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September 3, 2010

"Death Penalty Advocate Is a Challenge for the Defense"

The title of this post is the headline of this notable article in the New York Times reporting on an interesting capital case in Connecticut.  Here are excerpts from the piece:

In the three years since his wife and two daughters were killed at his home in Cheshire, Conn., Dr. William A. Petit Jr. has become perhaps the most passionate and visible advocate for the death penalty in Connecticut.  More than once he has indicated that the ultimate punishment ought to be imposed on the two longtime criminals who are charged with killing his family.

Now, as the trial of one of the men, Steven J. Hayes, is set to begin on Sept. 13, defense lawyers are publicly showing their frustration with Dr. Petit.  It is a tactic that is fraught with danger for them: This is a man, after all, who is often described as enduring unfathomable loss.  Criticism of him has been virtually unheard of since the crime made him the subject of widespread sympathy.  Also, if they publicly rebuke him, they could violate a court order directing them not to comment publicly.

But some say the defense has little choice.  Dr. Petit’s advocacy of capital punishment, experts on the death penalty say, presents as much of a threat to the goal of avoiding that outcome at trial as anything the prosecution is likely to present in court....

In legislative testimony and interviews, Dr. Petit has said that his wife and daughters already received the death penalty at the hands of the two men charged in the 2007 home invasion and that people who commit such crimes “no longer have a right to exist in this society.”

He has responded to reporters’ requests for comments with statements made in front of television cameras assembled outside the courthouse here.  This summer, during one such session, he seemed to acknowledge that he had a broad role in a statewide debate over capital punishment.  He cited a poll showing support for the death penalty and urged “the people of Connecticut to get out and vote” for candidates who favored capital punishment.

In court this week, lawyers for Mr. Hayes (who is to be tried for the killings before Joshua Komisarjevsky, the other defendant) sharply criticized Dr. Petit for holding “daily press conferences” and suggested that he was trying to prejudice the jury.  “I don’t think we can sit here taking a daily battering,” the chief defense lawyer, Thomas J. Ullmann, said during an argument in court.  He threatened to hold his own news conferences to counter Dr. Petit’s, in violation of the order directing the lawyers in the case not to speak about it outside of court.

Dr. Petit has noted publicly that the court order does not direct him to refrain from commenting on the case....

Jurors’ impression of whether the victim’s family members favor execution has been shown to be a major factor in whether a defendant is sentenced to death, lawyers who have tried capital cases said.  United States Supreme Court rulings make it clear that victims’ family members are not permitted to tell jurors that they want execution, in part because of the power of such emotional appeals.

Capital defense lawyers say they are often confronted with victims’ family members calling outside of court for execution.  But several of the lawyers said the unusual place Dr. Petit occupied in Connecticut made his out-of-court comments especially potent....

[S]ome death penalty proponents say Dr. Petit’s unusual role in Connecticut may be worrisome to the defense for an additional reason.  They say crime victims who are pro-death penalty seldom get the level of public attention that he has.

In other cases, when the relatives of murder victims have said the defendants do not deserve death, they have been embraced by defense teams, creating something of a double standard here, said Robert Blecker, a professor at New York Law School who is a nationally known proponent of the death penalty.  “When you have survivors who are against the death penalty,” Professor Blecker said, “the defense is perfectly capable of — and does — parade them in public to call for life.  So why, when you have an articulate survivor who is in favor of the death penalty, does it suddenly become unfair?”

September 3, 2010 at 10:16 AM | Permalink

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Comments

I am a long-time defense lawyer and, not surprisingly, an opponent of the death penalty. Notwithstanding my background, I think Dr. Petit is within his rights. Unless the court imposes a gag order on him, which would have serious 1st Amendment problems, he is free to speak out. I can understand why the defense doesn't like it, but that doesn't mean they have a right to violate the gag order imposed on the attorneys.
If the prosecutors were orchestrating Dr. Petit's press conferences, it would be a different story, but I don't get the sense that that is the case. Dr. Petit's actions may give the State serious problems in picking a jury, but that is not sufficient reason to silence him.

