Death penalty case holds up nominee for 2nd Circuit

In 2005, U.S. District Judge Robert Chatigny warned a defense lawyer of dire consequences if the lawyer did not do more to try to delay the execution of his client. “I’ll have your law license,” Chatigny warned at one point, in a 55-minute conference call.

The incident sparked a judicial ethics investigation of Chatigny, who sits in the District of Connecticut. Although the judge was cleared of misconduct and he apologized to the defense lawyer, Republicans are reviewing the case as they weigh whether to support Chatigny’s nomination for a seat on the U.S. Court of Appeals for the 2nd Circuit.

The Senate Judiciary Committee was scheduled to hold a confirmation hearing Wednesday on Chatigny’s nomination, but the hearing has been postponed indefinitely. Republican senators requested more time to review the death penalty case and other parts of Chatigny’s record, and Chairman Patrick Leahy (D-Vt.) agreed to put off the hearing, committee aides said. Fox News first reported the postponement.

A spokesman for Sen. Jeff Sessions (R-Ala.), the Judiciary Committee’s top Republican, said GOP senators “asked for an extension to review [Chatigny's] long record, particularly in light of the unusual speed with which his hearing was scheduled.”

President Barack Obama nominated Chatigny to the 2nd Circuit two weeks ago on the recommendation of Sen. Chris Dodd (D-Conn.). Senators usually have a month or more to prepare for the confirmation hearing of a circuit nominee.

In a letter dated March 5, local Connecticut prosecutor Michael O’Hare wrote to Leahy and Sessions that he is still dissatisfied with Chatigny’s conduct in the case of serial killer Michael Ross. The judge’s actions, O’Hare wrote, “call into question his suitability to serve” on the appellate court. He volunteered himself and another prosecutor to testify at the confirmation hearing.

Asked about the criticism, an Obama administration official referred to the report from the 2nd Circuit’s Judicial Council clearing Chatigny of wrongdoing.

Chatigny has been a district judge since 1994. Previously, he was a criminal defense lawyer in Connecticut — filmmaker Woody Allen was among his clients — and, in the early 1980s, an associate at Williams & Connolly in Washington.

The planned execution of Ross caused a storm of controversy in Connecticut in 2004 and 2005. Nicknamed the “Roadside Strangler,” he was sentenced to death 1987 for the killing of four teen-age girls in the early 1980s. He admitted to raping and killing other women, as well.

Ross decided to halt appeals and accept execution, but some observers questioned his mental competence, in part because of the poor conditions of the state prison he lived in. Ross’ attorney, T.R. Paulding, said Ross was competent, and he pushed for the execution to proceed. The state had not executed an inmate in decades.

In a conference call with attorneys in January 2005, Chatigny tried to persuade Paulding to change course. “What you are doing is terribly, terribly wrong. No matter how well motivated you are, you have a client whose competence is in serious doubt and you don’t know what you’re talking about,” he said, according to a transcript of the call.

Paulding responded by requesting a delay in the execution. A state judge later found Ross to be competent, and Ross was executed in May 2005. But seven prosecutors, including O’Hare, filed an ethics complaint against Chatigny with the 2nd Circuit.

A three-judge panel, including then-U.S. District Judge Michael Mukasey of the Southern District of New York, investigated and recommended that the complaints be dismissed. They were in July 2006.

“It is clear the judge’s concern was to repair what he perceived as a breakdown in the adversarial process, resulting from an attorney’s insistence on adhering to his client’s expressed desire to waive judicial review and consent to his execution, in spite of indications that the client might be without competence to make such a waiver,” the panel wrote.

The prosecutors also complained that, while still in private practice in 1992, Chatigny represented the Connecticut Criminal Defense Lawyers Association and applied to file an amicus brief in one of Ross’ appeals. (The actual brief was never filed.) Prosecutors said Chatigny, when Ross’ case came before him, should have recused, while Chatigny told the 2nd Circuit panel in a sworn statement that he had forgotten about the 1992 application. The panel wrote that it had no reason to doubt Chatigny’s statement.

O’Hare, in his letter to senators, made clear that he disagrees with the panel’s findings. The judge, O’Hare wrote, “completely abandoned the role of neutral and detached magristrate and instead became an advocate for the position held by the parties who were seeking to stop the execution of Michael Ross.”

Chatigny briefly addressed the controversy recently. In response to a standard Senate questionnaire, he included the Ross case among the 10 most important cases he has presided over.

David Ingram can be contacted at [email protected].

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