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Robert Chatingy, an Obama court nominee, crosses the line from judge to advocate.

By 4.28.10

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.

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About the Author

Stacy Cline is an associate in the Political Law practice group at Caplin & Drysdale. She previously served as Deputy Counsel on Rudy Giuliani's presidential campaign.