Posted by: defense lawyer | Sep 3, 2010 11:57:36 AM

is the death penalty a private affair?

Posted by: claudio giusti, italia | Sep 3, 2010 12:23:24 PM

No Claudio, and that's the point. Given that Dr. Petit is speaking about an issue that has substantial significance to the public, it raises serious free speech concerns to silence him. True, he is personally invested in the issue, but that is no reason to silence him--if anything, it makes his speech even more powerful.

I agree with defense lawyer here--I don't particularly like the fact that Dr. Petit is turning the case into such a public affair, but I do sympathize with him for his loss, and I don't believe that his speech should be silenced.

Posted by: Res ipsa | Sep 3, 2010 3:40:00 PM

do the relatives of the 15.000 annual victims of criminal homicides have the same possibility ?

Posted by: claudio giusti, italia | Sep 3, 2010 3:55:07 PM

Claudio,

The possibility is there, and many fall to either side of this issue. Turning possibility into reality however is another matter. It takes whatever combination of eloquence, desire and ability to shake free from other duties, probably other factors as well. Just because 14,995 of the other 15,000 are unable to keep themselves in the public eye is no reason to begrudge the few that manage.

Look at John Walsh or Fred Goldman for other examples of this phenomena. Or Daniel Horowitz for a voice on the other side. I can't fault the vast majority who choose not to rip open their pain on an ongoing basis.

Posted by: Soronel Haetir | Sep 3, 2010 4:49:34 PM

Aw, the poor defense counsel. Waaaaah. Waaaah.

“I don’t think we can sit here taking a daily battering,” the chief defense lawyer, Thomas J. Ullmann, said during an argument in court. He threatened to hold his own news conferences to counter Dr. Petit’s, in violation of the order directing the lawyers in the case not to speak about it outside of court.

Yeah, Mr. Defense Lawyer, you have your little press conferences. Maybe you could explain why you're attacking a guy whom your clients victimized. Good luck with that.

Dr. Petit has every right to say whatever he wants about these inhuman scum. And Ullman can take his righteous indignation and stick it up his ass.

Posted by: federalist | Sep 3, 2010 10:02:02 PM

The one thing conspicuously absent here is any detailed account of what these defendants actually did. I won't go into it except very briefly, to note that it started off with the violent rape of the younger daughter, 14 years old, while the father was forced to watch. Then it got worse.

No wonder claudio wants to keep it hushed up. Human rights an all that.

Posted by: Bill Otis | Sep 3, 2010 10:35:31 PM

I advocate the arrest, trial and summary execution of the lawyer hierarchy that protected and encouraged these vicious predators. Every judge, defense attorney, and parole official who loosed these predators should be executed, after a brief fair trial. The professors who taught them these sick values should be traced, hunted and arrested as well. The hierarchy is about 15,000 people seeking the destruction of our nation and of our way of life. Their arrest can be achieved in a few nights.

That will not happen because these cult criminals control all our government. That leaves only public self help, which has good moral and intellectual justification.

Posted by: Supremacy Claus | Sep 4, 2010 2:58:19 AM

Dr.Petit is wasting his breath. The court system is rigged airtight in favor of lawyer rent seeking. His effectiveness is nil.

Posted by: Supremacy Claus | Sep 4, 2010 3:01:14 AM

I live in a county where capital punishment was abolished in 1877 and reinstated by fascism in 1926 and abolished again in 1948. I live in a country where the homicides dropped from 2.000 in 1991 to 600 in 2002 and they are again dropping. I live in a country with an homicide rate that is a fifth of the American one.
Both our abolitions were followed by a suddenly drop in the homicide rate: in the 20 years from 1948 to 1968 it dropped from 5.5 to 1.4, but every time there is some ugly crime hangman-friends are calling for the come back of gallows. I call it making laws with headlines.

