Opinion
No. CR84-20300
April 22, 2005
MEMORANDUM OF DECISION RE COMPETENCY AND VOLUNTARINESS
Procedural History
The defendant, Michael Ross, "was charged in three cases with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of § 53a-54b(5) and two counts of capital felony in violation of § 53a-54b(6) . . . After a separate penalty phase hearing pursuant to General Statutes (Rev. to 1987) § 53a-46a, he was sentenced to death. The defendant appealed from the judgments to [the Connecticut Supreme Court, which] affirmed the defendant's convictions, but determined that certain evidentiary rulings by the trial court in the penalty phase had impaired the defendant's ability to establish a mitigating factor and, accordingly [the Supreme Court] reversed the judgments imposing the death penalty. [ State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995).]" (Citation omitted; internal quotation marks omitted.) State v. Ross, 272 Conn. 577, 579-80, 863 A.2d 654 (2005).
From approximately 1995 to 1998, Ross attempted, pro se, to stipulate to the death penalty by agreeing to the existence of aggravating factors and the absence of mitigating factors. In July 1998, the court, Miano, J., rejected the stipulation agreed upon by Ross and the state. "[A] second penalty phase hearing was held before a jury, which found an aggravating factor for each capital felony conviction and no mitigating factor. In accordance with the jury's findings, the court, Miano, J., imposed a death sentence on each count . . . The defendant again appealed from the judgments to [the Connecticut Supreme Court, which] affirmed the sentences of death. [ State v. Ross, 269 Conn. 213, 392, 849 A.2d 648 (2004).]" (Citations omitted.) State v. Ross, supra, CT Page 7219 272 Conn. 580. After a motion for reconsideration was denied by the Supreme Court in September 2004, Ross notified this court that he was not pursuing any further appeals and asked that an execution date be set.
This court held a hearing on October 6, 2004, at which time the court canvassed Ross regarding his decision to waive further challenges to the death sentences and set January 26, 2005, as the execution date. On December 1, 2004, the office of the chief public defender of the state of Connecticut (public defender) filed in this court a "motion for permission to appear as (1) `next friend' of (the defendant); and (2) as a party in interest or as an intervener or as amicus curiae." At a subsequent hearing on December 28, 2004, the court made extensive findings concerning Ross' competency to waive any appeals based on the information supplied by Ross' attorney, T.R. Paulding, Ross' own testimony, exhibits introduced into evidence and the testimony and report of Michael Norko, a psychiatrist who examined Ross. The court found the defendant competent pursuant to the standard of Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), and utilizing the three-part inquiry set forth in Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir. 1985), cert. denied sub nom. Rumbaugh v. McCotter, 473 U.S. 919, 105 S.Ct. 3544, 87 L.Ed.2d 668 (1985). At that time, this court found that Ross was lucid, educated, knowledgeable, articulate and insightful and that his decision was not the result of threats, force, promises, coercion or the effect of any medication he was taking. This court found that Ross had sufficient present ability to consult with his attorney with a high degree of rational understanding and also possessed a rational, as well as factual, understanding of the proceedings against him. He had the capacity to appreciate his position and to make a rational choice with respect to continuing further litigation. This court found at that time that Ross had the capacity to understand his choices, that his decision to waive further appeals was made knowingly, voluntarily and intelligently, and that he did not suffer from any mental disease, disorder or defect that affected his capacity to make an intelligent decision and a rational choice. As a result of the findings of December 9 and 28, 2004, this court denied the public defender's motion to intervene as "next friend" and affirmed the previously set execution date of January 26, 2005. Appeals of that decision and collateral litigation were eventually exhausted, but resulted in the execution date being postponed to January 29, 2005.
Shortly before the execution was scheduled to be carried out, it was postponed at Paulding's request and with the agreement of both Ross and the state's attorney's office. The execution was postponed at that time to January 31, 2005. On that date, Ross filed a motion seeking a further stay of execution and requesting that the court reopen its competency hearing to address issues that had arisen concerning Ross' competency. This court granted the requested stay. On February 3, 2005, another issue arose concerning a potential conflict of interest that Paulding faced in continuing to represent Ross. On February 10, 2005, with the agreement of Paulding and the state, this court appointed Thomas Groark as special counsel to investigate and present evidence that Ross is not competent.
