking toward the execution, the judge in the case, Chief U.S. District Judge Robert N. Chatigny, called Ross' attorney, T.R. Paulding, and read him the riot act. Paulding, it seems, had discounted the possibility that his client might now be incompetent to legally waive any further appeals.

There is nothing inherently unusual about a death row inmate wanting to expedite his own execution. Many capital offenders decide for one reason or another to forgo their appeals in order to "escape" the misery of death row. In most of these cases, the competency of the inmate to make this call is unquestioned. The lawyer, convinced that the condemned man's waiver of his appeal rights is "knowing" and "voluntary," signs off on it and the judge overseeing the case does as well, usually after a colloquy in which the judge asks the offender a number of questions designed to ensure competency. The Oklahoma City bomber, Timothy McVeigh, is probably the best-known example of a death row inmate who expedited his own death by ordering a halt to all of his appeals.

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But sometimes, a condemned man says he wants to die quickly when he does not have the legal competency to mean what he says. Sometimes, "death row syndrome" kicks in and a capital offender, under duress, just decides to give up and commit suicide by inaction. Sometimes, the prisoner decides he or she is going to toy with counsel and the courts by zig-zagging back and forth between waiving appeals and trying to pursue them. And, sometimes, a man gets put on death row even though his competency was suspect long before his trial. The Constitution requires the government to ensure the competency of a person before execution. But how that happens isn't always neat and pretty.

In Ross' case, Paulding for a long time went along with his client's death wish even though competency questions had come up before in the case. But last week, just days before Ross was to be executed, Paulding and Judge Chatigny became aware of a letter written by Ramon A. Lopez, one of Ross' fellow inmates. Lopez wrote that Ross had told him "through the air vents" between their cells that he did not want to die. Lopez also accused medical officials at the prison of "brainwashing" Ross. Moreover, a forensic psychiatrist who had found Ross competent in early January suddenly changed his mind and suggested that Ross perhaps wasn't. Meanwhile, Ross had written to a freelance journalist suggesting that he didn't want to die because it would have negatively affected his lawyer, Paulding.

Torn between his client's wishes and these new developments, Paulding did not immediately use the Lopez letter as an excuse for re-opening the competency issue. And that ticked off the judge. In an extraordinary telephone session, Judge Chatigny told Paulding: "you are way out on a limb" and threatened to have the lawyer's license revoked if it turned out that Paulding had misadvised Ross about competency issues. "If I were you," the judge warned Paulding, "before I continued to play this decisive role, I would want to interview Mr. Lopez myself." If you are wrong, the judge added, "you better be prepared to live with yourself for the rest of your life." I have never heard of a judge speaking to a lawyer like that in a capital case and neither did any capital-case attorneys I talked to about this story.

Not surprisingly, Paulding heeded the judge's advice. After contemplating a withdrawal from the case, which would have stopped the execution in its tracks on procedural grounds (the state cannot execute a man who is not represented by counsel), Paulding decided instead to ask both the federal and state courts involved for a stay of execution in order to determine whether Ross has "death row syndrome." After filing the motions, Paulding said in a statement: "New and significant information has come to light that I simply cannot ignore." The execution of Michael Bruce Ross, scheduled initially for last weekend, now is on indefinite hold.

To its credit, Connecticut prosecutors have endured this messy to-and-fro with a great deal of patience and respect. Unlike prosecutors in other jurisdictions, they did not immediately jump all over Ross or his attorney when it became clear that there were problems. Instead, they publicly stated that Ross had to be represented if he were to be executed and that the judicial process had to play itself out in full. Judge Chatigny, meanwhile, isn't saying anything. He declined to comment for this story. Lawyers around the country, however, are scratching their heads about the threats he made to Paulding; especially the threat about taking his law license (which federal judges cannot unilaterally do). Several attorneys I talked to for this story asked me why the judge simply didn't order a new competency review himself, since he was authorized to do so whether Paulding approved of it or not.

But even the judge who pushed Paulding to change his mind played a supporting role in the week's drama. It was Paulding and his client who were at the center of it all. What do other defense attorneys think about the role the lawyer played in the week's events? What do they think about the judge's hands-on approach? The comments below highlight just how tricky is the relationship between the condemned and their counsel; a relationship that necessary must touch upon the hard edges of the law even as it brings out emotions swollen with life and death considerations.

"I don't think lawyers should advocate the death of their clients any more than physicians should participate in executions," David Ruhnke wrote me in an e-mail for this story. Ruhnke, a noted attorney now representing one of the defendants in the Lynne Stewart "terrorism" case in New York, revealed that his defense team colleagues once chronicled "25 changes of position" for one of his former death row clients. "No one should be executed because their wish to die happened to coincide with a court appearance."

Not so, says Nathan Chambers, the defense attorney who represented McVeigh during his aborted appeals process and who was with the bomber when he was executed in Terre Haute, Indiana, in June 2001. Chambers told me that he thinks that lawyers who fight to keep their unwilling clients in the appellate process are "imposing their own ethical and moral judgments on the client." He says he respects the client's autonomy, even if that means doom for the client. "I will persuade the client to fight (on appeal) but if, at the end of the day, the client is making a knowing and intelligent decision in the eyes of the law, the lawyer has an obligation to respect the wishes of his client." The question in the Ross case, of course, was whether his decision indeed was "knowing" and "intelligent."

Jonathan Shapiro, the Virginia attorney who represented sniper John Allen Muhammad during his 2003 trial and who has represented other capital defendants, told me that the sort of "client-centered" advocacy that Chambers follows works fine except in capital cases. "Death is different," Shapiro says. Condemned prisoners too often are in "no position to be making decisions" and when that happens it is up to the attorney to try to "preserve life." There is a school of thought, in Shapiro's view, that indicates that no man could be competent to agree to his own execution while living on death row. That's a standard that isn't likely to gain much traction within an increasingly-conservative federal judiciary.

So there you have it. Three excellent attorneys with more than three different views of the dilemma Paulding faced and still faces with his client. There are no easy answers when it comes to dealing with a death row inmate who wants to stop fighting his fate. There are decisions that are made every day within the criminal justice system that have an enormous impact upon the way law and justice are handed out; decisions that cut to the core of the lawyers who must make them. Sometimes we see and hear about those decisions when they are made. Sometimes we don't. This time we did and, so far, Ross is the big winner — he's alive today, after all, days after he was scheduled to die.

By Andrew Cohen

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