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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AG Jepsen: “Spending Cap Is Unenforceable.”

Few things are more gratifying to a lawyer than when another lawyer of great stature agrees with the first lawyer’s legal opinion on some matter of significance. So, needless to say, I was quite pleased yesterday when I read Attorney General George Jepsen’s legal opinion that the state’s constitutional spending cap “has no current legal effect,” i.e., it is unenforceable. I wrote a couple of blog posts last April that reached that same conclusion.

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Some Thoughts On Making A Transportation “Lock Box” Judicially Enforceable

Governor Malloy has renewed his call for a constitutional amendment that would create a “lock box” for tax revenues dedicated to transportation infrastructure projects. He wants to ensure that certain sales tax and other revenues are actually used for the purpose for which they were levied.

I express no opinion on [have no expertise germane] to whether a transportation lock box makes good sense as a matter of public policy. I do have an opinion, however, on whether a lock box amendment would be judicially enforceable. My opinion is that unless the proposed amendment contains specific language vesting jurisdiction in the state courts to decide cases involving alleged violations of the lock box, the Connecticut Supreme Court will is likely to treat lock box disputes as “political questions” over which the judicial branch has no jurisdiction. The end result could be “feel good,” but legally unenforceable, language in the state constitution.

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The Supervisory Authority “Disagreement” Continues On The Supreme Court

Today, for the second time in two weeks, the Connecticut Supreme Court took the unusual step of publishing on its website an order denying a motion for rehearing in a case.  (Opinions resolving appeals are always published; rulings on motions for reargument are almost never written, much less published.) Two justices–Zarella and Espinosa–dissented from the court’s decision denying the state’s motion for reargument in In re: Yasiel R., a case involving the termination of parental rights. In that case a majority of the court rejected the appellant’s claim of constitutional error in the termination proceedings, but then proceeded to invoke the court’s “inherent supervisory authority over the administration of justice” to make up a new rule concerning termination proceedings. The court then applied that new rule retroactively to provide relief to the appellant. Justices Zarella and Espinosa both issued strong dissents.

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Coming Your Way Soon: The Little Book Of Big Appellate Tips!


I’m very pleased to announce that I’m on the cusp of releasing my first book, Appealingly Brief: The Little Book of Big Appellate Tips (Or How to Write Persuasive Briefs and Excel at Oral Argument).  Click here for more information about the book, including a free excerpt in pdf format.  The full book will be published later this fall in both print and e-book formats.

The book contains 37 specific tips, many with multiple sub-tips, pointers and suggestions, on brief writing and oral argument.  While I would like to take sole credit for these tips, the truth is that they represent the collective wisdom of brilliant jurists and appellate lawyers like former Connecticut Supreme Court Chief Justice Ellen Ash Peters, former Wiggin & Dana appellate guru (and later federal district judge) Mark Kravitz, and so many other very wise folks, including but not limited to former Supreme Court Justices David Borden, Joette Katz, Barry Schaller and Ian McLachlan.

Stayed tuned for further information on the official publication date.

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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A Death Penalty Hypothetical For The Connecticut Supreme Court

Appellate judges are famous for asking hypothetical questions.  They are a very important part of the oral argument process, as they help the judges understand how their decisions in particular cases may apply to future cases.

Advocates rarely get to ask judges hypothetical questions, but I’m going to ask one anyway. It is directed to the esteemed justices of the Connecticut Supreme Court who last week, in a 4-3 decision, abolished the death penalty. (I don’t expect an answer of course. This is just a thought experiment.) The Supreme Court held that a statute the General Assembly passed in 2012, which repealed the death penalty prospectively only–an essential element of the legislative compromise required to get the votes to support any repeal–had the unintended effect of rendering the death penalty cruel and unusual punishment, and thus violative of the Connecticut Constitution, for the 11 men already on death row.  That is, according to the Supreme Court, the repeal statute accomplished precisely what it was not intended to do–abolish the death penalty entirely.

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“Obamacare Survives! The King v. Burwell Saga Ctd.

In a 6-3 decision penned by Chief Justice John Roberts, the Supreme Court once again upheld the Affordable Care Act against attack by forces committed to its destruction–interest groups that seem absolutely convinced that our country is better off when millions and millions of people do not have health insurance.

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Deconstructing The Jane Doe Due Process Decision

The Jane Doe case is back in the news.  Jane Doe is the transgender teen who, at the request of the Department of Children and Families (DCF), was transferred temporarily to the York Correctional Institution for Women in Niantic because of her history of physical violence towards other girls and DCF staff.

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How Did Lapointe Know Bernice Martin Was Raped?

As the State of Connecticut considers whether to retry Richard Lapointe, and as many of his supporters try to persuade the state not to do so, I offer readers this short, yet significant, excerpt from the Connecticut Supreme Court’s 1996 decision rejecting his direct appeal from his conviction for murdering Bernice Martin, his wife’s eighty-eight year old grandmother:

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