The "reopening" of the competency hearing took place on April 7, 8, 11, 12, 13 and 14, 2005. All three parties participated actively in this adversarial evidentiary hearing. Paulding represented the defendant, Michael Ross; Kevin Kane and Peter McShane represented the state; and Thomas Groark, with Michael Shea and James Mahanna, all of the law firm of Day, Berry and Howard, advocated Ross' incompetency. All parties agreed that the court could consider all evidence presented at the previous competency hearing on December 9 and 28, 2004.
Burden of Proof
The majority of the cases on the issue of the competency of a defendant to waive further appeals in a capital case seem to apply a presumption of competency by holding that a putative "next friend" has the burden of proving incompetency. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Furthermore, a presumption of competency is recognized in the context of competency to stand trial. See, e.g., State v. Ouellette, 271 Conn. 740, 744 n. 7, 859 A.2d 907 (2004); State v. Wolff, 237 Conn. 633, 661, 678 A.2d 1369 (1996). Nevertheless, the present "airing" of the competency issue was initiated not by a putative "next friend," but by Ross himself through counsel. Accordingly, as the court indicated at the commencement of this hearing on April 7, 2005, no presumption of competency will apply in this matter. The present case does not present the threshold issue, present in many of the other cases, of whether there is any "meaningful evidence" of incompetency; the sole issue is whether Ross is in fact competent to make the decision to forgo further appeals. Moreover, the attorneys in the present matter agreed to the order of presentation of the evidence. This court reiterates its ruling of April 7, 2005, that no party bears the burden of proof. See Comer v. Stewart, 230 F.Sup.2d 1016, 1038 (D.Ariz. 2002); see also Mason v. Vasquez, 5 F.3d 1220, 1225 (9th Cir. 1993). The question is whether, giving full and fair consideration to all of the evidence, from whatever source, the evidence establishes by a fair preponderance that Ross is competent to waive further appeals and whether his waiver is knowing, intelligent and voluntary. See Comer v. Stewart, supra, 1038.
Legal Standard
The competency standard pursuant to Rees v. Peyton, supra, 384 U.S. 312, is whether the prisoner has the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder or defect which may substantially affect his capacity in the premises." Id., 314. A "rational choice" may mean the same as a "rational understanding." Godinez v. Moran, 509 U.S. 389, 398 n. 9, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).
In Rumbaugh v. Procunier, supra, 753 F.2d 398-99, the court utilized a three-part inquiry that has been followed and recommended by a number of courts that have interpreted the Rees standard. As this court indicated to the parties on April 7, 2005, the court will apply the Rumbaugh test, modified for consistency with Rees (e.g., substituting "substantially affect" for "prevent") as follows:
1) Is Michael Ross suffering from a mental disease, defect or disorder?
2) If Michael Ross is suffering from a mental disease, defect or disorder, does that disease, defect or disorder substantially affect his understanding of his legal position and the options available to him?
3) If Michael Ross is suffering from a mental disease, defect or disorder which does not substantially affect his understanding of his legal position and the options available to him, does that disease, defect or disorder, nevertheless, substantially affect Michael Ross' ability to make a rational choice among his options?
See Rees v. Peyton, supra, 384 U.S. 314; Rumbaugh v. Procunier, supra, 753 F.2d 398-99.
The standard requires more than merely a possibility that a decision is the product of a mental disorder. Smith v. Armontrout, 812 F.2d 1050, 1057 (8th Cir.), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). Some courts have interpreted the Rees standard as utilized in Rumbaugh to require a finding that a defendant is both competent and that the decision is entered knowingly, intelligently and voluntarily (the third prong of Rumbaugh). See Comer v. Stewart, 215 F.3d 910, 917 (9th Cir. 2000). Competency and voluntariness are distinct, yet the distinction is not always clear in the case law. In O'Rourke v. Endell, 153 F.3d 560, 567 (8th Cir. 1998), the court observed: "The focus of a competency inquiry is the defendant's mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the `knowing and voluntary' inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced." In special counsel's pre-hearing memorandum of law, dated April 1, 2005, he conceded that there is no significant dispute about the first and second prongs of the Rumbaugh test because all of the experts agree that Ross is suffering from a mental disorder and that his cognitive abilities and knowledge of the law make it clear that he understands his legal options. The person's decision must be the product of a rational intellect and an unconstrained will. The decision must not be controlled or coerced by a mental illness, but must be the product of one's free will. The question is not whether a mental illness substantially affects a decision, but whether it substantially affects the prisoner's capacity to appreciate his options and make a rational choice among them. See Dennis v. Budge, 378 F.3d 880, 890 (9th Cir.), cert. denied, U.S. 125 S.Ct. 16, 159 L.Ed.2d 847 (2004). For any decision to be voluntary it must be freely and rationally made under the totality of the circumstances. It depends on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the defendant. A waiver to forgo further appeals is voluntary if it is the product of a free and deliberate choice, rather than coercion or improper inducement. The decision cannot stem from mental or physical coercion or duress. See Comer v. Stewart, supra, 215 F.3d 917; United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998).
