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January 7, 2007

Making prosecutors testify about capital charging

In recent posts on the New Jersey death penalty report here and here, I complained about the report's failure to explore how the death penalty impacts prosecutorial charging and bargaining practices.  Interestingly, this interesting article details that Connecticut may be about to explore these issues through litigation:

Chief State's Attorney Kevin Kane and 12 state's attorneys — who were subpoenaed by defense lawyers for a convicted double murderer — must take the witness stand in Hartford Superior Court next month to face questions about how they decide when to seek the death penalty. That's because state Supreme Court Acting Chief Justice David M. Borden on Friday rejected an appeal by lawyers for the prosecutors, who are members of the executive branch, asking the high court to quash the subpoenas, which were issued by the judicial branch....

[Defense attorneys] Gold and Smith filed a motion asking [Judge] Mullarkey to impose a life sentence "because there are no standards to guide state's attorneys' discretion when deciding whether to seek a death sentence." In their motion, the public defenders argued that there "are no uniform standards" guiding state's attorneys. Such a "standardless system" means that the death penalty in Connecticut "is imposed arbitrarily and capriciously," they wrote. Further, Smith and Gold claimed, such "unbridled prosecutorial discretion" violates defendants' constitutional rights of due process and equal protection, and constitutes prohibited "cruel and unusual punishment because the lack of standards eliminates any rationality or consistency in sentencing."

To substantiate their claims, Gold and Smith asked Mullarkey in July to allow them to subpoena the state's attorneys and the chief state's attorney to question them about how they decide when to seek execution. Mullarkey agreed, but the state filed an appeal....

January 7, 2007 at 10:15 AM | Permalink


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Geez, talk about a never-ending circle.

No standards, so complain. Next will be a set of "guidelines." Then they be later found improper if they are viewed as mandatory.

There will always be some disparities, but the courts have spoken to this repeatedly.

The defense bar has to be careful of what they ask for - they just might get it.

Posted by: Deuce | Jan 7, 2007 9:06:26 PM

Yeah, that whole Constitution thing. Always getting in the way.

Posted by: | Jan 7, 2007 10:01:00 PM

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