Habeas Corpus - Chatigny and Ross

In a post last week, I discussed Fox "news" coverage of how Judge Chatigny's confirmation hearing had been delayed due to allegations about his conduct in the Michael Ross death penalty case.*

*There were also "concerns" that he was pro-sexual offenders.  But those were more than ridiculous.  But who knows, maybe those crazy allegations will sink his nomination.

I wanted to follow up because Fox's coverage of the allegations was, as you'd expect, horrendously unbalanced and unfair. It was more like a rightwing hit job.

And let me just say that I don't have a dog in this race.  I don't know much about Chatigny and, at this point, it doesn't matter to me if his nomination crashes and burns.  But Fox's "coverage" was just despicable.

Of course, it did not take much for me to get the full story of what happened.  All I had to do was read the Second Circuit's public opinion. See In re Charges of Judicial Misconduct, 465 F.3d 532 (2d Cir. 2006).  The opinion itself is short, stating that the complaint was dismissed.  But the opinion annexes (and makes public) the detailed report of the special committee assigned to investigate the complaint.

Preliminarily, media matters did a thorough takedown of Fox's coverage of this.  They point out that, at the time this occurred, legal experts came to Chatigny's defense.  It appears to be mostly rightwing news outlets that made the most noise about all of this.

In this post, I'll respond to my own questions about the allegations.  Here is what I said in the previous post:

What did Chatigny do?  Apparently, he stayed the execution twice.  Both times the Second Circuit reversed the stay orders. In addition, there is a transcript in which the judge threatened to go after the defense attorney's law license because he was not attempting to delay the execution.  It seems that the defendant wanted to go through with the execution, but another inmate had written to the judge saying that mental health officials at the prison had been "brainwashing" the defendant to give up his court challenges.  In addition, Chatigny made comments about the serial killer in which he stated that the killer never should have been convicted, and was otherwise not as culpable as other killers, because he had a sexual sadism disorder. 

What to make of that stuff?  Obviously, judges stay executions all the time for countless reasons, so that doesn't mean much.  The stuff about going after the defense attorney doesn't quite cross the line for me, but it does seem a bit much.  I don't think judges should necessarily threaten attorneys in that way.  But I hesitate to pass judgment without seeing the entire transcript.  As for his comments about the defendant, I'd like to know the context in which they were made.  In isolation, they make me uncomfortable (which I am sure is the reaction of most people, like me, who don't know anything about the case). 

To me, the biggest real problem, if true, is that in 1992 (before he became a judge) Judge Chatigny had asked to file an amicus brief on behalf of Ross in one of his appeals.  Even worse, he allegedly did not disclose that to the parties while presiding over the Ross case in federal court.  That seems like a problem to me.  If true, it shows very poor judgment for a judge.

After reading the Second Circuit decision, all of my concerns were allayed. Honest and accurate journalism would have reported all the stuff I am about to discuss.  But of course Fox isn't honest or accurate.

I'll start by saying that the Second Circuit took the allegations seriously* and appointed a three judge committee to investigate them.  The panel consisted of (then) Chief Judge Walker, Circuit Judge Leval and Chief District Court Judge Mukasey.  The membership is significant.  Walker is a Republican appointee and a cousin of the Bush Family.  Mukasey ended up a rightwing hero during his stint as Attorney General.  While he was a Clinton appointee, Leval is clearly a moderate.  This was a tough set of judges.  And their conclusion was that there was no misconduct and Chatigny acted reasonably.  That should have been central to any coverage of this matter. 

* I also kind of think that the court took them more seriously than warranted.  The prosecutors who submitted the complaint simply filed the complaint and then declined a subsequent request for any type of hearing on these matters.  To me, that's pretty telling as to how much they truly believed in how far they would get with these allegations.  It feels like a hit-and-run complaint.

Let's talk about the allegations that I discussed in the earlier post.* First, as to the recusal issue, this was my biggest concern.  Chatigny told the committee that he simply did not remember his earlier involvement in the case.  If he had remembered, he would have recused himself.  That makes me feel a lot better.  Chatigny clearly understands when recusal is appropriate.  The panel found that all of the evidence supported Chatigny's statement that he forgot about his involvement in the case.  I was not as persuaded as the Second Circuit was by the evidence -- I don't think I could have possibly forgotten whether I participated, even slightly, in the only death penalty case in the State that I lived in -- but my opinion on that doesn't count.  His involvement was miniscule, never directly taking a position in the case, and it occurred over 13 years before the federal case.  The committee concluded that there was no misconduct at all.  Judge Chatigny's and the committee's conclusions should have been specifically reported.  They were barely mentioned.