Discussion and Findings
Over the six-day hearing, the court heard from seven witnesses. Four psychiatrists testified: Michael Norko, Stuart Grassian, Suzanne Gentile, and Eric Goldsmith. The defendant, Michael Ross, testified as did his father Dan Ross and John Holdridge, an attorney from the public defender's office. Depositions of Ross' friend Martha Elliot, and his girlfriend Susan P., were introduced as evidence. Fifty-six exhibits were introduced for the court's consideration.
This court will not attempt to summarize the testimony of each individual witness or each exhibit introduced as evidence. The exhibits included extensive writings, journals, and letters of the defendant commencing in 1987 and comprehensive evaluations by the expert witnesses, including the videotaped interview of Ross by Grassian. This hearing has required this court to immerse itself into the details of Ross' life through the various exhibits and testimony. This court recognizes the solemnity of the decision before it and has considered all testimony and exhibits in reaching its factual findings.
Psychiatric Testimony
Norko and Gentile, after evaluating Ross, interviewing witnesses and reviewing extensive documentation, found that Ross' decision to forgo further appeals was both competent and voluntary. Grassian and Goldsmith, after evaluating Ross, interviewing witnesses and reviewing basically the same material, concluded that Ross' decision was not competent or voluntary.
Obviously, psychiatry is an inexact science. It is the court's duty to weigh the evidence and determine credibility. When faced with different expert opinions, this court must consider them in light of the surrounding facts and circumstances. State v. Griffin, 78 Conn.App. 646, 656-57, 828 A.2d 651 (2003). This court must determine which opinion is more realistic and credible given the evidence presented. Id. The court must independently decide the issues at hand because it is a legal, not a medical determination.
All four psychiatrists basically agree on the mental disorders that Ross is suffering from, but they divide into two camps in appraising the relationship of the disorders to Ross' decision to forgo any appeals. The disorders are:
1) Sexual sadism: This is an Axis I disorder according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which is a consensus guide of mental disorders for psychiatrists nationwide. The defendant has been treated with Depo Lupron for this condition, and all the doctors appear to agree that it is presently in remission and is not in and of itself affecting his competency or the voluntariness of his decision.
2) Depression or mood disorder, not otherwise specified (NOS): This is also an Axis I disorder according to the DSM-IV. All the doctors seem to agree that this is in full or partial remission due to the defendant's medication regimen.
3) Personality disorder, NOS, with narcissistic, borderline and antisocial traits or a full blown narcissistic personality disorder with borderline and antisocial traits: This is an Axis II disorder according to the DSM-IV. According to the experts' testimony, opinions can differ as to whether one has enough of the traits listed in a disorder in the DSM-IV to qualify as an actual disorder. For example, Norko opined that Ross only had some narcissistic traits as part of a general personality disorder, while Gentile concluded that Ross had enough of those traits to qualify for a full blown narcissistic personality disorder diagnosis. There is no substantial difference.
4) Anxiety Disorder, NOS: Norko in his December 2004 evaluation suggested that Ross may have been suffering from an anxiety disorder because it was the subject of clinical intervention when he was transferred to Osborn Correctional Institution in October 2004. However, he also concluded that the anxiety symptoms had largely resolved and were in control with therapy and anti-anxiety medication. In February and March of 2005, Ross has been in sufficiently good spirits that his antianxiety medication was discontinued.
