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ORD319.7E 10-30-15 15:31:42

   ESPINOSA, J., dissenting from the denial of the
state’s motion for stay of execution. I disagree with the
decision of this court to deny the state’s motion for a
stay of execution in State v. Santiago, 318 Conn. 1,
A.3d      , reconsideration denied, 319 Conn. 912,
A.3d       (2015), pending the resolution of the appeal
in State v. Peeler, Docket No. SC 18125 (argued July
10, 2014). Because the majority in Santiago resolved
this appeal on bases not raised by the defendant, Edu-
ardo Santiago, the state was deprived of fair notice and
has not yet had the opportunity to address those issues.
Fundamental principles of fairness dictate that the state
should have a meaningful opportunity to present argu-
ment as to those issues. Consistent with basic principles
of justice, the people of the state of Connecticut—
whose interests are represented by the state—have a
right to be heard after receiving proper notice of the
issues that are in play, and without prejudice. This court
has ordered the parties to file supplemental briefs in
Peeler on the very issues that the state did not have the
opportunity to address in Santiago. That order alone,
however, does not guarantee the state a meaningful
opportunity to present its arguments. Granting the stay
in Santiago would ensure that the state could advance
its arguments without being hampered by any sugges-
tion that the issues have been rendered moot by the
likelihood that the offenders currently on death row
will have had their sentences vacated and commuted
to sentences of life without the possibility of release
prior to a decision in Peeler. Denying the state’s motion
for a stay, therefore, creates an unreasonable risk of a
‘‘deleterious effect . . . on the public’s perception of
the procedural fairness of the criminal justice system.’’
State v. Elson, 311 Conn. 726, 740, 91 A.3d 862 (2014).
   In light of the prejudice that would be suffered by
the state by the likelihood that its claims will be ren-
dered moot following the resentencing of the offenders
on death row absent an appeal by the state, strict adher-
ence to the rules of practice will work injustice. There-
fore, pursuant to Practice Book §§ 60-1 and 60-2, I would
grant the state’s motion to stay the execution of the
judgment in Santiago, pending the resolution of the
appeal in Peeler. I recognize that § 60-2 (4) ordinarily
authorizes only the stay of ancillary proceedings, and
I do not agree with the state that the appeal in Santiago
constitutes a proceeding that is ancillary to the appeal
in Peeler. Because in the present matter, ‘‘strict adher-
ence’’ to the rules of practice would work an injustice,
however, § 60-1 not only authorizes, but requires this
court to interpret the rules liberally to grant the stay.
Denying the people of this state the opportunity to
present argument on an issue as important as the one
presented in these appeals, however, is inconsistent
with fundamental principles of fairness.
   It is ironic that the majority anchors its decision deny-
ing the stay on the insinuation that the state has engaged
in panel shopping. The very reason that the state cannot
present its arguments to the Santiago panel is because
the majority in that panel denied the state’s motion for
argument and reconsideration filed in that case. First,
I observe that the state’s willingness to submit these
issues to the Santiago panel in and of itself should
silence any speculation that the state’s aim is to shop
for a panel ‘‘more to its liking.’’ Second, I note that the
term panel shopping implies that a party chooses one
panel over another—the Santiago majority took any
such choice away from the state and now has the audac-
ity to accuse the state of panel shopping.
   Finally, I observe that it would be improper for the
court to rely on this order declining to stay the execu-
tion of the judgment in Santiago as a shield to avoid
addressing the substance of the arguments of the people
of this state on the important issue of whether the death
penalty violates our state constitution. The people of
this state have not yet been heard on this issue, and
justice demands that this court address their arguments.
  Accordingly, I dissent.