*Actually, I will not talk about the stay orders since the Committee found that allegation to be "entirely without merit."

There's another interesting part about this allegation noted in the opinion.  Chatigny's earlier involvement in the case only came to light when a Republican operative (who refused to reveal his source) passed a "rumor" on to the prosecutor, who himself had no memory of Chatigny's involvement.

Kind of looks like the right has been going after Chatigny for years now.

As for the allegations about Chatigny's actions in the case, I think it's important to point out the context in which all of them occurred, as the committee noted right up front in its report:

The proceedings which were the basis of the charges against Judge Chatigny were highly unusual and emotional. This was the first death penalty to be carried out in the state of Connecticut in over 40 years. As noted, these events occurred days before Ross's scheduled execution. Although Ross's competence previously had been determined by the Connecticut courts, three new pieces of pertinent evidence came before Judge Chatigny-a psychiatrist's testimony, a letter from a prisoner at Ross's institution, and a statement from a retired prison official, all of which supported the assertion that Ross's competence was impaired.

Given the new evidence raising the possibility that Ross may have become incompetent and therefore not legally able to waive legal rights, Judge Chatigny became persuaded that, before Ross could be permitted to proceed to his execution without raising available legal challenges, his continued competency needed to be confirmed. His lawyer Paulding, however, believed himself bound to carry out his client's instructions and was refusing to take steps to pursue and test the new evidence supporting incompetence. The judge believed that, in the face of evidence suggesting Ross's incompetence, Ross's attorney was obligated to investigate Ross's competence before following Ross's instructions to waive all challenges to his execution. The proceedings that are the focus of the complaints involve Judge Chatigny's efforts to persuade Paulding that he was professionally obligated to pursue the evidence indicating possible incompetence. These efforts were ultimately successful: further competency hearings ensued, prior to Ross's eventual execution.

Put simply, unusual situation led to unusual actions.  In fact (note to self), the facts here would make a great law school hypothetical.  One would also think that Fox would at least mention how unusual all of this was.  Is it surprising that they didn't?

Turning to the allegations, there was the threat that Chatigny would take the lawyer's law license.  I was concerned about it.  But the decision, once again, made me feel much better about Chatigny.  He regretted the excessive words and any embarrassment he may have caused to the court system.  He also apologized to the attorney directly.  Clearly, Chatigny was contrite.  As the committee noted, the attorney himself did not view it as a threat and he was not the one who filed the complaint.  Once again, very, very telling. 

The committee concluded that there was no misconduct.  First, it did not view the language as a threat.  It concluded that the statement was far too ambiguous.  It emphasized, "The words cannot be read in isolation."  I guess Fox neglected to read this sentence.  The committee pointed out that Chatigny made these statements in an urgent situation when he believed that there had been a "breakdown in the adversarial process."  It concluded that Chatigny's actions were not unreasonable.  The committee noted that Chatigny's statements to the committee demonstrated "appropriate self-examination and an awareness of the possibility that his words could be misconstrued."   

Finally, there were the comments that seemed to indicate that Chatigny did not believe that Ross was guilty of his crimes.  These made me uncomfortable.  But I emphasized that the context would probably shed a lot of light on the comments.  And by golly, it does!  Why does this not surprise me?  And why does it not surprise me that Fox took the comments out of context?  This is getting redundant.

Chatigny emphasized at the time that he made the comments that they were being made "in a light most favorable to Mr. Ross."  Chatigny actually said it twice.  Chatigny later described his intent to the committee.  He was trying to send a message to Ross that his arguments would be heard and he would be treated fairly by the courts.  Chatigny believed that the statements were being misconstrued.  Nevertheless, he "regretted  making those comments."

The committee concluded that there was "no reasonable indication that Judge Chatigny acted out of bias or partiality."  As to these particular comments, the committee dismissed them as being "mischaracterized."  It concluded, "They characterized the evidence when seen in the light most favorable to Ross."  Case closed.

Fox should be ashamed for the way they slanted their coverage.  But, of course, not giving the whole story was precisely their intent.  The reputation of this judge was irrelevant.  Their partisan agenda was all that mattered.

In my next post, I am going to lament how Fox's shameful behavior will probably have its intended effect. I highly doubt that Chatigny will get confirmed.