One crucial difference between the experts' two opposite conclusions concerning competency and voluntariness is the effect that Ross' admitted narcissistic personality traits have on his decision. Some examples of narcissistic traits are grandiosity, inability to empathize, and self-centered and arrogant behavior. Norko concluded that in general none of Ross' disorders, including his personality disorder, had any substantial effect on his competency or on his ability to make rational choices or to choose among his options. Grassian by contrast concluded that Ross is not competent and his decision is not voluntary based on a combination of the disorders that Ross suffers from, including a mood disorder, depression and his personality disorder with strong narcissistic traits. Grassian testified that when Ross' narcissistic needs are thwarted, he becomes profoundly depressed. He concludes that Ross' narcissism will not allow him to change his mind at this point — that he must look good and do the noble thing and die a martyr. Grassian reasons that because of his narcissism Ross cannot bear the humiliation of backing down on his decision. He testified that Ross' decision is a desperate act by a desperate man who wants to go out in a "blaze of glory." Goldsmith agrees with Grassian and opines as follows. In 2003, as a result of a number of narcissistic insults and a state of depression, Ross decided to waive his appeals. The narcissistic insults included that Ross felt he was not being perceived as moral and noble, that the justice system did not recognize his mental illness, that he was confined on death row, and that his girlfriend had abandoned him which had caused him to lose not only his fiancee but access to his supporters over the internet. This led to an attempted suicide in March 2003. In his state of despair and hopelessness, he gave up his appeals. Although in 2004 and 2005, he has been in a better state of mind because of where he is being housed and the return of certain people into his life, his exacerbated narcissistic personality will not allow him to change his mind. Some of the external stressors are gone, but his depression in 2003 has now led to his grandiose decision to do the noble thing and he cannot back down from it. Goldsmith's eventual conclusion is that Ross' current mental disorders substantially affect his competency and his ability to make a voluntary decision.
Gentile, who is the principal psychiatrist and heads the competency restoration unit at the Whiting Forensic Institute at Connecticut Valley Hospital, agreed with Norko that none of Ross' mental disorders substantially affect his competency or the voluntariness of his decision to forgo appeals. Gentile disagreed that Ross' narcissism had any substantial effect on his decision-making capacity. She testified that his decision is based on rational factors combined with a narcissistic desire to look good. This court finds the opinions and conclusions of Norko and Gentile more persuasive.
Ross has attempted to commit suicide on at least two occasions. One attempt was in November 1998 when he was in a state of depression because of the court's denial of his stipulation to the death penalty and the reality that the second penalty phase was about to commence. The other was in March 2003 during a state of depression caused mainly by the breakup with his girlfriend months earlier. Norko indicated that Ross is not presently suicidal and his previous suicide attempts and depression are not a causal factor in his decision.
Ross' Writings
All of the experts dissected the exhaustive compilation of statements that Ross had made over the years to his friends, the media, and the court as well as in private journals. A great source of information was supplied by Ross in his monthly writings entitled "Walking With Michael . . ." Ross would author one general letter to his friends and supporters and have it copied for distribution to them. One of the recipients of the mailings apparently named them "Walking With Michael." These commenced in approximately 1999 and continued into 2004. Before 1999, Ross wrote lengthy journal entries concerning his thoughts and feelings at the request of a religious advisor. Over the years, Ross' spirituality has become very important to him and many of his journal entries and "Walking With Michael" letters have numerous religious quotes and references. When Ross began a relationship with Susan P. in 2000, she would send out his monthly writings via the internet utilizing email to all of his supporters. At the height of these mailings, the number of recipients was as high as 150 people. In these personal writings, Ross would keep his recipients up to date on his case and what was occurring in his life. He was a prolific writer who expressed his unhappiness, despair and hopelessness at certain times, and on other occasions would display his wit, intelligence, sense of humor, spirituality and sense of morality. He utilized his writings as a method to cope with his feelings and also to get attention. Some of the witnesses cited portions of his exhaustive writings as examples of narcissism and depression. Others have used excerpts to demonstrate his consistency in desiring to save the victims' families the pain of another penalty hearing. The experts at times have taken the same selections and claimed they stand for their respective opposite positions.
Ross' Motivations
It is clear from Ross' many writings that are in evidence that he has articulated since as early as 1987 his concern for the families of his many victims. He has always spoken and written about the horror for the victims' families if they were to hear the evidence of his crimes again at another penalty hearing. Sometimes he has articulated this in the more public "Walking With Michael" letters and other times it has been noted in more private mailings to friends and counselors. Dan Ross, Martha Elliot and Susan P. all disagree with Ross' stated motivations. Of course, all of these lay witnesses are opposed to the death penalty in general, are close friends or family of Ross, and do not personally support his decision to die. They do not present as unbiased witnesses to this court.