Posted by: claudio giusti, italia | Sep 4, 2010 5:08:21 AM

It's difficult in cases like this one even to feign the presumption of innocence (they MADE one of their victims watch). It's impossible to criticize Dr. Petit after what he's been through.

Still, claudio makes a good point. The death penalty is either a carefully rendered, dispassionate application of justice in a nation of laws... or it's the applause meter on the Gong Show. Can't be both.

Posted by: John K | Sep 4, 2010 10:37:36 AM

This case points up the absolute moral bankruptcy of Woodson v. North Carolina. Death should be mandatory in cases like these.

By the way, it also points up the error of our Supreme Court's august pronouncement that only murder is so heinous as to warrant death. What was done to Dr. Petit is far worse than murdering him. Forcing a father to watch his daughter raped (even if no murders were committed here) should be a death eligible crime. Most fathers would gladly give their lives to prevent that.

Posted by: federalist | Sep 4, 2010 11:40:46 AM

Unfortunately, this crime was committed in Connecticut. It will be a cold day in hell before anyone gets executed there. After this trial, Dr. Petit should start a campaign to make the death penalty real in CT, not just on paper.

Posted by: DaveP | Sep 4, 2010 12:21:08 PM

In legislative testimony and interviews, Dr. Petit has said that his wife and daughters already received the death penalty at the hands of the two men charged in the 2007 home invasion and that people who commit such crimes “no longer have a right to exist in this society.”

Murderers do not legally at least hand out "penalties" to their victims. So, a murder is not a "death penalty."

Posted by: Joe | Sep 4, 2010 1:51:19 PM

The death penalty is “Nothing more than the purposeless and needless imposition of pain and suffering”. May be Mr Petit will have his personal revenge, but the essence of capital punishment will not change and sooner or later Americans will realise that capital punishment is an immoral, indecent, illegal, expensive, stupid, cruel, dangerous, racist, classist, arbitrary, capricious, inconsistent, not working violation of human rights, and that the “the death penalty experiment has failed

Posted by: claudio giusti, italia | Sep 4, 2010 3:15:46 PM

Yeah Joe, you make that argument.

Posted by: federalist | Sep 4, 2010 6:57:48 PM

@Cladio
1. Unlike Italy, abolishing the death penalty in the US is followed by a sudden jump in the homicide rate. Executions are followed by a gradual drop. When the Moratorium began here in 1967 the rate was 6.2. In 1963, the last year of multiple executions the rate was 4.6. When executions resumed in 1977 the rate was 8.8. When executions reached their peak in 1995-2005 the crime rate dropped from 8.2 to 5.5.
2. Useless? How should we deal with the men who kill behind bars?
3. Racist? By that standard we should do away with all prisons.

Posted by: MikeinCT | Sep 4, 2010 8:39:40 PM

Claudio lives in a country where the death penalty is a waste of government time and effort. In Italy, the vendetta will last for hundred years until the murderer and his collaborators have paid the ultimate price with their blood. He is a total hypocrite, since he does not condemn nor even mention that great Italian institution, the vendetta. I believe it is very effective and support it. Government does nothing well, and criminals have no fear of the government is totally biased in favor of its job generating murderer. The vendetta explains the low murder rate in Italy. It should be immunized here, as it is in Italy.

Posted by: Supremacy Claus | Sep 4, 2010 10:36:24 PM

claudio --

You missed "nasty."

Posted by: Bill Otis | Sep 5, 2010 12:13:21 AM

Italy has surrendered to the Moslem, the Mafia, the dolce far niente. It is totally pro-criminal. It allows courageous investigating judges to be assassinated by Mafia, and does nothing about it. Their government makes ours look pretty good. It is horrible, and a failure.

My model of a judge is really a copy of the courageous, investigating Italian judge. The latter gets special judge training, not cult criminal indoctrination as our worthless incompetent jurists do here. At least Mexico is resisting the takeover by organized crime with Navy special forces. These are killing 1000's of drug dealers on the spot. Italy? Nothing.

