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Lots and lots of interesting decisions this week, both from SCOTUS and the CT Supreme Court. For Kennedy coverage, the best place to go is Sex Crimes. Giles is the potentially more interesting decision for the criminal defense practitioner. I should have something up on Giles later today.

Then, of course, there’s the gun ban case, which will be announced today. SCOTUSblog will have up to the minute coverage.

Of even more interest to the CT practitioner should be yesterday’s decisions by the CT Supreme Court in Salamon (majority, concurrence, concurrence and dissent) and Sanseverino (majority and dissent).

Not only do these decisions make me look foolish, but they also overrule very recent precedent. In doing so, CT now comes in line with a majority of states (and common sense) by differentiating between kidnapping and unlawful restraint.

Until yesterday, any slight restraint on a victim during the commission of another felony could be charged as kidnapping - a B felony carrying a 20 year penalty. Now, the court has backtracked and said that in order to prove kidnapping there must be something more than just the restraint required to carry out the underlying felony.

Where this will affect practice is that prosecutors will no longer be able to charge every defendant with kidnapping, no matter how slight the restraint. Those defendants will have to be charged with unlawful restraint - a B misdemeanor.

The decisions are dense and very interesting, so I will have full posts on them as soon as I’ve had a chance to digest them.

For reasons that aren’t important, I was engaged in a discussion of Connecticut’s Supreme Court and the tone of recent opinions.

This led to a discussion of retired Justice Berdon, Gov. Lowell Weicker’s first nominee to the Supreme Court, and a prolific writer who wore his opinions on his sleeve (and pen). I then engaged in a quick survey of CT Supreme Court dissents since 2000 to see if the Court has changed since his departure.

First on Justice Berdon. His outspokenness was recognized as early as 18 months into his tenure on the highest court.

Justice Berdon, Mr. Weicker’s first nominee to the court, has emerged in the last 18 months as one of the most outspoken dissenting voices in its history, legal experts say, skewering the majority — often in disparaging terms — time and again. Of 147 cases Justice Berdon heard through last month, he issued his own separate dissenting opinion 39 times, an unprecedented number on this court.

“A couple members of the majority haven’t liked my choice of words,” Justice Berdon said in an interview. “But I’m going to say exactly what I think and what I feel should be said.”

Justice Berdon, a soft-spoken man who wears bow ties and so reveres Adlai Stevenson that he named his only son Peter Adlai Berdon, said he believes that there is an obligation to dissent in many cases. A cynical public must be shown that justice is being done, he said, and that issues are receiving a real public debate.

“It’s important that if you disagree with the majority, you don’t merely go along to tag along,” he said. “You have an obligation to put in your views and words so the the public can know what the other side is. It’s a constitutional obligation.”

And he did it with such bite:

One might debate, though, whether there is a constitutional requirement to criticize one’s colleagues with such obvious relish. In one dissent last year, for example, in a case challenging the method used in reapportioning State House and Senate seats, Justice Berdon began with the pronouncement that “today the majority trivializes the State Constititution,” and went on to disparage the majority’s “simplistic” reasoning and its “confusion and failure to understand the case that is before us today” and giving “at best, a cursory review” of the facts of the case.

Now let’s turn to the Court since his departure in 2000. Since then, in eight years, there have been only 55 dissents in criminal cases. Compare that to the 39 dissents in 18 months.

Of those 55 dissents, 19 were penned by Justice Katz. Also in that 8 year span, the Supreme Court heard (more than a few times), the appeals of Michael Ross, Richard Breton, Todd Rizzo, Ivo Colon, Russell Peeler and Courchesne, all capital appeals.

In the last three years (2006-2008), there have been only 8 dissents in criminal cases - and only 2 from 2007 onwards.

Back to Berdon. That NYTimes article I linked to above predicted a liberal turn to the CT Supreme Court:

Some students of the court say the early suggestions are that Justice Berdon may be pointing the way toward a stricter defense of civil rights, and that if other Weicker nominees follow that trend, Connecticut could emerge with one of the more liberal courts in the nation. Justice Berdon, who is 63, faces mandatory retirement in 1999, when he turns 70, but Justices Katz and Norcott, and Mr. Palmer, if he is appointed, could serve for decades.

And it may have been, during Justice Berdon’s tenure. But after his departure, it seems that the Court has returned to what it was prior to his appointment:

The Connecticut Supreme Court, the state’s highest appeals panel, has not been a place of flash and dazzle. Known until the 1960’s by the unfortunate formal title of the Supreme Court of Errors, the seven-member panel has been seen as a conservative, often technical-minded body that generally shuns sweeping constitutional pronouncements in favor of unanimous, bland consensus.