In examining the timing of Ross' request to forgo his appeals, it should be noted that after the Connecticut Supreme Court ordered a new penalty phase hearing in 1994, Ross wrote a letter to then state's attorney Robert Satti requesting to stipulate to the existence of an aggravating factor at the next penalty hearing. Ross maintained his efforts to stipulate to the death penalty from approximately 1994 to 1998. That was when Norko in 1995 conducted his first of three evaluations of Ross to determine whether he could represent himself in his attempt to stipulate. At that time, Ross indicated that he wanted to spare the victims' families the pain of another hearing. Even though Ross felt his sexual sadism should have prevented his conviction in the guilt phase of his trial or at the very least should have been found by the jury to be a mitigating factor in the penalty phase, he sought to stipulate to the existence of no mitigation so he could avoid another penalty hearing to spare the families of the victims further pain and emotional suffering. He urged the court to accept the stipulation, but the court rejected it in 1998. Ross had previously indicated that if the court rejected the stipulation and went forward with a new penalty hearing, he would aggressively participate in the proceedings in an attempt to prove mitigation. As Ross wrote back then and says now, he does not desire to die and would gladly accept a life sentence if it could be obtained without causing further pain to the families. Ross' motivations were the same when Norko examined him in 1995 and ten years later in 2005. Ross believed then, and believes now, that the morally right thing to do is to accept the punishment imposed by two juries. Although he says that he has no choice, he means that it is his moral obligation to do the right thing.
Norko articulated that Ross has two sets of motivations. The primary motivations for forgoing any appeals and accepting the death penalty are 1) that it is morally the right thing to do, and 2) a desire to save the families of the victims the pain of going through another penalty hearing. The secondary reasons, which Ross calls the "fringe benefits" of his decision, are 1) that he would avoid his own pain from hearing the evidence at another penalty hearing, 2) that he would end his confinement and not grow old in prison, and 3) accepting the inevitability of receiving the death penalty. All of these factors come together in his decision and this multifaceted aspect of his decision demonstrates his ability to think rationally. He has weighed the pros and cons for years. He has questioned his decision, but has found no reasons to reverse it. As Gentile noted, his multiple reasons show the amount of thought he has put into a very difficult decision. His multifactorial reasoning supports his competence. It suggests a logical, rational way of making a decision. At certain periods of time, the order of importance to his motivations may change depending on what is going on in his life. Ross experiences conflict in times of stress. As court hearings approach, he appears to be more concerned with his own pain than with the families. At other times he is depressed over his confinement on death row. However, such internal strife and feelings are part of any tough decision. Ambivalence and doubt over his decision is a sign that he is a rational person. Even with Susan back in his life as of 2005, Ross has indicated that he will not change his mind. He does not desire to cause more pain to the victims' families just so he can spend more time with her. This court finds the testimony of Norko and Gentile more persuasive concerning Ross' actual motivations for ending his appeals. Although part of his decision or motivation may be to satisfy his narcissistic personality traits, this court does not find that he has absolutely no empathy for others as suggested by Grassian and Goldsmith. There has been a constant theme in Ross' communications going back to 1987 of waiving appeals and sparing the families the pain of further litigation. Moreover, Ross has been actively trying to accept the verdict of death for over ten years.
Conditions of Confinement
The much anticipated "death row" syndrome or "segregated housing unit" syndrome never materialized in this case. Grassian is the first expert to have created or coined such a disorder based on a study of inmates at Walpole prison in Massachusetts in the late seventies. Although this syndrome is not listed as a mental disorder in the DSM-IV, it is present in some of the psychiatric literature. It is recognized by some that when prison conditions are stressful, especially in segregation, inmates may experience psychiatric disorders. There was never any type of credible claim that Ross suffered from a distinct mental disorder characterized as "death row" or "segregated housing unit" syndrome. Norko testified that the symptoms for "death row" syndrome as noted in Grassian's Walpole prison study were not evident in Ross. It was clear in the testimony that not all people react in the same way to segregation in prison. Ross has been in segregation since the original death sentences were imposed in 1987. However, as Gentile indicated, the inmates in segregation who cause concern are those who appear "dead" in their cells. Inmates of a higher intellectual ability and those who remain active in prison have fewer problems. Gentile found Northern Correctional Institution's segregated units clean, quiet, well organized, and more conducive to a better life than those in other prison systems she had seen. The evidence demonstrated that Ross at Northern Correctional Institution had access to television, radio, visitors, daily telephone privileges and even Nintendo's "Game Boy." He was allowed out of his cell more than many because he was the "tier man" on death row. Ross set up the recreational library for the inmates by contacting outside sources and obtaining funding and was actively involved in the organization and cataloging of the books. Ross had many interviews, visitors and supporters and he wrote and received many letters and publications. In short, Ross is not someone who has been "dead" in his cell. He has remained active wherever he has been housed. His writings disclose that when he was sent to Sullivan County, New York, to face a murder proceeding in 2001, he could not wait to return to the Connecticut penal system because of the more punitive conditions that existed in New York. Understandably there were times when his writings demonstrated depression and frustration with his imprisonment, but other times he commented that it was not so bad and that death row was the best thing that ever happened to him. Although Grassian described certain specific conditions at Northern Correctional Institution as rather bleak, there existed nothing unique or shocking at that institution. The conditions at Osborn Correctional Institution (where Ross is presently housed) are much better even according to Grassian, and yet, Ross' decision has not changed. Grassian's position appears to be that the conditions of confinement cause Ross to experience more depression and humiliation, which given his narcissistic condition, affect his ability to make decisions under the totality of the circumstances. Goldsmith's position was that the prison conditions contributed greatly to Ross' feeling of hopelessness around the time of his decision to forgo appeals. He described the prison conditions as another stressor or narcissistic insult to Ross.
