Connecticut’s death penalty remains abolished

Today, the Connecticut Supreme Court affirmed the abolition of the death penalty in this state, in an extremely contentious and hotly anticipated opinion in the matter of State v. Peeler.

In August 2015, the Court issued a divided 4-3 opinion, ruling that the legislature’s prospective abolition of the death penalty in 2012 rendered the death penalty unconstitutional as to all death row inmates and thus Connecticut could no longer have a death penalty.

A few months later, the State petitioned for reargument, which the Supreme Court denied. In another appeal pending at that time, State v. Peeler – also a death penalty case – the court did grant the State’s request for supplemental briefing and argument.

The crux of the State’s complaint – echoed by Santiago dissenters – was that the Supreme Court based its decision on matters that it did not have the opportunity to brief. This position was supported by some commentators and rejected by others.

The big question that everyone was waiting for an answer to was if the Court would quickly and summarily reverse itself on a major issue such as the death penalty and what that meant for stare decisis in Connecticut. If the Court reversed itself, and with the addition of a new member to the Court held the death penalty constitutional, would that violate the Eighth Amendment’s prohibition against arbitrary and capricious punishments?

Today, the Supreme Court answered all those questions. In a per curiam decision, the Court concluded that Santiago governed and that it should not be overruled. The fact that the majority opinion was per curiam should not fool anyone. There are 5 separate written opinions. The major question was the shuffling of votes and who would vote to do what.

Stare Decisis

Most notably, the Chief Justice, who voted to affirm the death penalty in Santiago, voted to affirm abolition today. Her change in vote was not driven by a sudden realization that the death penalty should be held unconstitutional, but rather her realization that a swift reversal of such a groundbreaking decision so quickly, and based solely on the change in the membership of the Court, would so untenably undermine the legitimacy of the rule of law in Connecticut:

When neither the factual underpinnings of the prior  decision nor the law has changed, “the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

Quoting Planned Parenthood of Southeastern Pa. v. Casey.

The Chief Justice correctly noted that the role of the Judicial Branch was to fashion a coherent jurisprudence that litigants and the citizens of the State could rely on. To so swiftly reverse itself on a matter of such critical importance would only serve to undermine its authority and legitimacy as the ultimate arbiter of the law.

Regardless of any reliance on the majority decision in Santiago, or lack thereof, stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty.

Change in membership of the Court

The Chief, and many others, were concerned with the effect of reversal of Santiago solely because a new member was now on the bench. That new member is Justice Richard Robinson, who took over from Justice Norcott, who voted for – and always has – abolition. To have a vote on so critical an issue of public policy reversed in less than a year simply because one member of the Court is now different, would be the very definition of arbitrary and capricious. Justice Palmer, who authored the abolition decision in Santiago, said as much:

The state now proposes that we reauthorize the  death penalty and proceed to execute the defendant, Peeler, solely on the basis of the fact that a different panel of this court, having considered essentially the same arguments only months later, might reach a different  result. Nothing could be more arbitrary than to execute one convicted capital felon who committed his offense prior to the enactment of P.A. 12-5 but to spare another, solely on the basis of the timing of their appeals.

The Chief Justice also noted that three of the Santiago bench were still on the bench when they heard Peeler (Palmer, McDonald, Eveleigh) and all three joined in an opinion today rejecting the State’s arguments. The fourth – Justice Norcott – was always opposed to the death penalty. Thus, the Chief Justice reasoned, had the State presented its arguments the first time around, the outcome would not have been different:

Accordingly, it is clear that, if these issues had been raised and briefed in Santiago, the result would have been no different. In fact, the only change that has occurred is a change in the makeup of this court, which occurred after oral argument in Santiago but before the decision was released.

To indulge the State and reverse Santiago solely because the makeup of the Court is different by one person is not only arbitrary and capricious, but also renders every opinion ever issued non-binding. All a party has to do is wait for a Justice to retire to re-litigate and rehash issues that were considered “settled.” The legitimacy of the law would never be able to survive such a regular assault.

Addressing the State’s complaints

Justice Palmer, who authored the decision abolishing the death penalty in Santiago, wrote a lengthy concurrence rejecting each argument made by the State. Most notably, he dispensed with the State’s underlying argument that the Supreme Court just did not have the authority to do what it did:

The state next argues that the death penalty can never be held unconstitutional because ‘‘it is expressly permitted by the Connecticut constitution.’’ … [T]he state recommends for our consideration a concurring opinion authored by Justice Antonin Scalia, who opines that ‘‘[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates.’’ (Emphasis omitted.) Glossip v. Gross, supra, 135 S. Ct. 2747 (Scalia, J., concurring). The dissenting justices in Santiago raised similar objections. See, e.g., State v. Santiago, supra, 318 Conn. 246–47 (Rogers, C. J., dissenting); id., 353–54 (Zarella, J., dissenting).