Posted by: Supremacy Claus | Sep 5, 2010 1:15:32 AM

is it possible to call Mr Supremacy Clause an IDIOT ????
if not I will call him a minus habens

Posted by: claudio giusti, italia | Sep 5, 2010 3:29:52 AM

America Never abolished death penalty. Canada Did, in the same days Supreme Court gave green light to the hangman. Both countries had a surge in homicide rates in the sixties as all the other countries had. From the abolition Canada had a consistent drop in homicides, from 5 to 1,5 per 100.000.
America had a drop, than a jump, than a drop. Only in 1999 the system seemed to work. Unfortunately from that year both executions and death sentences dropped, from 300 DS to 100 and from 98 executions to 50. BUT the homicide rate was nailed at 5.6 or 5.7. Now, with less executions and less death sentences the homicide rate is dropping again, like in Italy.

Posted by: claudio giusti, italia | Sep 5, 2010 6:04:16 AM

Okay, I will Federalist. The common definition of 'penalty,' is "a punishment imposed or incurred for a violation of law or rule." A murderer doesn't do this, the state does. I guess Dexter and others can do so as a vigilante, but I don't think this is why the heinous crime was committed in this instance.

This doesn't make what the person did any less heinous, but perhaps it is not properly knee-jerk for some people.

Posted by: Joe | Sep 5, 2010 11:02:54 AM

@Claudio
Executions were completely suspended in 1967, then all death penalty laws in the country were thrown out in 1972. New laws were upheld in 1976 and executions resumed at a very slow pace the following year. The homicide rate jumped during the 1967-1977 period and was brought down considerably during the period of the most executions from 1994-2004. During that period there were 717 executions.

Posted by: MikeinCT | Sep 5, 2010 11:13:16 AM

John K --

"The death penalty is either a carefully rendered, dispassionate application of justice in a nation of laws... or it's the applause meter on the Gong Show. Can't be both."

Sure it can.

It depends on which people you're talking about. To those like Kent, DaveP, MikeinCT, federalist, Soronel, mjs and others, it is EXACTLY a carefully rendered application of justice (indeed the most carefully rendered in the world, ever).

There are others who stand outside the prison on execution night and scream "Fry 'em." Those people have a problem, you bet. So what? Are you telling me some fringe abolitionists DON'T have a problem? Really?

Do you think the 80% of your fellow countrymen who wanted McVeigh executed were all lunatics?

What you need to understand is that to disagree with you is not to be crazy.

Posted by: Bill Otis | Sep 5, 2010 5:34:33 PM

Hey Joe, ya ever hear of a rhetorical device? Dr. Petit is smart enough to know the difference between murder and the death penalty. Your "argument" is so besides the point as to almost be irrelevant.

Perhaps, Dr. Petit is referring to the fact that these miscreants had long and dangerous criminal records and were allowed to be free by a far too lenient state. One of these animals had a string of home invasion type burglaries (i.e., breaking in when people were present). Under any rational system of justice, he would have been incarcerated for a very long time and aged out. But alas, he was not.

It never ceases to amaze--libs/Dems get so worked up about some criminal's fate, yet the blindingly obvious injustice of what the Petit family had to suffer at the hands of a lenient state is somehow conveniently forgotten.

Posted by: federalist | Sep 5, 2010 10:03:08 PM

Ah, so if one argument doesn't work, go for another, and go for the cheap political shot too. I'm not sure how much that really respects the pain of the family, but maybe you are getting some sort of satisfaction out of it.

Since I referenced the "heinous" nature of the crime and all, I realize the nature of the criminal here, though sorry if I didn't toss in an "animal" or something. As to your latest spin, the quote again:

In legislative testimony and interviews, Dr. Petit has said that his wife and daughters already received the death penalty at the hands of the two men charged in the 2007 home invasion and that people who commit such crimes “no longer have a right to exist in this society.”

You say this is a response to the state being too lenient. But, "received the death penalty at the hands of the two men" suggests to me that "the two men" inflicted the death penalty. "At the hands of" sounds like they are the people (who again I said were heinous -- sorry if I was so soft) who inflicted the penalty.

