With Permission
Dr. Toor.
Before it comes before a jury, the Dr. Lishan Wang case is headed for a procedural detour before the state’s highest court.
The case’s judge and prosecutor are preparing to ask the Connecticut Supreme Court for advice as they try to move forward a confusing case involving an accused murderer who is representing himself — and running up a lot of bills.
The question before the justices: Is an indigent jailed defendant who rejects the state’s public defender as counsel entitled to funding for expert witnesses to testify at his trial? If so, who pays — the public defender or the judiciary?
If the high court decides that neither the public defender’s office as stand-by counsel nor the judiciary branch is required to pay for experts, then Dr. Wang may have to decide whether to continue to represent himself pro se without state-funded experts or change his position and return to public-defender representation on a full-time basis, the primary state document filed in the case says.
Dr. Wang, 47, is charged with the murder of Dr. Vanjinder Toor (pictured above), a former colleague at the Kingsbrook Jewish Medical Center in New York. At the time he was shot to death outside his Branford condo on April 26, 2010, he was 34, a father and a post-doctoral fellow at Yale. His then-pregnant wife witnessed the shooting. She was shot at too, but Dr. Wang missed. Dr. Wang has alleged Dr. Toor and other Kingsbrook doctors and officials caused his firing in 2008 and ended his medical career.
In an effort to move a murder trial paralyzed by various payment issues to trial, Superior Court Judge Patrick J. Clifford asked Eugene R. Calistro, Jr., senior assistant state’s attorney, to draw up a “reservation,” in effect a series of questions to provide guidance for the trial court. In short, they say, they are in need of advice. The court has been working on this aspect of the case for months.
Calistro finished the “reservation” and presented it to the judge Monday in his sixth-floor courtroom in Superior Court on Church Street in New Haven. He now hands this aspect of the case over to a state appellate attorney representing his office, he said.
By law an indigent defendant is entitled to defend himself if he is competent to do so. Dr. Wang was declared mentally competent to do so in 2011.
In addition, Judge Clifford on Monday also appointed outside private counsel to argue the questions posed by Calistro’s “reservation” before the state’s highest court. Dr. Wang has agreed to the outside counsel appointment; he would not have accepted an attorney from the public defender’s office, he has told the judge. The need here is to move the case to trial, a case more than three years old.
Wang Returns to MacDougall-Walker From Supermax Prison
As the judge and the prosecutor moved this part of the case to a higher court, Dr. Wang himself, the judge noted, had been moved back to Suffield’s MacDougall-Walker Correctional Institute in Somers. Without warning he had been transferred to Northern Correctional Institute in Somers, the state’s Supermax prison where the state’s male death-row inmates are kept, a few weeks ago.
In an effort to return Dr. Wang to MacDougall-Walker, the judge after learning on July 22 that Dr. Wang had been moved, decided to drop Dr. Wang’s bond from $2 million bond to $900,000 cash bail so that he might qualify to return to his former prison. Dr. Wang and other inmates transferred from the MacDougall facility all had bail higher than $2 million.
The judge’s action to reduce the bail, along with discussions undertaken by others with the wardens, apparently worked because in court on Monday, the judge noted that Dr. Wang had been returned to the MacDougall-Walker facility where Dr. Wang has a better shot at preparing for trial.
While Dr. Wang has a stand-by public defender, Jeff LaPierre, the office of the public defender has declined to fund his proposed experts because the office does not represent Dr. Wang full-time. He essentially fired his public defenders in May, 2011, about a year after he was accused of gunning down Dr. Toor. About six months later, the former judge in the case, Roland D. Fasano, granted Dr. Wang’s motion to represent himself.
On Monday, Judge Clifford appointed New Haven Attorney Max Simmons as assigned counsel or as a special public defender — he used both titles — over the objections of Deborah Del Prete Sullivan, legal counsel for the office of the chief public defender in Hartford. Simmons’s only role is to prepare briefs and present arguments on the “reservation” questions that the Supreme Court will be asked to hear. He will not represent Dr. Wang in any other matter, the judge said.
Susan O. Storey, the chief public defender in Hartford, accompanied Del Prete Sullivan to court Monday. After the session, she told the Eagle that Judge Clifford had ordered the public defender’s office to pay Simmons’s fees in the case. “We objected,” she said, to no avail.
In the past if a similar situation arose, one where an indigent defendant rejected the public defender’s assistance, the judicial branch would pick up the expenses for witnesses or other needs, Storey said. But tight budgets have changed that.
The public defender’s office also faces budget constraints, she said, adding that the public defender’s should not be required to pay for expert witnesses in cases over which it has no say or control and only limited involvement.
In her motion to intervene, a copy of which was obtained by the Eagle, Del Prete Sullivan said that for the fiscal year 2011-12, the public defender’s office caseloads increased to 100,945.
She also added that there is “no statutory authority in Connecticut for the court to appoint stand-by counsel in a criminal matter, but she also noted that the rules provide for the court to exercise its discretion and appoint one. Judge Fasano did and Judge Clifford followed. LaPierre is still the stand-by public defender. He no longer sits at the defendant’s table.
In court, Del Prete Sullivan urged Judge Clifford to give the public defender’s office intervenor status in the case, a position that would give the office stronger standing in the case. The judge said he would not. Nor would he agree to her filing an amicus, or friend-of- the court brief as she requested.
The judge pointed out that the public defender’s office opposed every aspect of this plan and therefore should not be granted intervenor status.
Judge Clifford observed that if the Supreme Court or an appellate court takes this case, “I would be surprised if it did not seek out your office. “ He said deciding who should pay might involve hearing from the judicial department and the public defender’s office, adding he would not be “filing a brief urging them to do one thing or other.”
Del Prete Sullivan reiterated that “we are not paying funds for pro se litigants who are not represented by our office.” She also asked that the Attorney General’s office become involved in the issue of payment of expenses. And she asked about the position of the judicial branch and if it should pay these fees.
Judge Denies Public Defender Motions
In the end Judge Clifford decided that the public defender’s office would be allowed to attach its intervenor motion and memorandum of law as part of the file that will be sent to the State Supreme Court. But formally it was denied any direct party filing in the case.
The judge repeated in open court that Dr. Wang was found indigent and has elected to represent himself. “There is a somewhat of a lack of confidence in the public defender’s office,” the judge went onto to say of Dr. Wang’s appraisal of the office, repeated often by him in court. “He has been steadfast in his claims. This is not an effective attorney-client relationship,” the judge observed.
Judge Clifford repeated that Attorney Simmons will in no way be involved in the murder case. His only role is to expedite a series of questions to the state’s highest court so that the trial can go forward. Or, as Calistro wrote in the main document, the answer to these questions will determine the case.
The judge said “I would strongly urge the appellate court to expedite” this issue. “This case has been pending for a long period of time. There are many issues and it has been very slow going.” He praised La Pierre and Calistro for working hard. “This case has dragged on a very long time.”
Then he ordered that a transcript of the day’s proceedings, including his comments, be expedited so that the entire package might be sent to the high court.
As he stood next to Dr. Wang, his new client, Simmons said his motions will go to the state’s Supreme Court. It doesn’t mean the high court will take the case; it might review it and send it to a lower appellate court or it may decide to keep it.
The judge set Aug. 20 at 2 p.m. as the next court date.
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