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ORD319.999 10-08-15 07:39:09


STATE OF CONNECTICUT v. EDUARDO SANTIAGO
               (SC 17413)
  The motion of the state of Connecticut, filed Septem-
ber 4, 2015, for argument, having been presented to the
court, it is hereby ordered denied.
                        October 7, 2015

   ROGERS, C. J., with whom ZARELLA and ESPINOSA,
Js., join, dissenting from the denial of the state’s motion
for argument and reconsideration. In State v. Santiago,
318 Conn. 1,       A.3d    (2015), a majority of this court
concluded that the death penalty is unconstitutional
under the due process provisions of our state constitu-
tion after the legislature’s prospective repeal of the
death penalty in No. 12-5 of the 2012 Public Acts (P.A.
12-5). In reaching this conclusion, the majority, over
the repeated objections of the dissenting justices,
addressed numerous issues that the defendant, Edu-
ardo Santiago, had not raised, and it relied on extra-
record materials that the state had not had an opportu-
nity to review or to respond to.1 In addition, the majority
relied heavily on testimony by Chief State’s Attorney
Kevin T. Kane that, in the majority’s opinion, demon-
strated that he believed that a prospective repeal would
constitutionally invalidate the death penalty for any
defendant who had not already been executed.2 See id.,
8 n.1. This purported reliance was nothing more than
a facade: the courts alone decide the constitutionality
of a law, not the state’s attorneys. See Marbury v. Madi-
son, 5 U.S. 137, 177, 2 L. Ed. 60 (1803) (‘‘[i]t is emphati-
cally the province and duty of the judicial department
to say what the law is’’ [emphasis added]). Thus, the
majority has overturned a democratically enacted law
of great significance to the people of this state on the
basis of claims that the defendant did not raise and
extra-record materials that the state did not have an
opportunity to review or to respond to, and on the basis
of statements by state officials on a constitutional issue
that this court had the exclusive constitutional duty to
resolve. In addition, the majority, without any notice
to the parties that it was considering such an action, and
after having just reaffirmed this court’s jurisprudence
regarding the constitutionality of the death penalty
under the state constitution in this very case, effectively
overruled that jurisprudence.
   After the decision in Santiago was published, the
state filed a motion for argument and for reconsidera-
tion, signed by the very official on whose statements the
majority so heavily relied, in which the state requested
permission to file supplemental briefing and to present
oral argument on the issues that it had not previously
had an opportunity to address. In that motion, the state
identified specific arguments and information that it
would have provided to this court if it had been on
notice that the court would consider those issues in
making its determination as to the constitutionality of
the death penalty.3 Thus, the state has emphatically
confirmed the validity of the dissents’ repeated warn-
ings that the majority was going far beyond the narrow
issues raised by the defendant in reaching its ultimate
conclusion. In a final effort to conceal the embarrassing
and now undeniable fact that the emperor has no
clothes, the majority has denied the state’s motion. I
emphatically disagree. It is crystal clear to me that the
most basic requirement of due process—the require-
ment for notice and a hearing—entitles the state to an
opportunity to be heard on these matters. See Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 162–63, 84 A.3d 840 (2014)
(reviewing ‘‘court may raise [a] claim sua sponte, as
long as it provides an opportunity for all parties to be
heard on the issue’’); Bloom v. Zoning Board of Appeals,
233 Conn. 198, 205, 658 A.2d 559 (1995) (‘‘[a] fundamen-
tal premise of due process is that a court cannot adjudi-
cate any matter unless the parties have been given a
reasonable opportunity to be heard on the issues
involved’’). At a bare minimum, the state is entitled to an
explanation as to why the majority finds it unnecessary
even to consider its arguments.
    To the extent that the majority believes that it has
already adequately explained in its opinion why it
addressed issues that the defendant did not raise and
relied on extra-record materials that the state had no
opportunity to review, any such contention does not
withstand scrutiny. The majority stated in its opinion
that it could ‘‘only assume that this choice [not to brief
these issues] represented a calculated decision, by both
parties, that, with their briefs already taking up more
than a ream of paper, resources—both natural and judi-
cial—would be better addressed to the novel issues
presented by the defendant’s case, and that we had
more than sufficient resources at our disposal to allow
us to fully review the present constitutionality of capital
punishment in a thorough and comprehensive manner.’’
State v. Santiago, supra, 318 Conn. 122.