What does all of this mean? Well, very little. The dissents in the last eight years are varied: a “liberal” judge like Justice Katz has voted against defendants twice, whereas “conservative judges” Sullivan, Palmer and Zarella have voted for defendants 8-9 times.

Where it interests me (and possibly you) is in the capital arena. The Court’s decision in State v. Courchesne will mark the first time in a long, long time that the entire Supreme Court panel sat on a capital appeal with the constitutionality of the death penalty before it. Of further interest is that of the current 7 members, only 3 have ever expressed an opinion on capital punishment: Justices Katz and Norcott have frequently dissented and Justice Palmer has voted to uphold the death penalty once.

Justices Rogers, Vertefeuille, Zarella and Schaller have not yet had the opportunity to decide the constitutionality of the death penalty - and it certainly will be interesting to see where they stand and how they come down on the issues.

There are quite a few important and interesting issues pending before the Supreme Court right now and the next year or so will be quite telling as to how the Rogers Court has shaped up. Will it sink further into the abyss of congenial consensus or will a Justice Berdon emerge?

On that note, it is only fitting to leave you with this sad concluding paragraph from Justice Berdon:

This probably will be the last case before my retirement in which I will have the opportunity to express my views with respect to the dreadful punishment of death and related matters. Civilized nations have barred this horrible punishment. Some of our sister states have also banned death as a punishment, including all of the New England states except one –  Connecticut. I have pointed out in my dissents in State v. Cobb, 251 Conn. 285, 523, 743 A.2d 1 (1999), State v. Webb, 238 Conn. 389, 552-54, 680 A.2d 147 (1996), State v. Breton, 235 Conn. 206, 262, 663 A.2d 1026 (1995), and State v. Ross, 230 Conn. 183, 294, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), that the penalty of death fails to comport with contemporary standards of decency and that it constitutes cruel and unusual punishment in violation of our state constitution. I leave this court heartbroken because, as a result of one vote, 24 Connecticut is not among those enlightened states and nations to put an end to the death penalty. But those who would have it must live with this stain of blood. The determination of the constitutionality of the death penalty is not in the control of the legislature but, rather, in this court and the majority has failed to recognize its unconstitutionality.

State v. Griffin, 251 Conn. 671, 741-42 (1999).

John Holdridge, who argued State v. Courchesne last month before the (CT) Supreme Court, has this opinion piece at HuffPo, arguing that the number of exonerations from death row make a strong case for a moratorium on the death penalty.

One of the primary reasons is the recent explosion in the number of death-row exonerations, which the Death Penalty Information Center (DPIC) now puts at 127. In response, some proponents of capital punishment have taken to arguing that many of the freed death-row prisoners are not in fact innocent.

The rest of the article is a good read (or riddled with inaccuracies, if you’re a proponent), but this last sentence piqued my curiosity. What do you consider to be “innocence”, when talking about exonerations? Do you restrict this definition to factual innocence or should it include legal innocence as well?

The DPIC number comes from the inclusive definition of “innocence”. I take factual innocence to mean that there is no credible evidence of an individual’s guilt. How is this different from legal innocence and why is such a distinction necessary or even worthwhile?

In 2005 testimony before Congress, [Oregon prosecutor Joshua] Marquis submitted a document [PDF ]which denied that my former client, Michael Ray Graham, and his co-defendant Albert Burrell were released from Louisiana’s death row because they were innocent. The author of the document claimed that they were released “only because there was insufficient evidence of guilt.” In fact, Graham and Burrell were released after the Louisiana Attorney General’s Office informed a court that there was “a total lack of credible evidence linking Graham and/or Burrell to the crime.”

So, what do you think?

The Georgia Supreme Court issued a 4-3 opinion today, essentially affirming Troy Davis’ conviction. Troy Davis, you will remember, was granted a stay of execution by the Georgia Board of Parole and received a letter of support from The Pope.

EyeID explains:

According to the court, statements by a slew of witnesses who claimed that they had lied at trial under police pressure were insufficient to support a finding that a different result would likely be reached if the case were subjected to a new trial — in a case in which the only evidence presented was the apparently coerced testimony of the same witnesses. As a result of this inexplicable finding, the Georgia Supreme Court refused to stand in the way of the execution of a man who insists he is, and whom many believe to be, innocent.

Here’s a sampling of the recantations:

I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night.
[…]
After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read.

and another:

I nodded and repeated what they said, whether it was true or not…. I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail.

It really is remarkable that the Ga. Supreme Court did not find that these recantations would result in a different outcome if Davis were granted a new trial.

An absolutely mind-boggling and repulsive decision.