The state’s argument appears to be that, with respect to the Connecticut constitution in particular, the due process clause of article first, § 8, cannot form the basis for holding capital punishment unconstitutional when that same clause authorizes the state to impose the death penalty, as long as it affords adequate due process of law. As the aforementioned authorities explain, however, this argument rests on two conceptual errors. First, a declaration of rights such as that contained in article first of the Connecticut constitution, or the federal Bill of Rights, is not a grant of governmental authority; rather, it delineates the rights and freedoms of the people as against the government. See State v. Conlon, 65 Conn. 478, 488–89, 33 A. 519 (1895); see also J. Blocher, supra, pp. 3, 8–9. For the state to suggest that one right (to be free from cruel and unusual punishment) bars the exercise of another right (presumably, to execute capital felons) is to fundamentally misunderstand the nature of the freedoms enshrined in article first. States have powers, and the people have rights vis-a`-vis the exercise of those powers; there is no governmental right to kill.

More damaging to the State, however, is Justice Robinson’s concurrence. Justice Robinson, the only member of the Court who did not opine on the constitutionality of the death penalty in Santiago, sided with abolition here on stare decisis grounds and much to the disappointment of some, on the grounds that Santiago properly reached and decided the issue of the constitutionality of the death penalty:

Specifically,  I have reviewed the opinions and briefs filed in Santiago, and determined that the majority in that case did not unreasonably read the record and the authorities when it concluded that: (1) the issues decided therein were raised by the parties, thus affording the state notice and an opportunity to brief them, had it elected to do so; and (2) the death penalty now is cruel and unusual punishment under our state’s constitution in the wake of the death penalty’s prospective repeal in No. 12-5 of the 2012 Public Acts.

In other words, Justice Robinson did not agree with the State’s position that the Santiago court exceeded its bounds, as suggested by the Santiago dissenters (including the Chief Justice) and some commentators. Also be sure to read footnote 1, which serves as a wonderful note in support of Justice Norcott and a firm rebuttal of some dubious allegations leveled against his continued participation in Santiago by some.

The end of death

Today, the Connecticut Supreme Court issued its opinion, re-affirming that the death penalty has no place in modern day Connecticut. We shall “no longer tinker with the machinery of death” and our standards of decency have evolved to the point where we no longer consider it humane to execute our fellow men.

That the Court had to do so while the State mounted an unprecedented assault on its legitimacy and its ability to perform its Constitutional function of ruling on the laws of our State will serve only to further strengthen the legacy of this institution and the confidence of our citizenry in the idea that our Court rules not with its heart, but with its intellect and serves not personal opinions, but rather the rule of law.

Foster v. Chatman and the necessity of peremptories

In 1986, the United States Supreme Court issued a groundbreaking decision, ruling that race could not be used as a factor in deciding who could be a juror in a criminal case.

In 1987, Timothy Foster was tried for capital murder, convicted by an all-white jury and sentenced to death.

In 2006, Foster’s lawyers make an Open Records request, asking for the prosecutors’ files. This is what they found:


If you can’t tell – or haven’t read any other stories about this – the prosecutors put a B next to each African-American and highlighted them in green.

Today, the United States Supreme Court, by a vote of 7-1, reversed Foster’s conviction, holding that the prosecutors’ tactics violated Batson. For a terrific breakdown of the lone dissenting vote and the increasingly passive-aggressive nature of SCOTUS, read this by Garrett Epps.

The decision is a condemnation of racial bias in jury selection – a practice that continues today – and perhaps a hint that some conservative members of the Court have dropped the pretense that racial bias in the criminal justice system is non-existent.

But while this decision points out all that is wrong with racial bias and tells us that it is unacceptable, it does nothing to provide any guidance how.

Many, including the inimitible Stephen Bright who represented Foster, have seized this opportunity to suggest one way to eliminate racial discrimination in jury selection:

“The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”

The idea behind Justice Marshall and Bright’s suggestion is that if there is no way for prosecutors to arbitrarily excuse people from jury service, then they can’t use that mechanism to arbitrarily excuse black people.

The idea has superficial appeal, but much like some other ideas for reforming the justice system, are counterproductive and downright dangerous when probed further.

As a practicing lawyer, peremptory challenges are a valuable if imperfect tool to weed out biased jurors who are smart enough to not divulge their biases. It allows both sides to decide that a particular individual, while giving the right answers, may not be sympathetic to their side and thus exercise a “challenge” to their suitability to be a juror.

Peremptories: imperfect but necessary

Obviously, nefarious and ill-meaning prosecutors have used this power to eliminate minorities and that is unacceptable. But prosecutors are also far more likely to be okay with picking the first 12 people that walk through the door. That’s because, as a society, we are far more deferential to the prosecution than the “criminals” who are accused of crimes. People are far more likely to be supportive of police and automatic believers in their veracity. People are far more likely to view defendants from urban settings more negatively.

People are also very unlikely to openly admit their biases in front of complete strangers. Jury selection – as it is permitted in most of the country – is extremely poorly equipped to uncover these biases. So lawyers are limited to several basic questions which are all poor clones of “can you be fair?” When a juror answers yes, despite every other fiber of their being giving off a signal that they absolutely will not be, there is nothing a lawyer can do but exercise that peremptory challenge and excuse them.

