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Death Penalty Bias Case Heats Up, Even After Trial Is Long Over

Jon Lender

Government Watch

4:39 PM EDT, June 22, 2013

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Eight years and millions of taxpayer dollars after it began, the end is finally near in a habeas corpus lawsuit by five convicted killers who claim that Connecticut's death penalty is racially, ethnically and geographically biased. The trial in the case concluded six months ago, and a ruling is expected by fall.

The end phrase of a lawsuit is often a time of quiet before the decision — but this case is actually growing louder.

In recent days, David S. Golub — the lead attorney for the death-row inmates who are seeking to have their death sentences converted to life sentences without parole — fired a verbal salvo.

He told The Courant that he'd filed legal papers last month saying that the state's statistical expert witness, who has been paid more than $1 million so far, ended up agreeing with the inmates' claim that, in Golub's words, "there are statistically significant racial and other disparities in death penalty prosecutions in Connecticut."

"This is a stunning admission by the state's own expert witness that was never revealed until the time of trial," said Golub, of Stamford. Golub represents death row inmate Sedrick Cobb, convicted of capital felony, kidnapping, murder, sexual assault and robbery in a 1989 attack on Julia Ashe, 23, of Watertown.

However, the expert in question, Stephan Michelson of North Carolina, disputed Golub. He told The Courant that Golub's statement was inaccurate because it made too much of his agreement with narrow conclusions of the inmates' expert statistical witness, Stanford Law School professor John J. Donohue III, who also has been hired at taxpayer expense.

"What Golub says is so obliquely related to the case that one must know he has no evidence supporting the [inmates'] actual claims in the case," Michelson said. "I can't say what Golub hopes to achieve. My guess would be that he is trying to prepare the public to be angry at the judge, who will surely find that Golub has not proved his case."

Superior Court Judge Samuel J. Sferrazza is expected to issue a final ruling by fall. The office of Chief State's Attorney Kevin Kane, which has represented the state and opposed the inmates' claims of bias, has until July 1 to file its final brief.

The state legislature in 2012 abolished the death penalty, but only for future crimes. The 11 men on death row still face execution. In addition to Cobb, the other convicted killers who are petitioners in the case are: Todd Rizzo, Daniel Webb, Robert Breton Sr. and Richard Reynolds

Kane, for his part, said Friday that "it's a pendiing case, and I am not going to comment publicly until the case is over."

The arguments that Golub made in his final brief last month — arguments he amplified in his comments to The Courant last week — show the intensity and complexity of the case as it nears its conclusion.

Donohue, on the inmates' behalf, studied 205 death-eligible cases from 1973 to 2007 to reach his conclusions. Michelson, for the state, has done lengthy reports of his own, saying Donohue's research is flawed by incorrect procedures and data, among other problems. Donohue has issued similar criticism of Michelson's work.

Golub, the inmates attorney, provided excerpts from an October trial transcript, in which he asked Michelson if he agreed with a few of Donohue's findings, and Michelson said yes. As worded by Golub in the transcripts, those findings were:

There was "a statistically significant disparity in capital charging based upon the difference [in] the rate of charging for black defendants who killed white victims and white defendants."

"If a black kills a white, there [is] a statistically significant disparity in Connecticut about whether he'll get charged with capital felony as opposed to a white defendant.'

There is "a very strong disparity in capital charging based on the race of the victim being white."

Golub said that Michelson reached those conclusions in August 2010, but did not include them in a written report and did not voice them until last fall's trial. "It's hard to imagine that the legislature would not have voted to abolish the death penalty outright" — instead of just in the future — "if Michelson's conclusions had been revealed in 2010," Golub said.

"This is nonsense," Michelson responded. He also said he had included the findings in his report. "Of course they were in the report. How else would Golub know about them?"

"I did report disparities apparently related to race, in charging. But the case was not about, and cannot be about, who is charged with a capital felony," Michelson said. He said that the issue is sentencing, and there are too many variables beyond the initial charge. For example, convicted killers undergo court hearings on whether there are sufficient "aggravating factors" to execute them. "Being charged "with a capital felony is not the same thing as charged with a pending death sentence," he said.

In sentencing, Michelson said, there was "not a hint of racial disparity."

Michelson quoted a 2010 claim by the inmates that said: "Petitioners allege that their convictions for capital felony and resultant death sentences are unconstitutional, in that: (1) death sentences imposed pursuant to Connecticut's capital punishment scheme are imposed in a wanton, freakish, arbitrary and capricious manner; and (2) Connecticut's capital punishment procedures are impermissibly infected by racial, geographic, and/or gender bias and disparities."

Michelson added: "There is no claim here, unless one reads "procedures" broadly, that anyone is discriminated against in capital felony charging. … That is, what they are yelling about now was not their claim, but is the only disparity they can find."

Kane's office, advised by Michelson, wrote in a pre-trial brief that Donohue's study "included no variables pertaining to factors that are of vital importance to a prosecutor's decision whether to seek the death penalty. "Those factors include the strength of the state's case for guilt of a capital felony and the existence of provable statutory aggravating factors."

Golub said that Donohue estimated that Donohue has been paid about $250,000 so far for his work, including statistical studies and expert testimony, but probably is owed "millions." Donohue and the half-dozen or so attorneys representing the inmates in the case have been paid through the office of the state's Chief Public Defender, Golub said. Golub said he and the other private lawyers are being paid $100 an hour, much lower than their normal rates.

The public defender's office didn't have any estimates of the case's costs to taxpayers readily available on one-day's notice last week.

Kane's office has been using its own staff lawyers to defend the state's position, and has paid Michelson just over $1 million, records show.

Sferrazza presided over the trial for more than 10 days from September to December in a makeshift courtroom inside Northern Correctional Institution in Somers, a maximum-security prison that houses death row. The public could watch on TV monitors in a courtroom at Superior Court in Rockville.

Jon Lender is a reporter on The Courant's investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.