TINA A. BROWN,
Courant Staff Writer
Five of the state's top prosecutors - who usually ask the questions in court - were forced to answer them on the witness stand Friday as defense lawyers for a convicted murderer mounted a challenge to the constitutionality of the state's death penalty.
Compelled to testify by the state Supreme Court, the prosecutors appeared in Superior Court in Hartford to answer questions about how they decide whether to seek the death penalty. Seven more top prosecutors are scheduled to testify next month.
Lawyers for Jesse Campbell III, who faces a possible death sentence for murdering two Hartford women, claim Connecticut's death-penalty law is unconstitutional because prosecutors act in an "arbitrary and capricious" manner when considering capital punishment.
Chief State's Attorney Kevin Kane and state's attorneys from four judicial districts all said they rely on the death penalty law - which spells out crimes for which the death penalty can be sought and factors that must be considered - plus the code of prosecutors' ethics.
Questioned by Ronald Gold, one of Campbell's lawyers, all five said their offices had no written standards or guidelines.
Campbell was convicted by a Superior Court jury in Hartford in 2004 of capital felony, murder and other charges in the killings of LaTaysha Logan and Desiree Privette and the wounding of Privette's aunt, Carolyn Privette, in Hartford.
Capital felony carries only two penalties - death or life in prison. The jury deadlocked when considering whether Campbell should be executed, and Judge Edward J. Mullarkey declared a mistrial in the penalty phase. A new jury will decide Campbell's penalty.
The only state's attorney not subpoenaed to testify was Hartford's James Thomas, whose office is prosecuting Campbell.
Friday's highly unusual proceeding attracted a crowd of spectators, including lawyers, assistant state's attorneys, clerks, interns and at least one judge. The prosecutors had tried to quash defense lawyers' subpoenas, but state Supreme Court Justice Joette Katz rejected their motion in August, forcing them to testify in Mullarkey's courtroom.
Kane, the state's top law enforcement officer, testified first, followed by state's attorneys from the Windham, Middlesex, New Britain and Ansonia/Milford judicial districts.
Kane gave the most detailed answers. He said in his current position, as supervisor of all state's attorneys in Connecticut, and during his more than a decade as New London state's attorney, he used an "operating assumption" that if assistants in his office planned to charge a defendant with capital felony, they would discuss the matter with him first.
"Because of the nature of the case, I expect the assistants to talk to me. I expect assistants to have common sense in cases that would have a significant relevance or impact," Kane said.
Gold's question about the thought process that Kane uses when deciding not to seek the death penalty drew objections from the assistant state's attorneys prosecuting Campbell, Vicki Melchiorre and Dennis O'Connor. They claimed the question violated Kane's "prosecutorial discretion," and Mullarkey agreed.
While Kane was sometimes jovial, Windham County State's Attorney Patricia Froehlich was often lawyerly, but clearly realized her role had been reversed.
"I'm accustomed to being on the other side," she said at one point.
"I know I can't object," she said later. "I can't answer it that way."
Ansonia/Milford State's Attorney Kevin Lawlor was the only witness who said he had received extensive training on how to weigh capital punishment.
Middlesex State's Attorney Timothy J. Liston said several factors were critical. "You better have the facts and the law behind you before you can charge," he said. He added that since he took his job five years ago, "we haven't had a case that met all the criteria."
New Britain State's Attorney Scott J. Murphy said he went by the book the one time he charged a defendant with capital felony. That book was the state law.
All of the prosecutors said they were aware that a panel of senior state's attorneys was created to advise their less experienced colleagues when they had questions about charging a defendant with capital felony. But none of the five said they had used that process.
The hearing is scheduled to resume March 23.
