Hannity's “shocking” investigation: Obama nominee “displays empathy for a convicted serial killer”

From the June 22 edition of Fox News' Hannity:

HANNITY: An Obama judicial appointee displays empathy for a convicted serial killer. A shocking Hannity investigation into that background is coming up next -- straight ahead.

[...]

HANNITY: All right. The president has indicated that he wants his judicial appointees to display empathy for those that come before him. A Hannity special investigation reveals that one of his latest nominees to the federal bench did just that for a notorious serial killer.

Appeals court panel found Chatigny's actions “reasonable” and “not motivated by any bias” in serial killer case

In a 2005 conference call, Chatigny expressed concern that Ross' lawyer was not sufficiently investigating his client's mental competency. Regarding the serial killer case cited by Hannity, in 1987 Ross was found guilty of the murder of four of the eight women he confessed to killing. The New York Times reported that Ross “did not fight the state's execution plans. He has said repeatedly that he is prepared to die -- that he hoped his death would ease the pain of his victims' relatives -- and he repeatedly waived his rights to appeal.” The Times reported that others had argued that “Mr. Ross is simply masking a desire to commit suicide.” On January 29, 2005, the Hartford Courant reported that during a conference call hours before Ross' scheduled execution, Chatigny “in often brutally frank language, made it clear he thought [T.R.] Paulding [Ross' lawyer] should be doing more” to address concerns about Ross's competency.

Appeals court panel, which included Mukasey, found Chatigny's concern “reasonable” and “not motivated by any bias.” As the Hartford Courant reported on January 28, 2006, Chatigny was “cleared of misconduct by a review panel of the 2nd Circuit Court of Appeals.” The panel consisted of three judges, including Michael Mukasey, who went on to become President Bush's attorney general. The Courant stated of the panel's findings (from Nexis):

“Without doubt, Judge Chatigny's actions were unusual,'' a special committee consisting of three judges concluded.” But in the judge's reasonable view, the circumstances thrust on him called for unusual action. ... ''

Those circumstances included challenges by family members and lawyers that serial killer Michael Ross was not mentally competent to waive further appeals and “volunteer'' for execution, and the staunch defense of Ross' competence and right to choose his fate by attorney T.R. Paulding.

[...]

The special committee -- composed of 2nd Circuit Chief Judge John W. Walker Jr., circuit Judge Pierre Leval and Chief Judge Michael Mukasey of the Southern District of New York -- said in its 45-page report, ”It is fairly arguable ... that some of what [Chatigny] said was susceptible to misunderstanding and might better have been left unsaid.

“We are persuaded, however, that the judge's actions were not motivated by any bias in favor of Ross or against the death penalty but only by the judge's reasonable perception that the discharge of his own judicial duty ... required that he take forceful steps on Ross' behalf.''

[...]

Chatigny, in correspondence with the special committee to answer the judges' inquiries, stated that some of his remarks to Paulding were ”too vehement,'' and also said that he apologized to Paulding the next day.

“He added that he regretted both his choice of words and any embarrassment he may have caused to the court system,'' the report states of Chatigny.

Mukasey reportedly supports Chatigny's nomination to be a 2nd Circuit judge. According to the Hartford Courant, “Michael B. Mukasey, a former U.S. attorney general in the George W. Bush administration and a former 2nd Circuit judge, called senior committee Republicans to offer his support of Chatigny, people familiar with the process said.” The Daily Caller similarly reported that Mukasey “was making phone calls to Senate Republicans on Chatigny's behalf.” The Daily Caller added:

[E]ven one of the more conservative Republicans on the Senate Judiciary Committee said his views are having an effect.

“There was an ethics issue that he wanted to share his views with me on, which I appreciate very much,” Sen. John Cornyn (R-TX), said, “I have a lot of respect for the Attorney General . . . I would say it'd make me more inclined to be supportive, but I haven't made a final decision yet.”

Legal expert defended Chatigny's actions at the time. According to a February 2, 2005, New York Times article, University of Pennsylvania Law School professor Geoffrey C. Hazard Jr. defended Chatigny's actions at the time, stating: ''These are extraordinary acts by the judge but the situation is extraordinary."