Two separate news items of note on the death penalty in Connecticut today. The first is a hearing in the judiciary committee on a bill that sets absurd time limits on the filing of appeals and habeas corpus petitions. S.B. 320 is a resurrection of an almost identical bill that failed in the last legislative session. The bill would require both the defendant and the state to file its briefs within 4 months of the imposition of the sentence and it would require the Supreme Court to schedule oral argument no later than 6 months from the date of the imposition of the sentence. These time limits are absurd and arbitrary and unworkable. There is no way that all issues that need to be raised in capital cases can be raised in two months.

Further, it requires all habeas corpus petitions in capital cases to be filed within 180 days (or at the same time that oral argument is scheduled) of the imposition of the sentence and a hearing on such a habeas petition shall be held within 180 days of the filing of such a petition.

However, a subsequent petition will not be barred if (1) the facts underlying the claim were unknown to the defendant or the defendant’s attorney and could not have been ascertained by the exercise of due diligence prior to the filing of the earlier application, and (2) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would have reasonably led the original trier of fact to have either found the defendant not guilty or not sentence the defendant to death. The court shall hold a hearing on such subsequent application not later than one hundred eighty days after the filing of such application.

Written testimony submitted to the Judiciary Committee is available here. This bill is opposed by the ACLU, the Public Defender’s Office and the State’s Attorney’s Office.

The second news item was a discussion on the state of the death penalty in Connecticut on NPR’s “Where We Live“. The guests include Waterbury State’s Attorney John Connelly, Yale Prof. John Donahue, who conducted the disparity study, Helen Williams - the mother of Richard Reynolds’ victim, Robert Nave - the director of the Connecticut Network to Abolish the Death Penalty, New Jersey Senator Christopher Bateman and State Rep. Michael Lawlor.

Connecticut is one of 2 states in New England that still has a death penalty. New Hampshire is the other—but recently that state has created a commission to study the process including whether the death penalty actually deters crime, just as New Jersey did prior to its abolition of the death penalty.

The discussion included the cost of the death penalty vis-a-vis life imprisonment, its deterrence value and who the focus is on. Quotes from citizens include comments about the fallibility of the justice system as demonstrated by the DNA exonerations and whether we should take that risk with the one truly irreversible punishment. It is an hour long, but definitely worth listening to.

Connelly and even the host keep trumpeting the “fact” that the majority of citizens are in favor of the death penalty. Lawlor mentions that when CT citizens are given the choice between the death penalty and life imprisonment, the opinions are more even.

Then the discussion turns to the hearing scheduled in the judiciary committee and Connelly characterizes it as appeals and habeas corpus petitions filed “ad nauseam“. Where he gets this, I do not know, but apparently NPR didn’t see it fit to have anyone from the defense bar to mention that there is a statutory right to a direct appeal and a Constitutional right to habeas corpus.

Lawlor then says it like it is: This is a political issue and whether abolition proceeds depends on opinion polls and what people think about it. He says they will look to New Jersey’s upcoming elections to see whether the abolition will be an issue there.

Courtesy of NPR, the audio is available below.

 

 Standard Podcast [51:59m]: Play Now | Play in Popup

It’s that time again! The docket has been released, so it’s time to preview the upcoming cases at the Connecticut Supreme Court. It’s no wonder that they sent me a notice saying: “Attorney Trumpet [yes, that's my last name], we regret to inform you that yours was one of the many qualified petitions for certification we received and we have only so many openings, so we will be unable to extend you an invitation to speak before us.”

Anyway, on to the good stuff - and believe you me, there is LOTS of that! There are Constitutional challenges to the validity of statutes and the big Courchesne death penalty appeal.

March 12 @ 10:00am - State v. Fernando A: The certified issue is whether the defendant was entitled to an evidentiary hearing on a protective order. Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, “the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” On day one, the defendant requested this hearing. The court said it was too busy, so the hearing would be held four days later and issued a protective order. Four days later, another judge said that he had been heard for the purposes of this section and no evidentiary hearing would be held. The defendant also claims that the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.

March 13 @ 11:00am - State v. Carrasquillo: This is an Eight Amendment challenge to the application of the murder statute to juveniles. The defendant argues that § 46b-127 (a) and General Statutes § 53a-35a (2) violate the cruel and unusual punishment clause because they automatically subject all fourteen and fifteen year old children charged with murder to the mandatory minimum sentence of twenty-five years of incarceration without any consideration of mitigating factors regarding their juvenile status. Relying on Roper v. Simmons, 543 U.S. 551 (2005), he argues that even juveniles who commit serious crimes cannot with reliability be classified among the worst offenders because (1) a lack of maturity and an underdeveloped sense of responsibility are found in juveniles more often than in adults; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures than adults; and (3) the character of a juvenile is not as well formed as that of an adult. Further, the prosecutor referenced during closing argument, over objection, “evidence” of the defendant’s motive that was not adduced at trial.

