Handicapping The Outcome of State v. Peeler (Part Two)

In my preceding post I presented my thoughts on how the justices of the Supreme Court would cast their votes in State v. Peeler. In this post I discuss the various possible outcomes (“PO”). As I explain, there are a number of permutations beyond simply reaffirming or overruling State v. Santiago (Santiago II).

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Handicapping The Outcome Of State v. Peeler (Part One)

Yesterday, the Connecticut Supreme Court heard oral argument in State v. Peeler, a case that presents the Supreme Court with the opportunity to reaffirm or overrule its decision last August in State v. Santiago (Santiago II), which abolished the death penalty. (I use the term Santiago II to distinguish it from an earlier decision in the same case, which the Court and parties refer to as Santiago I.)

I’ve written about the Santiago and Peeler cases at some length, and this post presumes the reader’s familiarity with my earlier posts. The purpose of Part One of this two-part post is to handicap the outcome of yesterday’s argument. In Part Two, coming soon, I will outline the various possible permutations of the Court’s eventual decision, which I do not expect for many months.

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What Will Justice Robinson Do In Peeler? (Or Is The Death Penalty Really Dead In Connecticut?)

When the Connecticut Supreme Court issued its recent 4-3 decision in State v. Santiago striking down the death penalty in Connecticut, most people thought that was the end of the story–whether they agreed with the decision or not.

I’m not so sure.

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The Death Penalty Is Really Dead

Over the strongly worded dissents of  Justices Zarella and Espinosa, the Supreme Court today stood by its decision last August in State v. Santiago, which abolished the death penalty.  Today’s decision (actually six opinions) in State v. Peeler had the potential to reverse Santiago due to a change in the composition of the court.  But Chief Justice Chase Rogers, who had dissented from Santiago, switched sides and voted to reaffirm Santiago based on stare decisis.  Justice Richard Robinson also voted with the majority to reaffirm Santiago on that same ground.

It will take me some time to digest all of the opinions.  What is notable, however, is that the Court issued a per curiam opinion, rather than the customary majority opinion penned by particular judge.  The Chief Justice, Justice Palmer and Justice Robinson each wrote concurring opinions.  As noted, Justices Zarella and Espinosa dissented.  Justice Zarella did not hold back:

I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error. Of course, it is possible that Justice Robinson believes that Santiago is correct, although he has not told us so. As I shall explain subsequently in this opinion, this approach prevents Justice Robinson from conducting—or at the very least from demonstrating to the public and to this court that he has undertaken a full, fair, and objective analysis of the benefit and costs of applying stare decisis to Santiago.

Supreme Court (Likely) Reaffirms Death Penalty Unconstitutional

According to the Judicial Branch website, the Connecticut Supreme Court will release its decision in State v. Peeler today (at 11:30 am) concerning the status of the death penalty in Connecticut. Last August, in State v. Santiago, the court held that the death penalty violated the state constitution’s prohibition against cruel and unusual punishments. But, as I’ve explained on this blog, today’s much-anticipated decision in State v. Peeler had the potential to overrule Santiago due to a change in the composition of the court (the retirement of Justice Flemming Norcott, Jr. and the addition of Justice Richard Robinson.

However, based on the number of concurring and dissenting opinions listed on the branch’s website, I think it is safe to say that the court will reaffirm Santiago.  The website lists a majority opinion, three concurring opinions and two dissents.  The dissents were almost certainly written by Justices Peter Zarella and Carmen Espinosa, who also dissented in Santiago.  That there are only two dissents likely means two things: First, Chief Justice Chase Rogers, who dissented in Santiago–describing “every step of [the majority’s] analysis [as] fundamentally flawed”–has switched sides, so to speak, and is now voting to reaffirm Santiago based on the doctrine of  stare decisis–Latin for “stand by things decided.” Second, Justice Richard Robinson, who was not on the panel that decided Santiago, has also voted to reaffirm that decision, likely for the same reasons as the Chief Justice.

We’ll learn at 11:30 if my prediction is correct.  Stay tuned.

Discussing The Death Penalty On “The Legal Eagle”


Lucy Gellman Photo

I had the pleasure of joining journalist Marcia Chambers this morning on “The Legal Eagle,” her weekly radio show on WNHH, the station owned and operated by The New Haven Independent.  We discussed a range of issues, including the oral argument in the Connecticut Supreme Court last week concerning the death penalty; the case the U.S. Supreme Court heard yesterday concerning the First Amendment and public sector labor unions; and recently enacted police body camera legislation.  Click here to listen to the show!

The Top Legal Stories Of 2015

The year 2015 anno Domini (or of the Common Era for new atheists out there) was chock full of big legal stories in Connecticut. I enjoyed covering them. According to my stats package, the following five stories are the ones readers found most interesting:

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Supreme Court To Rehear Arguments In Death Penalty Case

The Connecticut Supreme Court announced today that it will hear additional oral arguments on January 7, 2016 (10:00 a.m.) concerning the constitutionality of the death penalty.  In particular, it will decide whether to reaffirm, or overrule, its decision last summer abolishing the death penalty.

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Some Thoughts On Stare Decisis And Connecticut’s Recent Death Penalty Decision

In recent weeks, lawyers, the legal press in Connecticut, and this blog, have been discussing the possibility that a pending death penalty case in the Connecticut Supreme Court, State v. Peeler, could overrule the court’s recent decision in State v. Santiago. Santiago held that a statute passed in 2012, which expressly repealed the death penalty prospectively, had the unintended effect of rendering capital punishment unconstitutional under the state constitution for the 11 men already on death row. More accurately, the discussion has focused on whether the Supreme Court should use the Peeler case to overrule Santiago.

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It Ain’t Over Till It’s Over

No, I’m not referring to Yogi Berra’s recent passing.  No, I’m not referring to Lenny Kravitz’s 1991 song.  Yes, I am referring to the status of the death penalty in Connecticut.

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