    First, I begin with the obvious: the state has unequivo-
cally represented in its motion that it had no idea that
the majority would address issues that the defendant
had not expressly raised or extra-record materials that
neither party had cited, and that it would like the oppor-
tunity to address these issues for the first time now.
We must, of course, assume that these representations
are true. See Rules of Professional Conduct 3.3 (a)
(‘‘[a] lawyer shall not knowingly . . . [1] [m]ake a false
statement of fact or law to a tribunal’’).
    Second, there was absolutely nothing in the defen-
dant’s or the state’s supplemental brief to suggest that
the parties contemplated that the court would review
anything except the defendant’s narrow claims that
the enactment of P.A. 12-5 evinced a newly emerged
societal consensus that the death penalty is no longer
an appropriate punishment for the most egregious mur-
ders, that the death penalty no longer had any penologi-
cal value after its prospective repeal, and that the
effective date provision of P.A. 12-5 was arbitrary. The
parties assumed that, if this court agreed with any of
those narrow claims, the defendant would prevail and,
if the court disagreed, the state would prevail. The par-
ties did not assume, indeed, they could not have known,
that this court would revisit and effectively overrule its
entire jurisprudence regarding the constitutionality of
the death penalty under the state constitution—which
it had just reaffirmed in this very case—and that it
would do so largely on the basis of claims that the
defendant had not raised and extra-record materials
that the parties had never seen. Thus, the majority’s
contention that the state made a calculated decision
not to address issues that the defendant had not raised
has absolutely no basis in fact.
   Finally, the majority’s statement that the state
declined to brief these issues in its supplemental brief
because it believed that this court ‘‘had more than suffi-
cient resources at [its] disposal to allow [it] to fully
review the present constitutionality of capital punish-
ment in a thorough and comprehensive manner’’; State
v. Santiago, supra, 318 Conn. 122; without any input
from the state suggests a lack of understanding of or
respect for the adversarial system that is nothing short
of astonishing.
   Accordingly, since the majority does not want to hear
the arguments that the state has to offer on these issues,
I continue to maintain that the majority should have
limited itself to addressing the narrow claims that the
defendant actually raised, namely, that the legislature’s
enactment of P.A. 12-5, which abolished the death pen-
alty effective April 25, 2012, rendered the death penalty
unconstitutional because: (1) P.A. 12-5 embodied a
newly emerged societal consensus that the death pen-
alty is no longer an appropriate punishment for the
most egregious murders; (2) the death penalty no longer
has any penological value; and (3) the effective date
provision was arbitrary.
   If the majority had limited itself to these claims, the
sole bases for its conclusion that the death penalty is
unconstitutional would have been that: (1) the fact that
thirty-six out of 184 legislators had expressed moral
qualms about the death penalty during the legislative
debate on P.A. 12-5 shows that the death penalty is
inconsistent with contemporary societal mores in this
state;4 see State v. Santiago, supra, 318 Conn. 196 (Rog-
ers, C. J., dissenting); (2) P.A. 12-5 has completely elimi-
nated the death penalty’s deterrent value; id., 89; and
(3) after the enactment of P.A. 12-5, the death penalty
was not properly retributive, but was intended solely
to exact vengeance against ‘‘two particular offenders—
the much reviled perpetrators of the widely publicized
2007 home invasion and murder of three members of
Cheshire’s Petit family.’’ Id., 116. When the majority’s
analysis is limited to these issues, the weakness of its
ultimate conclusion is, in my view, self-evident. See id.,
251–76 (Rogers, C. J., dissenting). Indeed, if there was
ever any doubt, it is now inescapably clear that the
three main pillars of the majority’s analysis have no
foundation: Kane does not believe that the death penalty
is now inconsistent with contemporary societal mores
in this state; the moral qualms about the death penalty
expressed by thirty-six legislators during the debate on
P.A. 12-5 do not reflect the prevailing societal mores
in this state; and the state did not make a calculated
decision not to brief issues that the defendant did not
raise, which constitute the bulk of the majority opinion.
   In summary, the majority’s refusal to consider the
state’s arguments on issues that it previously has not
had an opportunity to address is simply inexplicable
and cannot be justified under any fair and rational stan-
dard. See Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., supra, 311 Conn.
