He sat across the courtroom from me, next to a phalanx of new lawyers. I was on the witness stand, answering questions about a case I had handled almost ten years ago. When the proceedings began, I did not notice him. But our eyes met. I nodded ever so slightly. He nodded back. I still find it incomprehensible that the state intends to kill this man.
I was called as a witness in a habeas corpus proceeding in a case involving Robert Breton. He was convicted and sentenced to death for the murder of his ex-wife and son in 1987. Years before, he had also killed his father. The state was relentless in pursuing the death penalty. When the penalty phase of his first trial was reversed, the state tried him again. When the second penalty phase trial was again reversed, the state tried him a third time. The third time was a fatal charm: A three-judge panel sentenced him to death. I was involved in Mr. Breton’s case after the third trial.
The Public Defender’s Office asked me to perfect a new trial petition it had filed for him. The claim was that ancient records about a dissociative disorder had been discovered, perhaps withheld from the defense by the state. Had the records surfaced at any of Mr. Breton’s trials, a psychiatrist would either have reported that Mr. Breton was legally insane when he killed his wife and son, or that he was so disturbed at the time of the killings that life-saving mitigation would have been found. I took the case, but withdrew the petition when it became clear we did not have the psychiatric testimony necessary to perfect the claim.
Yesterday, new counsel for Mr. Breton questioned whether I had done enough to protect Mr. Breton’s claim for a new trial. I had crossed the line from advocate to target, the fate of every lawyer who participates in a capital defense resulting in a sentence of death. It is an excruciating place to be: loyalty to a former client fighting for his life, the obligation to tell the truth, and abhorrence over the death penalty yield powerful emotions.
I was not happy to be on the witness stand yesterday. The state should not have the right to take what it lacks the power to give. Killing in the name of justice is simply wrong. And in the Breton case, I believe I did not err in the call I made on behalf of the client. Had a failed new trial petition gone forward, the state would have been able to call all of his prior defense lawyers to the stand and to cross-examine them about defense strategies and themes at a time in which Mr. Breton’s direct appeal to the Connecticut Supreme Court was still pending, thus giving them insight in any retrial of the penalty phase. I had appealed to the United States Supreme Court to compel the state’s high court to act on the appeal before the new trial petition was held. The Supreme Court ignored me.
So I answered questions yesterday. And I looked at Robert Breton. And my heart broke. Whatever the man may have done, there is a spark of the same life I cherish alive within him.
When I was released from the stand, I walked across the well of the court. But rather that head to the courtroom exit, I went straight to Mr. Breton. Mr. Breton looked surprised, but not nearly as surprised as the guards seated around the room -- they sprang up and began to walk toward Mr. Breton and me. Before anyone could arrive and separate us, I grabbed his hand. I kissed his balding head and wished him good luck. I had wanted to find his lips, but there was no time. The state was closing in, and seeking to deprive this man of any human contact. I left the room without a backward glance.
I am glad I kissed this killer, and I hope that he felt, if only for a moment, that strangers still care what becomes of him. I still stand by the decisions I made in my brief representation of him, but I hope the habeas corpus judge finds some hook on which to base a decision that he should have a new trial. What I saw in the man’s eye from the stand, and as I bent to kiss him, was a vast desert, a wilderness of solitary pain. I remain drawn to him. He is the least among us and is entitled to so much more than death. What I saw in Mr. Breton’s eyes is why I became a lawyer.
I kissed a killer yesterday, and I am proud of that act. I hope it helped to give Mr. Breton hope, and that it reminded the trial judge that the life in question is real, not just some abstraction to be balanced and weighed like so much chattel.