This court finds that Ross does not suffer from any distinct syndrome or mental disorder as a result of his conditions of confinement. He has a realistic and mentally healthy attitude about his situation. If anyone suffers from such an illness, it is not someone with the coping skills of Ross, who has utilized the strengths of his intellect to keep active and in touch with the outside world. Ross may not want to grow old in prison, but that is because of his quality of life due to the fact of confinement, not based on the conditions of confinement. This court finds that the conditions of confinement have not coerced or constricted Ross' ability to think and make rational, logical, voluntary and volitional decisions. Ross has indicated that he would take a life sentence today if it were available and spend the rest of his life in prison, as long as no further penalty phase hearings would be required.
Psychiatrists' Conclusions
Grassian and Goldsmith conclude that Ross' decision to forgo his appeals is not competent and not voluntary. This is based on their opinion that Ross has made this decision for a number of reasons that all feed into his narcissistic personality. Their combined testimony paints the following picture. Ross has constant stressors in his life including the prison conditions, an unfair judicial system that does not recognize his mental illness, and the perception of the public, media and the victims' families that he is a monster. Things became worse for him when Susan left his life in the summer of 2002, resulting in his loss of contact with the outside world through her email. He was so depressed that he eventually attempted suicide in March 2003. In his despair, he gave up his right to appeal under a noble stated cause of sparing the families further pain. He actually is unable to have any empathy for anyone because of the pathology of his narcissism. He is attempting to be a martyr so as to appear noble. Although the stressors are not as bad presently, especially with Susan back in his life, Ross cannot suffer the humiliation of backing down. His decision is not voluntary because his will has been overcome by exacerbation of his narcissism. He would like to live and change his decision, but that choice would be too overwhelming emotionally because he would be seen as losing face. His narcissism requires this grandiosity. He has become so inflexible and his narcissism has become so strong, that he cannot retreat from his decision. In short, Grassian and Goldsmith's opinion is that within reasonable medical probability Ross' current mental condition substantially affects his ability to voluntarily make decisions.
