In a highly unusual habeas corpus proceeding, five death row inmates are arguing that Connecticut’s system of capital punishment is every bit as arbitrary and unfair as Georgia’s was in the years before 1972, when the U.S. Supreme Court declared it unconstitutional in Furman v. Georgia.

To comply with the convicts’ rights to confront witnesses against them, the five condemned men in yellow prison jumpsuits were seated in plastic chairs in a temporary courtroom within a high-security prison for the start of their hearing. With the convicts handcuffed and shackled to metal desks in leg irons and their lawyers shuffling papers nearby, the common room of Northern Correctional Institution in Storrs has become a makeshift courtroom for Rockville Superior Court Senior Judge Samuel Sferrazza.

The press has not been allowed inside. But along with the public, news reporters have been permitted to watch a video of the proceeding from a video feed that has been piped into a courthouse in Rockville, 15 miles away.

The central legal issue being brought by defense lawyers Richard Reeve of New Haven and David Golub of Stamford is that capital charging and sentencing is at best random. At worst, the lawyers are arguing, captial sentencing procedures are unconstitutionally discriminatory.

To get to that point, two diametrically opposed legal experts are preparing to duke it out in the makeshift courthouse.

Even though Connecticut abolished its death penalty earlier this year, 11 men still occupy death row and face death under prior law. Prisoners who have not had their first appeal were not allowed to join the plaintiffs in this civil proceeding. The five, who are seeking life sentences, are Sedrick Cobb, Daniel Webb, Richard Reynolds, Robert Breton and Todd Rizzo.

On the first day of the weeklong hearing, a group of 15 TV technicians, reporters and print journalists gathered in the basement courtroom in Rockville. They spread out with computers and cameras, squatting along the litigants’ tables and jury box to get a closer look.

Back in the makeshift courtroom at the prison, Reeve and Golub took turns questioning Chief State’s Attorney Kevin Kane, in an attempt to elicit answers supporting their allegations of unfairness.

Kane, answering Golub, said the state’s prosecutors did not have formal guidelines for deciding when to seek the death penalty. Rather, he said, the statutes and caselaw provided very specific guidance.

The plaintiff’s expert witness in the case, Stanford University professor John Donohue III, was not available for the first day of the hearing, but was scheduled to appear on the afternoon of Tuesday, Sept. 11. “They were just stalling. It will start getting interesting on Tuesday,” said Stephan Michelson, the expert witness for the state.

Michelson earned his PhD in economics from Stanford. He taught at Reed College and Harvard. He now heads up Longbranch Research Associates, Inc. in Hendersonville, North Carolina, where he owns a jacquard fabric mill. Since the late-1990′s, Michelson has been the state’s expert witness on the issue of statistical fairness in death penalty cases.

The opinions of both men will face off in the habeas case.

Both Donohue and Michelson have each issued a series of weighty reports in recent years, translating the decisions of prosecutors, trial judges and juries into quantifiable scientific terms on either side of the death penalty debate.

Donohue, who earned his a law degree from Harvard before getting his PhD in economics at Yale, taught at Yale Law School between 2004 and 2010. His extensive empirical research crunches statistical data in an effort to ascertain what laws actually work. Donohue’s study — the platform for the petitoners’ case — is the 500-page paper, “Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation From 4,686 murders to One Execution.”

The “one” is Michael Ross, the serial killer who gave up all appeals and in 2005 became sole Connecticut inmate to be executed since 1960.

In 2000, Michaelson was the state’s expert in the of case of State v. David Gibbs. The defendant in that case challenged the composition of the jury, saying Connecticut discriminated against Hispanics in selecting jurors.

Michelson opposed Gibbs’ expert witness, David Pollard, a professor of statistics at Yale. “I beat him. I showed there was no discrimination,” said Michelson.

The case was appealed to the state Supreme Court and upheld. Michaelson said that since then, the fairness of jury selection in Connecticut capital cases has not been challenged.

“The Supreme Court said basically this is it. Michelson’s analyzed the system; the system’s fine. Don’t bring another case,” he said.

Michelson added that he’s surprised Donohue made his study publicly available in the current death penalty challenge. “I’ve never seen a person about to be cross examined on his report, put his report out in public,” he chimed. “He’s got that kind of an ego.”

Both experts have claimed they found egregious errors in the others’ work that required extensive revisions.

Donohue did not respond to a call seeking comment.

Scholars’ Cage Fight

In his reports, Donohue has made no effort to disguise his professional contempt for Michelson’s work — starting in the very table of contents of his report.

“Michelson’s Many, Error-Filled and Hyperbolic Reports,” is the heading for one section of Donhue’s report. In all-capitals heading, Donohue’s paper reads almost like a flame in an Internet argument, skewering Michelson for misunderstanding his field, carelessness, and churning out “concededly incorrect results.” He ridicules Michelson, a non-lawyer, for saying in a deposition that “murder” is a larger category than “homicide.”

Donohue’s study analyzes over 200 cases, some of which prosecutors chose the death penalty, and concludes that “the extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.”

Donohue writes that the rate of unsolved murders has crept upward to a current 40 per cent, and questions whether police and prosecutors resources would be better spent on pursing those matters.

Michelson says that he and Donohue count death penalty cases differently. It can be misleading, he said, to count a case as being a death penalty matter when that charge is withdrawn during plea bargaining.

Sometimes, Michelson said, a death penalty charge is a kind of bargaining chip. The statistical forms the public defenders offices used to gather data about death penalty cases is called the Data Collection Index, or DCI.

One segment of those forms that often remains blank, he said, involves cases where the death penalty is charged, but withdrawn early in negotiations. If there is no hearing on the death penalty, it’s hard to know what was on the prosecutor’s mind, and whether the case legally actually had the potential of becoming a death penalty conviction, due to mitigating circumstances.

One key portion of Donohue’s study is his discovery that Waterbury capital-eligible cases are sentenced to death “at enormously higher rates than capital eligible defendants elsewhere in the state.”

In a small state where prosecutors are not elected, “there is no articulate rationale for tolerating such immense geographic variation in capital sentencing,” Donohue wrote.

Michelson, after analyzing Donohue’s report, even disputed that Waterbury is an anomaly, in terms of capital charging decisions there.

“Here’s the truth about Waterbury. They are not quick to charge. Hartford is indeed a quicker jurisdiction to charge. But when they charge a capital felony, Waterbury — and you know this under [former Assistant State's Attorney] John Connolly — Waterbury was persistent. Waterbury was more reluctant to deal with a plea. So when there was a charge, Waterbury would take it all the way.”

In Waterbury, Michelson found, “Connolly was committing the resources of his district to go all the way with this, whereas other districts would charge a capital felony as a ploy to get you to plead. Connolly wouldn’t accept a plea.”

Unlike Donohue, Michelson does not count decisions by the state Supreme Court as a capital conviction, on grounds that the highest court is applying the law, and is not evidence of bias or arbitrariness.

“Whether there are standards is a matter of case law. It’s up to the Supreme Court to say, this is what we want, as a matter of law.”

In the realm of statistics, he concluded, “Donohue and I simply disagree. And that’s going to be the big battle. I think his study is incompetent, and you can quote me. So we’re in this interesting problem of convincing the judge, who is not a statistician, who’s doing the better job with statistics. Who’s doing a legitimate statistical study?” •