146 (‘‘we rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter
of matters the parties present’’ [emphasis added]),
quoting Greenlaw v. United States, 554 U.S. 237, 243,
128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008); State v. Webb,
238 Conn. 389, 461, 680 A.2d 147 (1996) (‘‘the appear-
ance and the existence of impartiality are both essential
elements of a fair exercise of judicial authority’’ [inter-
nal quotation marks omitted]), aff’d after remand, 252
Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121
S. Ct. 93, 148 L. Ed. 2d 53 (2000); see also State v. Lenarz,
301 Conn. 417, 454–55, 22 A.3d 536 (2011) (Palmer, J.,
dissenting) (‘‘[T]he majority devises its unprecedented
methodology without any input from the parties, and
then proceeds to apply that methodology retroactively
to the present case, also without any input from the
parties. In doing so, the majority effectively has taken
over the litigation of the case from the parties them-
selves, an approach that this court rightly has character-
ized as exceeding the proper limits of its authority . . .
because the result is not the product of a truly adversar-
ial process.’’ [Citation omitted.]), cert. denied        U.S.
    , 132 S. Ct. 1095, 181 L. Ed. 2d 977 (2012). By denying
the state’s motion for argument and reconsideration,
the majority merely reconfirms my belief that it has not
engaged in an objective assessment of the constitution-
ality of the death penalty under our state constitution.
Instead, the majority’s conclusion that the death penalty
is unconstitutional constitutes ‘‘a judicial invalidation,
without constitutional basis, of the political will of the
people.’’ State v. Santiago, supra, 318 Conn. 278 (Rog-
ers, C. J., dissenting). Unfortunately, with this final act
denying the state an opportunity to speak on issues
that it has had no prior opportunity to address, this
regrettable episode in this court’s history concludes.
   I would grant the state’s motion for argument and
reconsideration. Accordingly, I dissent.
  1
     See State v. Santiago, supra, 318 Conn. 236 (Rogers, C. J., dissenting)
(defendant made no claim that death penalty is unconstitutional on basis
of historical development of death penalty in this state, rarity of its imposition
in state, sentencing practices in other states, opinions and recommendations
of professional associations, delays in executions, racial disparities in impo-
sition of death penalty, possibility of erroneous death sentences or inherent
conflict between constitutional requirement that discretion of jury to impose
death penalty must be cabined and requirement that its discretion to accord
mercy not be constrained); id., 236 n.3 (by addressing factors that defendant
did not raise, majority effectively overruled this court’s prior cases finding
death penalty constitutional under state constitution); id., 239 (validity of
this court’s previous holdings that death penalty is constitutional under state
constitution was not properly before court); id., 264 (defendant did not raise
claim that death penalty is so rarely imposed that it is unconstitutional,
parties did not have opportunity to brief issue, and trial court made no
factual findings on issue); id., 264 n.30 (majority relied on ‘‘cherry picked
extra-record sources that provide slanted and untested explanations for the
history of the death penalty in this state’’); id., 267 (majority relied on
‘‘slanted and untested sources that neither party has had the opportunity
to review or to respond to’’ in making determination that sentencing trends
and societal mores in other jurisdictions support conclusion that death
penalty is unconstitutional in this state); id. (majority relied on opinions
and recommendations of professional associations to support conclusion
that death penalty is unconstitutional even though defendant had not raised
issue and neither party had opportunity to review or respond to extra-record
sources that majority relied on); id., 271 n.34 (majority concluded that delays
in execution of defendants, racial disparities in imposition of death penalty
and danger of erroneous executions had diminished penological value of
death penalty despite fact that defendant had raised none of these claims);
see also id., 394–95 (Espinosa, J., dissenting) (majority improperly relied
on extra-record sources regarding sentencing practices in other states);
id., 396–97 (majority improperly relied on extra-record sources regarding
sentencing practices in this state).
   2
     As I stated in my dissenting opinion, I do not agree that Kane’s remarks
showed that he believed that, after a prospective repeal, the death penalty
would constitute cruel and unusual punishment. State v. Santiago, supra,
318 Conn. 261–62 n.28.
   3
     Specifically, the state made the following arguments, among others. First,
it pointed out that the majority concluded that ‘‘from the earliest days of
the colonies, and extending until the adoption of the state constitution in
1818, the people of Connecticut saw themselves as enjoying significant
freedoms from cruel and unusual punishment, freedoms that were safe-
guarded by our courts and enshrined in our state’s preconstitutional statu-
tory and common law.’’ (Emphasis added; footnote omitted.) State v.