This court finds the opinions and conclusions of Norko and Gentile more persuasive and finds that the credible and reliable facts are more consistent with their testimony. Norko, presently chief of forensic services of the Whiting Forensic Division of the Connecticut Valley Hospital, evaluated Ross for competency in 1995 when the defendant desired to represent himself and accept the death penalty. Norko found then that Ross understood his choices, effectively described his reasoning process, was coherent and logical, understood his legal situation and was clearly capable of representing himself. He found that Ross was capable of making choices and that it was Ross' moral decision to accept the death penalty to save the families of the victims the pain of further hearings. Norko, at this court's request, in December 2004 evaluated Ross again concerning his competency to waive any further appeals, and concluded that he was competent to make such a decision. Norko noted that Ross' reasoning was the same as in 1995, in that he was concerned for the families' pain of enduring another penalty hearing, and also recognized the small chance of success he would have at any penalty phase proceeding. Norko did note more anxiety in Ross in 2004 and also felt that Ross' decision was more sober at this time. Ross' decision was more intellectual in 1995, and in the 2004 evaluation, Norko noted that it was more spiritual and moral. In 1995 Ross indicated, as he does now, that it is morally right to save the victims' families from another penalty hearing. Ross recognizes that there would be minimal return by having another penalty phase hearing, since he is convinced that the result would be the same. Ross has not been unambivalent, but has weighed all of the factors in making this decision. If the court had accepted the stipulation that Ross pursued for three and one-half years commencing in 1994, he would not have had the second penalty phase hearing. Norko and Gentile agree that Ross is narcissistic and that his ability to empathize is impaired. He badly wants to be understood and is concerned with how he is perceived. Nevertheless, his spirituality has grown over the years on death row and he has sought out religious advice concerning his decision. According to Norko and Gentile, none of Ross' mental disorders have a substantial effect on his ability to make rational choices. His personality disorder does not affect his ability to choose among his options. Any coercion on Ross has been by his friends, attorneys and spiritual advisors urging him not to waive any of his appellate rights. His girlfriend, Susan, admitted that she recently threatened to commit suicide if Ross did not change his mind. There are clearly times when Ross is understandably depressed about his situation, but that may be true of anyone who must make a difficult choice. As Gentile analogized, many patients dying of terminal cancer are depressed about their situation. Their cognitive abilities are not necessarily impaired and they have a rational understanding of the situation. Those patients may choose not to be treated with painful chemotherapy or radiation over the remaining short period of their lives. Their depression may influence their decision, but they still have the capacity to make a rational choice. Norko opined based on his evaluations in 1995, 2004 and 2005 that Ross' decision has been voluntary. Gentile testified that Grassian overstated Ross' narcissism and she disagreed that there is evidence of rage in Ross, other than the crimes themselves that took place over twenty years ago. Both Norko and Gentile agree that within a reasonable degree of medical probability Ross has no mental disorder that substantially affects his competency or his ability to make a knowing, intelligent and voluntary decision. As Norko noted in his evaluation of 2005, "Mr. Ross does not want to die. He sees dying as the cost of doing the right thing." (State's exh. #6, p. 33.)
Court's Conclusion
As indicated earlier in this memorandum, it is the court's duty to weigh the evidence and determine credibility. When confronted with different expert opinions, the court must determine which is more realistic and persuasive given the evidence presented. This is a legal, not a medical determination.
This court finds the opinions and testimony of Michael Ross, Norko and Gentile more persuasive and credible concerning the issues at hand. Ross' decision is both competent and voluntary. This court finds by a fair preponderance of the evidence that Ross suffers from mental disorders, but those disorders taken individually or together do not substantially affect his understanding of his legal position and the options available to him. Ross' mental disorders do not substantially affect his ability to make a rational choice among his options. Michael Ross' decision to waive his right to further postconviction relief is knowing, intelligent and voluntary. His decision does not stem from coercion or duress; it is the product of a free autonomous choice. The conditions of confinement did not afflict Ross with any separate mental disorder or syndrome and they did not alone or in combination with any other factors make his decision involuntary. His decision is a product of his free will. A rational choice does not have to be a sensible decision, although Ross' choice flows logically from his expressed moral views. The issue is whether one has the volitional capacity to make a rational choice with respect to continuing or abandoning further litigation. In this court's opinion, this has been established by a fair preponderance of the evidence. Ross has the capacity to understand his choices and knowingly, intelligently and voluntarily to waive his right to further appeals. He appreciates the consequences of his decision and understands the potential grounds for appeal. His decision is the product of a rational intellect and an unconstrained will. Ross has indicated that he is only doing what he feels is right and his only other choice is to do the wrong thing. Ross' mental condition is not coloring his free will and dictating the outcome. Ross clearly passes the cognitive part of any competency requirement. He clearly has the knowledge and understanding to make a decision. Ross has demonstrated that he understands the legal issues in any of his potential appeals.
Ross vigorously participated and contested the evidence at the first trial. He did not want to be put to death. He believes to this day that because of his mental illness he should never have received the death penalty. Since his conviction in 1987, he has articulated a concern about the victims' families attending any further penalty hearings. Although narcissistic, he is not incapable of demonstrating any empathy for the victims' families. Any ambivalence in his decision demonstrates a person who has thought long and hard over an extended period of time.
Michael Ross desires the opportunity to choose and to make a free choice. Michael Ross, a competent individual, has the right to make this voluntary decision concerning whether to pursue any further appeals regardless of what others may feel about his decision.
Patrick J. Clifford, Judge