It’s an opinionated week!

Mike, it’s a very good question. While the exact forum for doing anything is unclear (motion to correct, habeas), Justice Zarella’s dissent makes clear what should happen. From footnote 1 of the dissent in Sanseverino:

The majority observes that “[w]e may apply the rule announced in Salamon to the present case because this court long has stated that a rule enunciated in a case presumptively applies retroactively to pending cases.” Footnote 11 of the majority opinion. I agree with the majority that retroactive application of Salamon to this case is appropriate but would elaborate on the majority’s statement by noting that we have recognized that judicial construction of a statute can operate like an ex post facto law and thus violate a criminal defendant’s due process right to fair warning as to what conduct is prohibited. See, e.g., State v. James G., 268 Conn. 382, 409, 844 A.2d 810 (2004); State v. Cobb, 251 Conn. 285, 436, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). Because our decision in Salamon purports to narrow the potential conduct encompassed by our kidnapping statutes in situations in which a defendant restrains a victim solely to commit another crime, this new construction does not operate to “disadvantage the offender affected by it . . . by altering the definition of criminal conduct” (Internal quotation marks omitted.) State v. James G., supra, 409. Therefore, retroactive application of this court’s new construction of the crime of kidnapping is not constitutionally barred.

Typically, decisions are not applied retroactively to cases that have been already decided, but that is usually a rule applied when the new decision is disadvantageous to defendants.

Mr. Luurtsma, since his case was overruled, might have redress, I suspect, as might others convicted in that 6 year period.

I will probably elaborate on this when I get around to posting on Salamon and Sanseverino – hopefully sometime this weekend.