Santiago, supra, 318 Conn. 37–38. The state contended that, to the contrary,
the scholarly literature shows that the preconstitutional law in this state
was intended to prevent courts from imposing punishments that the legisla-
ture had not authorized. It further contends that the due process clauses
of the state constitution were intended to codify this preconstitutional legal
tradition, not to allow courts to invalidate statutorily authorized punish-
ments. Therefore, the state argues, the evolving standards of decency rubric,
which allows courts to invalidate statutorily authorized punishments, does
not apply under the state constitution. Accordingly, the state contends that,
to the extent that this court concluded otherwise in State v. Ross, 230 Conn.
183, 246, 646 A.2d 1318 (1994) (‘‘our due process clauses impliedly prohibit
[statutory] punishment that is cruel and unusual’’), cert. denied, 513 U.S.
1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), Ross should be overruled.
   Second, the state pointed out that the majority concluded that ‘‘the death
penalty has lost its retributive mooring in Connecticut [because] the lengthy
if not interminable delays in carrying out capital sentences do not just
undermine the death penalty’s deterrent effect; they also spoil its capacity for
satisfying retribution.’’ (Internal quotation marks omitted.) State v. Santiago,
supra, 318 Conn. 99–100. The state contended in its motion for argument
and reconsideration that the majority failed to recognize that this reasoning
‘‘turns on its head the accepted proposition that a robust appellate procedure
is vital to shield inmates from improper death sentences.’’ In addition, the
state claimed that it could present evidence explaining the delays in execut-
ing the death penalty in this state that would undermine the conclusion that
the delays are unconstitutional.
   Third, the state pointed out that the majority concluded that ‘‘punishment
fails to satisfy the demands of retributive justice [because of] the ever
present danger of irreversible error.’’ State v. Santiago, supra, 318 Conn.
103. The state contended that the majority failed to recognize that: (1) none
of the prisoners on death row seriously contends that he did not commit
the crime for which he was sentenced to death; and (2) P.A. 12-5 has entirely
eliminated the possibility of erroneous death sentences for future crimes.
   Fourth, the state pointed out that the majority states that ‘‘it has become
apparent that the dual federal constitutional requirements applicable to all
capital sentencing schemes—namely, that the jury be provided with objec-
tive standards to guide its sentence, on the one hand, and that it be accorded
unfettered discretion to impose a sentence of less than death, on the other—
are fundamentally in conflict and inevitably open the door to impermissible
racial and ethnic biases.’’ Id., 14. The state contends that sentencers do not
have unfettered discretion to consider mitigating evidence in this state.
   Fifth, the state pointed out that the majority states that prosecutors have
‘‘virtually unfettered discretion whether actually to charge defendants with
capital crimes . . . .’’ Id., 25. In addition, the majority states that, ‘‘[a]fter
thoroughly reviewing the operation of Connecticut’s capital sentencing
scheme over the past four decades, we are persuaded that . . . the opportu-
nity for the exercise of unfettered discretion at key decision points in the
process has meant that the ultimate punishment has not been reserved for
the worst of the worst offenders.’’ Id., 114. The state contends that there is
no evidence that prosecutors have ever abused their discretion to seek or
not to seek the death penalty in a particular case and that this court pre-
viously has held that it would be inappropriate for this court to second-
guess the exercise of prosecutorial discretion.
   4
     Ironically, after this court’s decision in Santiago was released, one of
the strongest opponents of the death penalty in the legislature during the
debates on P.A. 12-5, Senator Gary A. Winfield, who was Representative
Gary A. Holder-Winfield at the time of the debates, stated publicly that P.A.
12-5 did not reflect a legislative or societal consensus that the death penalty
is no longer an appropriate punishment for the most egregious murders in
this state. Specifically, Senator Winfield stated: ‘‘I don’t see [this court’s
decision in Santiago] as a victory for several reasons. One, the Supreme
Court actually said something different than what we said. It didn’t just
agree with the legislature. The Supreme Court [decision] says, ‘What they
really wanted to do, despite what they said, is they really wanted to abolish
it anyway, so let’s go ahead and do that.’
   ‘‘So the Supreme Court is not in agreement with what the legislature did.
Let’s not get this confused. You might not like what happened. You might
not like where we wound up. But it’s not because the Supreme Court said,
‘OK, let’s give the legislature what they actually said they wanted.’ Because
if they were doing that, they would have left it like it is. Or they would have
gone back and said, ‘Look, for these reasons, which are completely separate
from any impetus from the legislature, the death penalty is abolished.’ ’’ P.
Bass, ‘‘Death Penalty Courage Or Hypocrisy?’’ New Haven Independent,
August 27, 2015, available at http://www.newhavenindependent.org/
index.php/archives/entry/death_penalty_courage/ (last visited October 7,
2015).
