[Deathpenalty] death penalty news----CONN.

[Rick Halperin]

Nov. 5



CONNECTICUT:

Public Defender, Prosecutors Continue to Spar Over Conn. Death Penalty Rulings


A Connecticut public defender who represents 2 former death row inmates is 
unhappy with continued efforts by prosecutors to persuade the state Supreme 
Court to reconsider a recent decision to abolish the death penalty in 
Connecticut.

The matter was seemingly settled by the Aug. 25 decision in State v. Santiago, 
when the Supreme Court ruled that the legislature's 2012 decision to abolish 
the death penalty only for future capital cases, but not for death row inmates, 
was unconstitutional. But to the surprise of many in the appellate and defense 
bars, the court shortly afterward agreed to review new arguments in another 
death penalty case, State v. Peeler. The Chief State's Attorney's Office and 
Public Defender Mark Rademacher now have Nov. 6 deadlines to file 35-page 
briefs in the Peeler case.

Rademacher, who represents both Eduardo Santiago and Russell Peeler, said in an 
interview: "Everyone thinks the Santiago decision in August was the end of it, 
but it feels like there's a new round of briefs to write every week, responding 
to the state's motions."

The 35-page Peeler brief is the most recent of five briefs Rademacher has had 
to write in the wake of Santiago. The state had previously filed motions asking 
that there be a stay of implementation of the Santiago ruling; the Supreme 
Court on Oct. 30 rejected that request.

"The state's attorneys simply refuse to accept the fact that they've lost," 
Rademacher said. He called the idea of staying the Santiago ruling until Peeler 
is decided "desperate" and "an example of judge-shopping at its very worst."

The judge-shopping accusation refers to the fact that the Santiago decision was 
rendered by a court that included Justice Flemming Norcott Jr., who left the 
court after reaching the mandatory retirement age of 70 in October 2013. But 
under court rules, Norcott, a consistent opponent of the death penalty during 
his 22 years on the court, was allowed to finish work on the Santiago case, 
which was argued in April 2013.

In December 2013, Norcott was replaced by Justice Richard Robinson. In his 15 
years as a Superior Court and Appellate Court judge and Supreme Court justice, 
Robinson has not written opinions on the death penalty, but he often sides with 
traditionally conservative Justice Peter Zarella on criminal decisions, court 
watchers say. The more conservative Robinson heard the oral arguments in the 
Peeler case in July 2014 and presumably was the deciding vote on whether to 
accept re-argument of the case.

Chief State's Attorney Kevin Kane countered Rademacher's accusations, saying 
that the state has simply been seeking a chance to argue questions that were 
not certified in Santiago, but were central to the majority decision in that 
landmark case. "It's simply a matter of fairness," Kane said. "We were not 
panel shopping. In fact, we submitted our motions to both the Santiago panel 
and the Peeler panel, and would have been equally happy to have the opportunity 
to argue to either one."

The state says it particularly wants to argue more about Connecticut's fairness 
in imposing the death penalty, and whether race has been a factor in capital 
cases. A long-running Superior Court case ultimately found the state was not 
unconstitutionally discriminatory; that case, In re Racial Disparity, is now on 
appeal to the Supreme Court. Both Norcott and Robinson are African American.

Members of the appellate and defense bars have called the attempts to overturn 
the Santiago ruling just months after his release "flabbergasting," 
"troubling," "amazing," and "unheard of," among other things.

Jay Ruane, a Shelton lawyer who heads the Connecticut Criminal Defense Lawyers 
Association, commented: "It is flabbergasting to me, as a lawyer, to see what 
has happened with the Santiago decision and with the Peeler decision, and with 
the change in the composition of the [Supreme Court] panel, and what might 
happen."

He said the twists and turns in the matter are "unprecedented," particularly in 
light of in the stakes involved. "We're talking about men's lives," Ruane said. 
"While acknowledging that the crimes they committed were serious, it's amazing 
to me that in this day and age we could have a situation where, after a case is 
decided and you're off death row, another case is decided and you're back on."

Social Science Data

The sequence of events involving the death penalty decisions can be hard to 
follow. But this is the essence of what's going on:

In Santiago, a 4-3 majority held that capital punishment was cruel and unusual 
under Connecticut's Constitution because it did not comply with the state's 
evolved standards of decency, and served no legitimate penological purpose, 
such as deterrence or retribution. The decision affected only the 11 men on 
death row. They include some of the state's most widely detested people: the 2 
perpetrators of the Cheshire home invasion murders and Russell Peeler, who 
ordered the execution of potential witnesses against him - an 8-year-old 
Bridgeport boy and his mother.

The original Santiago opinions - majority, concurring and dissenting - are a 
weighty 250 pages. The majority was written by Justice Richard Palmer, joined 
by Norcott, Andrew McDonald and Dennis Eveleigh. Chief Justice Chase Rogers 
dissented, joined by Zarella and Carmen Espinosa.

Rogers focused her ire on the concurring opinion by Norcott and McDonald. They 
wrote a summary of Connecticut's history of having the state impose death 
disproportionately upon members of minority groups and the economically and 
educationally disadvantaged. Rogers contended that Norcott and McDonald 
unfairly "cherry picked" the social science data.

