Justice Delayed

As we pass the two-year anniversary of the tragic home invasion in Cheshire with still no trial in sight, our thoughts turn to Connecticut's lumbering justice system.

 

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Things might move more swiftly in the Cheshire case if the death penalty were taken off the table. However, because of the gag order it is hard to say whether that has even been discussed. In a 2004 case that also involved Hayes' lawyer, Thomas Ullman, Dearington refused to consider a plea that would result in life imprisonment without parole rather than death, leading Ullman to appeal directly to the judge. The question ended up with a jury, which sentenced Ullman's client to life. It's likely that Dearington is taking a similar hard-line stance. In this case, he could hardly do otherwise.

Petit also knows that his wait for justice would be shortened if the death penalty were not at issue. But as he testified in March, he is unwilling to accept anything less. "Any penalty less than death for murder is unjust and trivializes the victim and the victim's family. It is immoral and unjust to all of us in our society," he said.

In the criminal-justice system the interests of those involved are often at odds, and not just in the sense that ours is an adversarial system. On the one hand, the people most affected, the victims or survivors, impatiently await justice. Yet their voices are rarely heard for years at a time as the system grinds along. "It's a concern," says Walkley, "but at the same time, particularly in capital cases, you're trying to take someone's life. The idea that death is involved makes the whole case different."

"Capital litigation is very inefficient," says Fernow. "How could you make the imposition of the death penalty more efficient and still be just? I don't think it can be. The tradeoffs are substantial. I know a lot of people lament the amount of time it takes to agree to execute someone, but there are an awful lot of good reasons why the process is so painstakingly slow."

Prime among them, of course, is that everyone wants to get it right the first time. It's even more frustrating for all involved if a mistake sends a case back for another trial.

In trying to get it right, the system has gone to extreme measures resulting in a lengthy series of legal procedures, set out in scores of federal and state rulings decisions, to ensure that the rights of the defendant are protected. While the trial judge sets the schedule, he is likely to grant both sides as much leeway as possible. "I think the judges are cognizant that this is a serious matter, and they want to give both sides the opportunity to make sure that they're ready to try the case," says Waterbury State's Attorney John Connelly. "What the court does is prod it along. Most judges know in these high-profile cases that it's being watched, and I think they want to give the impression that they're not dragging their feet."

Even so, as the lawyers prepare a capital case judges must consider a host of factors, which taken as a whole draw out the process. There can be arguments about whether the evidence or statements from the accused were obtained legally, and thus whether they can be used at trial. Evidence collected and witness statements must be shared with the defense, but it takes time to process the evidence before it can be turned over. "As a prosecutor you have to present everything, but you have to tell the story," says Connelly. "Let's say you have forensic evidence. It takes a long time to prepare that. What kind of witnesses do you have? How many do you have? Are they from out of state? Do you have to go out and interview them and bring them in? Do you need to hire an expert witness or witnesses? So there are a lot of those things built into the time in preparing a case. To prepare any case for trial is time-consuming. It's a lot of work if you're going to do it right."

Once the defense has the evidence, it will want it analyzed independently to see if it tells a different story from what the prosecution claims. That testing takes time, too. "The state has all of its expert stuff done before the defense has an opportunity to examine it," Walkley says. "Now you're putting a lot of the timing in getting stuff done in the hands of experts who are not beholden to the courts. Just because you ask them, they can't put everything aside and concentrate on your case. You can't get your psychiatric expert to do it, your DNA expert to do it, your ballistics person to do it, your toxicology guy to do it. The court is aware of that, and it knows that sometimes you just have to let these things take their natural life. Every case has a natural life, and a capital case seems to have a natural life of about three years before trial."

Since their arraignments in fall 2007, the cases against Hayes and Komisarjevsky have undergone a seemingly endless series of pretrial hearings and continuances. Because these cases have drawn international media attention, there also have been detours to settle questions of media access to court documents and evidence-all of which take time.

Justice Delayed

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