Hannity suggests Chatigny acted improperly and had “ax to grind” because “he was involved in the Ross case years before he presided over it as a judge”

Hannity: Chatigny was “involved” in case before presiding over it as a judge; suggests Chatigny had “ax to grind.” On his June 22 show, Hannity stated that "[t]he judicial oath calls on judges to administer justice faithfully and impartially. But didChatigny have an ax to grind?" He continued: “Well, documents revealed in hearings before the Senate Judiciary Committee revealed that he was involved in the Ross case years before he presided over it as a judge.” Hannity then aired an exchange between Sen. Tom Coburn (R-OK) and Chatigny during Chatigny's April 28 Senate hearing in which Coburn asked, “You were actually involved in this case prior to it coming to you? ... Was that made evident to the people who were on both sides?” and Chatigny's response that “it wasn't for the simple reason that I had forgotten my prior involvement.” From the June 22 Hannity:

HANNITY: The judicial oath calls on judges to administer justice faithfully and impartially. But did Chatigny have an ax to grind? Well, documents uncovered in hearings before the Senate Judiciary Committee revealed that he was involved in the Ross case years before he presided over it as a judge. Chatigny and Ross had even exchanged letters.

COBURN: You were actually involved in this case prior to it coming to you?

CHATIGNY: Technically, perhaps. But --

COBURN: Was that made evident to the people who were on both sides?

CHATIGNY: It wasn't for the simple reason that I had forgotten my prior involvement.

COBURN: In a serial murder case with eight people?

CHATIGNY: Had I remembered, I would have recused myself.

HANNITY: Chatigny was so bent on preventing Ross' execution that he took matters into his own hands. He picked up the phone and he called Ross' attorney, T.R. Paulding.

In fact, Chatigny's past personal involvement -- which consisted of filling an application for a brief that itself was never filed -- was found to be“fleeting” and “inconsequential”

Chatigny filed application for an amicus brief in the Ross case, but amicus brief reportedly was never filed. On May 26, 2005, the Hartford Courant reported (accessed via Nexis) that "[i]n 1992, Chatigny ... filed a three-page application with the state Supreme Court on behalf of the Connecticut Criminal Defense Lawyers Association. The association sought permission to file a friend of the court brief in the Ross appeal." The Courant further reported that "[t]he application to file a brief was granted, but there is no record of such a brief ever having been filed."

Appeals court panel: “Chatigny's personal involvement was fleeting, tangential, and inconsequential.” In its decision, the appeals court panel stated that “Chatigny's sworn statement that he had no recollection of his prior involvement is supported by all of the evidence” and that “his failure of recollection is altogether reasonable.” It further stated that Chatigny's “personal involvement was fleeting, tangential, and inconsequential, in addition to being long past.”

Hannity edited video of Chatigny's confirmation hearing to omit Chatigny's explanation of his prior involvement in case. During the segment, Hannity aired Coburn asking Chatigny during the April 28 hearing, “You were actually involved in this case prior to it coming to you?” Hannity did not air or otherwise note Chatigny's response, in which he stated:

CHATIGNY: I was not involved in the case. Thirteen years before the matter came to me, I was contacted by a friend who asked me if I would file on behalf of the Connecticut Criminal Defense Lawyers Association a motion in the state Supreme Court for leave to file an amicus brief on an evidentiary issue. I agreed to do so. I reviewed the motion that he prepared, and I saw to it that it was filed, and that was the end of my involvement in the matter.

Hannity ignored that the Committee found “no misconduct in Chatigny's failure to disqualify himself from the Ross case.” During the segment, Hannity did not note that Chatigny was cleared of any misconduct related to his prior involvement before presiding over the Ross case as a judge. The Hartford Courant reported on July 28, 2006, (accessed via Nexis) that the appeals court panel “also found no misconduct in Chatigny's failure to disqualify himself from the Ross case because he had filed a court document in one of Ross' earlier appeals in 1992 at the request of another lawyer working under deadline pressure.” From the Courant:

The committee also found no misconduct in Chatigny's failure to disqualify himself from the Ross case because he had filed a court document in one of Ross' earlier appeals in 1992 at the request of another lawyer working under deadline pressure.

“Judge Chatigny stated that he had forgotten his brief, inconsequential involvement with Ross' direct appeal and would have recused himself had he remembered it,'' the report says. ”A failure to recuse resulting from an innocent and reasonable memory lapse is not misconduct."

Fox News itself has reported that Chatigny was cleared of misconduct regarding his prior involvement in the case. In a March 10 article, FoxNews.com reported that Chatigny “filed an application to file a legal brief in support of Ross' appeal -- though the judge never ended up filing that brief. He was later cleared of misconduct.”