In 2005, serial murderer and rapist Michael Ross found an
unlikely sympathizer — federal judge Robert Chatigny, who called
Ross’s sexual sadism a mitigating factor in his case. He
threatened and berated Ross’s lawyer into further postponing his
death sentence against this client’s own wishes. Judge Chatigny
sits before the Senate Judiciary Committee today as President
Obama’s nominee to the Second Circuit Court of Appeals.
Ross, called the “Roadside Strangler,” was convicted in 1984
after confessing to the murder and rape of eight different women.
His sick story can be heard in his own words in this series of
YouTube clips. He was given the only death sentence Connecticut
had seen in 23 years, and his attorneys unsuccessfully pursued
all of the usual appeals and habeas actions. After nearly twenty
years of appeals, Ross made the unusual decision to forego all
further post-conviction relief and accept his execution.
District of Connecticut Judge Chatigny entered the picture when a
series of “next friend” actions were brought by Ross’s family and
former defense lawyers claiming, among other things, that Ross
was incompetent to make such a decision. Chatigny’s first hearing
before the Judiciary Committee was rescheduled last month after
the Committee received
this letter (pdf) detailing the judge’s allegedly unethical
conduct at this stage of the case.
Without recusing himself or disclosing his prior involvement with
the original appeal of Ross’s conviction, Chatigny appears to
have acted as an advocate rather than a neutral judge. State
courts had already decided on Ross’s competency, but Chatigny
held additional factual hearings and granted relief on a basis
not briefed by any parties.
After the appellate court and the U.S. Supreme Court vacated his
rulings, Chatigny took the extraordinary move of ordering a
conference call with Ross’s attorney, when appellate courts had
vacated any grounds on which Chatigny could take further action.
In this conference call, Chatigny bullied Ross’s attorney into
ignoring his client’s own wishes and seeking a stay of execution.
The transcript of the conference call shows that Chatigny
repeatedly referred to Ross’s attorney as “facilitating” or
“bringing about” Ross’s execution. Reading the transcript, it’s
as if Chatigny does not even acknowledge that Ross’a own actions,
the rape and murder of multiple women, are the cause of his
execution.
He then expressed his opinion, based on a tour of the prison Ross
was housed in for a number of years, that it was unlikely that a
person in such circumstances could make a knowing and voluntary
choice to accept his execution. He told the attorney that “it
would cause me tremendous unease if I were in your position….I
would need to have an expert who knows why the courts of Europe
will not extradite someone to a place like [that].”
Shockingly, Chatingly cites Ross’s sexual sadism as a mitigating
factor. “But looking at the record in a light most favorable to
Mr. Ross, he never should have been convicted. Or if convicted,
he never should have been sentenced to death because his sexual
sadism, which was found by every single person who looked at him,
is clearly a mitigating factor… He can sit on his hands and sit
mute and he may find not only that the death sentence is set
aside, he may find the death penalty has been abolished. He may
find that he gets the life sentence that he has repeatedly said
he would take in an instant if it was offered to him.”
After this exchange, Chatigny threatened that he would “have [the
attorney’s] law license” if he did not seek a stay of execution
to further investigate his client’s competency, despite the
state’s and the Supreme Court’s decisions on the matter, as well
as the lawyer’s own judgment from working closely with Ross for
years.
State attorneys in Connecticut were so shocked by Chatigny’s
activism on behalf of Ross that they filed a complaint with the
Second Circuit alleging judicial misconduct, and a group of
legislators urged the House Judiciary Committee to conduct an
investigation. The Second Circuit panel, including then Judge
Michael Mukasey, opted not to impose sanctions on Judge Chatigny.
Chatigny wasn’t punished for his conduct, but that doesn’t mean
we should ignore his actions here when evaluating him for a
promotion. It is no surprise that under the unusual circumstances
the panel granted him some room to act outside of traditional
ethical boundaries, and they acknowledged as much in the opinion.
Chatigny’s record shows a disturbing willingness to pick sides.
His record also shows a disturbing view of sexual sadism as a
mental condition that excuses a defendant’s criminal action. Even
as an opponent of the death penalty, I find it unacceptable that
a judge would go to such measures to impose his view of the
morally right outcome.
Unless the Senate is satisfied that Chatigny would not act this
way again on the bench, his conduct here raises serious questions
about whether he should be confirmed for the Second Circuit. This
case is a mere five years old and occurred after Chatigny had
been a federal judge for 11 years. Chatigny will have a hard time
explaining how we could expect anything different from him on the
Second Circuit.
But after years of qualified Bush appointees having their
confirmations blocked because of abortion or affirmative action
positions, it remains to be seen whether our senators care about
a judge’s conduct on the bench.
