As Connecticut prosecutors work to put Cheshire murder suspect Joshua Komisarjevsky on death row, the appeals of those already awaiting execution are moving at what legal experts say is a glacial pace.
Of the 10 men sentenced to death in the state, three have been awaiting execution for more than two decades and two others have been on death row for at least 12 years. By comparison, the average time between conviction and execution in Texas is 10 1/2 years.
Chief State's Attorney Kevin Kane recently told state lawmakers that death sentences "will not be carried out in the near future, given the current state of the legal proceedings. These oldest cases are not cases where the inmate will be exonerated through DNA technology. Guilt is not at issue; it is delay and delay solely for the sake of delay."
Judges, lawyers and victims' families blame foot-dragging by the courts and lawyers, the complexity of the appeal system and a six-year-old, still-pending lawsuit alleging racial and geographic bias in state death penalty cases.
While death penalty opponents continue to call for a repeal of capital punishment, supporters are urging lawmakers to reform the appeal process.
None of Connecticut's death-row appeals have made it into the federal system, where they will go after the state appeals have been exhausted.
Superior Court Judge Carl Schuman issued rare criticism of the process from the bench in June, when he denied the latest appeal of convicted cop killer Richard Reynolds, who was convicted 16 years ago. He blamed prosecutors, defense attorneys and the courts for not moving the case forward and wrote that the "lethargic movement of this case is contrary to society's need for finality of convictions," adding that it "conflicts with all notions of sound judicial policy."
Sedrick "Ricky" Cobb, convicted of raping and murdering a woman whom he kidnapped from a Waterbury department store parking lot in 1989, has had an appeal pending before the state Supreme Court since 2004.
Four death-row appeals are on hold because of the lawsuit alleging racial and geographic disparities, which is set to go to trial next June. The case, which will impact all death-row appeals, has been delayed for years by changes in judges, two different studies commissioned by the inmates' lawyers and a response from prosecutors that included several revisions.
Michael Courtney, head of the public defender office's Capital Defense Unit, said there could be more delays as his office moves have the date updated to include those sentenced to death after 2006.
He said subsequent federal appeals could also be lengthy, as defense lawyers get their first chance to argue that Connecticut's death penalty violates the U.S. Constitution by pre-screening what issues a jury can consider as mitigating factors in a capital case.
"Until the U.S. Supreme Court ultimately decides we're going to look at this or we're not going to look at it, or decides one way or another whether Connecticut is operating properly under the federal Constitution, there is not going to be another execution in Connecticut, barring another volunteer" Courtney said.
In 2005, serial killer Michael Ross was given a lethal injection after he pushed for his death sentence to be carried out, becoming the first person executed in New England since 1960.
The lack of executions can be attributed at least in part to a unique set of laws that allows for virtually unlimited numbers and types of appeals, prosecutors said.
The direct appeal of a death sentence takes at least four years to litigate, they said.
Defendants also can file what are known as habeas corpus appeals in state court alleging a variety of problems, such as the ineffective assistance of counsel, or improper testimony. If they lose their first habeas corpus appeal, they can file another, claiming problems in their first habeas corpus case, and so on.
Kane said 30 states have time limits on habeas appeals. He has supported legislation that would limit the appeals in Connecticut to three years after the imposition of sentence.
But Courtney said only one inmate in Connecticut has gotten to the point of filing a second habeas claim. He and others expressed concern that if appeals are limited and the process sped up, the state could end up executing innocent people.
Two top state court officials, Chief Justice Chase Rogers and Chief Court Administrator Barbara Quinn, declined to comment on the issue.
Stephen Bright, a lecturer at Yale University's law school and president and senior counsel at the Southern Center for Human Rights, said there is little reason to speed up the process until it becomes clear whether the state legislature will repeal the death penalty.
"The courts have taken these cases, as they should, very seriously," he said. "A lot of times just the complexity of the cases adds to the amount of time. But when a death penalty is used as seldom as this one, the question becomes, what is the point?"
Lawmakers, he said, are likely to repeal the death penalty for future crimes, but only after a jury decides whether Komisarjevsky should be convicted and sentenced to death for the 2007 murders of Jennifer Hawke-Petit of Cheshire and her daughters, 11-year-old Michaela and 17-year-old Hayley. His co-defendant, Steven Hayes, is already on death row.
"We seem to have the will in the legislature and we have a governor who will sign a repeal if we can get a bill to his desk," said Ben Jones, the executive director of the Connecticut Network to Abolish the Death Penalty. "I think you can certainly say the death penalty would have already been gone in Connecticut if not for the Petit case."
State Rep. Gary Holder-Winfield, D-New Haven, a leader in efforts to get the death penalty off the books, said he expects another repeal bill to be introduced in 2012.
"I think we need to move past the sensationalism of the case," he said. "It's hard to look at facts objectively when you have that case as a backdrop."
But Cindy Siclari of Monroe, whose sister-in-law was raped and killed in North Carolina in 1993, testified during this year's repeal debate that the current law is not working for victim's families.
"The death penalty in Connecticut offers a false promise to victims' family members and delivers decades of additional pain," she said. "While no death sentences are actually carried out, families suffer through years of appeals where the details of the crime are replayed in the press over and over again."
A Quinnipiac University poll last March found that in the wake of the Cheshire case, 67 percent of Connecticut's registered voters favored the death penalty _ a new high. But the same poll also showed that 43 percent supported life in prison as a better option.
Chief Public Defender Susan Storey told state lawmakers that without a death penalty, there would at least be some finality to the process, something that doesn't exist now.
"I can't assure you that if we had triple our staff that it would make any difference in the (current) process," she testified in March. "I think that the way our court system is structured and our Constitutional protections, there's only _ it can only be shortened so much. And I think that we've seen that in the past years that certain families have not seen finality."
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