As any experienced trial lawyer will aver, even jurors who candidly admit their biases are routinely rehabilitated by the prosecutor or the judge and most are smart enough to take the obvious hints and bring their opinions back to the neutral middle. Without peremptories, a defendant would be stuck with an obviously biased juror who had the werewithal to follow the judge’s coaching that he would follow the judge’s coaching.


Fixing the problem of racial bias

Surprise, there’s no one paragraph solution to this problem. But the problem of racial bias is not limited to jury selection and any solution shouldn’t focus only on that. Prosecutors who engage in discriminatory selection don’t suddenly play fair during trial or during plea bargaining or during the signing of warrants. Bias during selection is indicative of bias throughout the process.

We need to tackle that – it’s a shift in mindset that is required in America. If we want to reduce bias, we need to hold prosecutors and judges accountable; appellate courts must make it less insurmountable for petitioners to prove bias and get relief; defense lawyers must not be afraid to challenge prosecutors and question their decisions; there must be greater diversity in the justice system, in prosecutor offices, public defender offices and on the bench.

We need our stewards of justice to realize that justice doesn’t mean winning – it means doing the right thing.


Utah v. Strieff and the importance of the exclusionary rule

The United States Supreme Court is currently pondering a case that may change the way modern America polices its communities. I realize that this is a pretty bold statement to make, especially in light of the ongoing conversation in America over the last year or two over policing standards especially in minority communities, but the impact of the decision in this case could be such that it will only further deepen the divide between police and the communities they serve.

The Exclusionary Rule

The case is Utah v. Strieff, in which the question the Justices are grappling with revolves around the application of the so-called ‘Exclusionary Rule.’ The Fourth Amendment protects us against unreasonable searches and seizures, but there’s no mechanism for enforcing that protection. The exclusionary rule is a

judicial remedy that gives life to that protection.

State v. Strieff, 357 P.3d 532, 538 (Utah 2015). It is the punishment imposed upon the Government for failing to abide by the restrictions of the Fourth Amendment. In simpler terms, evidence that is obtained in violation of the Fourth Amendment is not admissible at trial against an accused – thus the evidence is “excluded.” In deciding whether to exclude evidence illegally collected, courts apply the “fruit of the poisonous tree” doctrine: whether there is a causal link between the illegal police conduct and the evidence in question.

As the CT Supreme Court explained:

Thus, evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint…. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).” (Internal quotation marks omitted.) State v. Luurtsema, 262 Conn. 179, 189, 811 A.2d 223 (2002). In other words, “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

State v. Brunetti.

Applying the standard exclusionary rule in this case produces a simple result: Strieff was illegally stopped in his car and as a result of that illegal stop, the police discovered he had a warrant and arrested him. As a result of that arrest, they conducted a search of his person and found contraband.

There is the classic “but-for” connection: but for the illegal stop, they wouldn’t have found his warrant and wouldn’t have arrested him and wouldn’t have found the contraband.

Exceptions to the Rule

Now, there are three circumstances in which such evidence is nonetheless admissible: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception. It is this third exception that Utah relies on: the existence of a warrant is an intervening circumstance that renders the illegal stop irrelevant.

Courts across the country are divided on the issue and this is what the Supreme Court is asked to decide. But the issue runs deeper: as at least two commentators have noted, the future of the exclusionary rule may hang in the balance here.

Whether the court merely decides that the exclusionary rule does not apply when there is a legal warrant after an illegal Fourth Amendment event, or whether it goes further and erodes the protection of the exclusionary rule in all cases, the impact will be tremendous.

Impact on Policing

Just last week, Central Connecticut State University released its annual report on racial profiling in Connecticut. The news wasn’t much better than previous years:

But when researchers reviewed stops made during daylight hours, when they said officers could see the race and ethnicity of drivers, Hispanics were nearly 14 percent more likely to be pulled over and blacks were about 7 percent more likely to be stopped than they were at night.

The report also says minorities were more likely to get misdemeanor summons for speeding and other infractions, while whites were more likely to get written warnings.

And as last year’s report revealed:

The six-month data also showed that black and Hispanic motorists were at least twice as likely as a white motorist to be subjected to a consensual search, though the stops of white drivers were more likely to yield contraband.

And now the problems with any opinion in Strieff limiting the exclusionary rule or doing away with it become clear. If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.

Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the lack of an exclusionary rule – or the existence of a warrant as an intervening circumstance – would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.

Finally, the CT Supreme Court recently approved of a stop and a search in a case where there was no suspicion of criminal activity at the time of the stop, but merely based on past observations. They also ruled:

Officer Lopa was approaching a person he knew to traffic in large quantities of marijuana and cash. Accordingly, it was reasonable to suspect that the defendant might be armed to safeguard the drugs and the cash.

Bolstered by the lack of an exclusionary rule, officers would have unfettered power to detain, search and investigate individuals in the absence of reasonable suspicion or probable cause. This, as the data bears out, would unfairly target minority communities, but would also render the protections of the Fourth Amendment nearly meaningless.