a public defender

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For the second time, a jury sentenced Russell Peeler to death for ordering his brother to kill a woman and her son days before the son was scheduled to testify against Peeler in a different prosecution.

The jury, however, may have created an appellate issue. Earlier in the day, they sent a note to the judge asking:

if they find the aggravating factors outweigh mitigating factors, can they find a life sentence for Peeler is enough?

The judge responded in the negative and the jury returned with a verdict of death. The statute says, in essence, that if the aggravating factors outweigh the mitigating factors, then the sentence is death. However, in State v. Rizzo [pdf], the Supreme Court held that (at page 242):

such instructions must impart to the jury that, in deciding that the aggravating factors outweigh the mitigating factors by any amount or degree, it is in effect deciding that death is the appropriate punishment in the case, and that it is persuaded of this beyond a reasonable doubt. 38

-Fn 38: This does not mean, however, that the jury must be given two separate and different questions to answer, namely, whether (1) the aggravating factors outweigh the mitigating factors, and (2) death is the appropriate penalty in the case. The second question is simply part of the first, and no separate jury interrogatory is required for the second. Neither § 53a-46a nor our state constitution requires such a separate question. See State v. Cobb, supra, 251 Conn. 452-56. We already require, however, as a matter of our supervisory role over the administration of criminal justice, that the jury be specifically instructed that its verdict on the weighing process will determine whether the defendant lives or dies. See State v. Breton, supra, 235 Conn. 249. Implicit in that instruction is that the jury must determine that death is the appropriate penalty. Thus, by imparting that consideration to the jury in its instructions, we merely make explicit what is already implicit. – end Fn38

In order to avoid any state constitutional question, therefore, and in order fully to meet the concerns regarding the reliability of the ultimate decision of life or death, we deem it appropriate for the jury to be reminded of the ultimate nature of its decision, namely, that, where the aggravating factors outweigh the mitigating factors, it is in effect deciding that death is the appropriate penalty in the case. Consequently, the jury must be instructed that it must be persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors and that, therefore, it is persuaded beyond a reasonable doubt that death is the appropriate punishment in the case.

It seems to me that what the court is saying is that by finding that the aggravating factors outweigh the mitigating factors, a jury necessarily finds that death is appropriate. That a jury cannot find the aggravating factors to outweigh the mitigating and yet not deem death appropriate.

In Peeler, it seems that the jury has done just that. This will get interesting.