Encouraged by Rogers and the minority, appellate lawyers in the Chief State's 
Attorney's Office have been taking unprecedented steps to keep the death 
penalty alive for those on death row. In early September, senior state's 
attorneys Harry Weller and Marjorie Dauster moved quickly for permission to 
re-argue Santiago, and to brief additional issues.

In an apparently unprecedented move, they also asked the court to erase 
portions of the majority opinion; those dealing with the historic racial 
disparity in imposing death sentences in Connecticut. They also asked the court 
to completely strike the concurring opinion of Justices Norcott and McDonald.

And, in another death penalty case in which oral arguments have already been 
held, State v. Peeler, the state asked to file supplemental briefs to argue 
those issues it had not briefed in Santiago.

On Oct. 7, the Santiago panel denied three of the state's motions, with Rogers 
posting her emphatic dissent on the court website. But it did grant the state 
permission to brief and reargue Santiago issues in the Peeler case.

Still, the prosecutors wanted to keep Santiago from becoming final in order to, 
according to their briefs, "mitigate any risk that this court will see itself 
compelled to adhere to bad precedent." Twenty days after reargument is denied, 
a Supreme Court judgment is final. That deadline was Oct. 27. To beat that 
deadline, the state filed motions on Oct. 19 and 21 for an indefinite "stay of 
execution of entry of judgment" of Santiago, pending the future decision of 
Peeler.

In response, Rademacher argued that to reinstate Santiago's death penalty would 
constitute double jeopardy. Nothing in Connecticut's Practice Book allows the 
high court to do anything but order Santiago's death penalty sentence reduced 
to life without release, Rademacher wrote in a brief opposing any stay.

On the afternoon of Oct. 30, after having extended the deadline three days, the 
court refused any stay to the implementation of Santiago. 6 of the 7 justices 
agreed on the ruling, including Chief Justice Rogers and Peter Zarella, both of 
whom had originally dissented in the original decision to abolish the death 
penalty.

Palmer explained in detail why the court was dismissing the state's motion for 
a stay. A stay of a judgment may be proper in some cases, Palmer wrote, but not 
one like this, in which a losing party hopes that the outcome of a different 
appeal, filed later by a different party and decided by a different panel of 
justices, "may be more to its liking."

Palmer questioned how the state could argue it was not on notice about the 
central issues of the Santiago case. 6 pages of state briefs argued that 
Connecticut's standards of decency have not evolved to the point that the death 
penalty has been rejected. Another 6 pages, Palmer wrote, argued that death was 
not cruel and unusual under the state Constitution. The state has also argued 
that the death penalty continues to satisfy the legitimate penological 
objectives of deterrence and retribution, and not just revenge.

In her Oct. 30 concurrence, Rogers explained why she initially voted for 
reargument of Santiago but then refused the state's extraordinary request to 
stay a settled decision to make way for a subsequent decision in a separate 
case. She wrote that she had never heard of the Supreme Court doing this 
before.

The judgment in Santiago is now final under the rules and procedures of the 
court, Rogers wrote, and not following them would "undermine the public faith 
in the integrity of this court, which is ultimately the sole basis of its 
authority."

In a final footnote, Rogers added that she would express no opinion whether the 
Santiago ruling would be binding on the long-pending Peeler decision. That 
issue, Rogers wrote, "must be decided, not in the present case, but in Peeler."

'Unpalatable Alternatives'

Meanwhile, members of the appellate and defense bar has tried, sometimes in 
vain, to keep up with all the death penalty case decisions. However, they were 
even more troubled by the bigger-picture issue of the state Supreme Court 
seemingly flip-flopping on an issue of such importance.

Ruane, the CCDLA president, said it is unseemly for a one-judge change in the 
Supreme Court makeup to potentially overturn a decision as momentous as 
Santiago.

Daniel Klau, an appellate lawyer at McElroy, Deutsch, Mulvaney & Carpenter, 
said the rule allowing retiring justices to finish any case they have started 
on was having far-reaching effects. He found it "troubling" that a major 
Supreme Court case could still be pivotally influenced by a justice who had 
left the high court bench nearly 2 years before.

The chairman of the appellate litigation section at Halloran & Sage, Daniel 
Krisch, said the court was "between a rock and a hard place," as it sorts out 
its duties to allow full and fair argument of the issues in the interest of 
arriving at the correct decision, and to uphold the doctrine of stare decisis, 
which only disturbs a decision for extraordinary reasons and when it is clearly 
wrong.

"The court has relatively unpalatable alternatives," said Krisch. It can stick 
with what it decided in Santiago and apply that ruling in Peeler, he said, and 
"I assume that's what the Santiago majority would like to do. It would serve 
the interest of stare decisis."

On the other hand, said Krisch, "if they reverse Santiago in Peeler, they would 
reach the result that the dissenters in Santiago think is the correct result, 
but it could have a negative effect on the court's moral authority.... The 
prospect of the court deciding such an important issue one way, and then 
changing its mind in very short order, is something I think could damage the 
court's standing," Krisch said.

(source: Connecticut Law Tribune)