I also in no way said anything about the legitimate penalty to be inflicted, only that the state is the one that inflicts such penalties. Like "the victim seems to be on trial," my point was to point out what sometimes is an error in terminology. The criminal defendant is the one on trial; the state the one the inflicts "penalties." So, I'm unsure how "worked up about" their fates I was either.

As to rhetorical devices, have you heard of the idea that a rhetorical device might be used wrongly? I'm not saying anything about the murderers, the right of Dr. Petit to speak or any such thing. Not quite P.C. enough though, I guess.


Posted by: Joe | Sep 6, 2010 8:55:49 AM

"What you need to understand is that to disagree with you is not to be crazy."

Maybe. Let me think about that.

It must be noted, though, in a previous exchange you corrected me for saying I understood the "anger" that seems to drive DP enthusiasts. No, you said, the DP is the product of careful judgment, not anger.

Have to say, Bill, I'm feeling a lot of anger in this thread.

Posted by: John K | Sep 6, 2010 10:32:29 AM

I do not think America is the lone place where DP is a deterrent for crime.
I suggest to read the works of Jeffrey Fagan.
At any rate I see that from 1984 to 1991 every things raised: death sentences, executions AND murders. In 1991 America had 25.000 criminal homicides, Italy 2.000. Ten Years later America had 16.638 and Italy 638.
If DP is a deterrent it works only for Americans.
Since then death sentences dropped as executions, but homicides did NOT rise again.
I suggest to search a less funny justification for state sponsored murders.

Posted by: claudio giusti, italia | Sep 6, 2010 11:18:55 AM

@Claudio
The statistics indicate it works for my country, but not for yours. In which case we'll keep and you'll abolish it. Seems fair.
As for your comments about Dr. Petit being allowed to call for the death penalty it is not that unusual. Thousands of cases of murder, rape, assault and robbery allow victims to testify.

Posted by: MikeinCT | Sep 6, 2010 1:00:00 PM

Why do not you confront the data from american states with and without the death penalty ???????

Posted by: claudio giusti, italia | Sep 6, 2010 2:15:17 PM

Joe, give it up. No one really thinks that your pedantic comment advances the ball at all. And given how obvious that is, your protests about not having posited what you really think ring hollow. As I indicated, Dr. Petit knows the difference between murder and execution. He's speaking figuratively. That you want to snipe about that says a lot about you. You want to argue a real point?

And no, I didn't put any words into Dr. Petit's mouth. Note the word "perhaps". Another rhetorical device. I was using the whole state actor thing to talk about the state's responsibility for this crime. A point which you apparently cannot address. Instead you try to parse language. Were these murders "death sentences"? Who cares? You ever watch "Full Metal Jacket"? Gunnery Sergeant Hartman talks about someone signing his own death warrant--I guess one of the marines should have pointed out to him that an individual cannot sign his own death warrant.

John K, what other emotion (besides disgust and sadness) is appropriate here? These animals didn't have to do this. They could have gotten what they wanted without these awful crimes. These people need to be put down, and it is an outrage that there even needs to be a penalty phase trial. Death in these cases, upon conviction, should be mandatory.

Posted by: federalist | Sep 6, 2010 5:01:10 PM

@claudio
Because those states have different social and economic factors that might impact crime rates. Hell, even the weather helps non-death penalty states. Most are in the North, where the crime rate drops for the winter months.

Posted by: MikeinCT | Sep 6, 2010 6:54:48 PM

American states without death penalty have homicide rates lower than bordering states with it.
Get a look to Virginia and West Virginia

Posted by: claudio giusti, italia | Sep 7, 2010 11:42:01 AM

John K --

"Have to say, Bill, I'm feeling a lot of anger in this thread."

Can't disagree with that. Claudio seems quite angry. And contemptuous.

Posted by: Bill Otis | Sep 7, 2010 9:59:08 PM

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