March 18 @ all day - State v. Courchesne: Oh boy. Lots and lots of stuff. Whether an unborn child is a “person”. Whether the defendant intended to murder the unborn child. During the trial stage, the trial court ruled that the aggravating factor - killing in an especially depraved, heinous, cruel manner - had to be proven as to both victims. State took an interlocutory appeal. Supreme Court held that it had to prove that as to only one. It also discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous. As a direct result of that decision, the legislature passed Section 1-2z, stating that you have to look at the plain meaning of the language first.

The dp claims are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a “person” and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her? (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant’s motion to impose a life sentence without release where the defendant argues that Connecticut’s capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was “the product of passion, prejudice or any other arbitrary factor”? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense’s being “especially heinous, cruel or depraved” under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?

That should be a fun hearing.

There are two standby cases:

Bryant v. Commissioner: IAC claim on the grounds that trial counsel did not call 4 credible witnesses who would testify that the victim died not of a beating, which was the theory at trial, but of a gunshot wound. Habeas corpus court granted the petition and ordered a new trial. Appellate Court reversed, holding that trial counsel’s decision not to call the witnesses was a tactical decision. Supreme Court will review.

State v. Boyle: An issue that is becoming prevalent nationwide. Defendant was convicted of a DUI and sentenced to probation. Probation moved to modify conditions and wanted to include sex offender evaluation and treatment. This request was based on the probation officer’s discovery that the defendant was convicted of sexual assault in 1997, that he was on the sex offender registry and that a parole board evaluation indicated that his risk of recidivism for sexual assault was high and his level of dangerousness was severe. At the hearing on the motion to modify, the probation officer testified that it is the policy of the office of adult probation to request that a probationer abide by sex offender conditions of probation when the probationer has a prior sexual offense conviction and is still on the sex offender registry. The probation officer further testified that he believed that the added condition of probation was necessary because the use of alcohol was a factor in the sexual assault case. The trial court granted the motion. The Appellate Court reversed, holding that sex offender treatment was not rationally related to the purpose of rehabilitation for a DUI conviction. Supreme Court will reverse review.

Update: Here’s a copy

CT death row inmates’ racial and geographical disparity challenge to the death penalty survived a motion to dismiss. The challenge was made under provisions of both the Connecticut and Federal Constitutions. That might be what saved it (among other things).

In his decision, Judge Stanley T. Fuger Jr. said Connecticut’s constitution affords defendants greater legal rights than the U.S. Constitution, so, therefore, they have the right to present the kind of systemwide bias evidence that the 1987 ruling barred.

“Connecticut is not closing its eyes to this claim as most state courts have done,” said David Baldus, a professor at the University of Iowa College of Law who has studied bias in the death penalty in four states and in the city of Philadelphia. “So that’s why this is an unusual case. Unusual and important.”

This is a serious issue and perhaps it wouldn’t have been the wisest thing to dismiss the claims, as Judge Fuger recognizes:

“In the instant case, the petitioners allege that they are to be deprived of their lives in a proceeding that has been tainted by the imposition of improper racial determinations,” Fuger wrote in his decision. “The stakes are, therefore, extraordinarily high for these petitioners and merit the closest of scrutiny before throwing the complaint out of court without any opportunity to provide the validity of the claims.”

Previous coverage here, here, here and here.

CT’s death row might have inmate number 10 very soon. A jury today recommended that Lazale Ashby receive the death penalty. Judge Espinosa will decide on Monday whether to formally enter the verdict of death.

Interestingly, just two days ago, the jury said they were deadlocked.

In the midst of a massive snowstorm yesterday, the unusually situated DP hearing concluded yesterday at Northern CI - the State’s only maximum security prison where death row is housed. The arguments were pretty standard: the State moved to dismiss arguing that these habeas petitions have languished for a while, whining abuse of process. The defense countered with “these are death cases, studies take time”.

Much was made of the location of the hearing, but it used to be the norm back in the day. What interests me and I’m sure will interest some of my readers is this graphic in the Courant, which seems to have all the relevant data (if they would only please upload a real copy of the study and not the bizarre hacked 7-page version).

So, as you can see, black and white defendants are charged with a capital felony about the same, but when it comes to a white victim, there is a significant disparity (about 21%). When there is a white victim, as opposed to a black victim, the death penalty is sought 19% more.

SL & P links us to this NYT article which can’t even correctly report how many people CT has executed in the last 30 years. It says none, Michael Ross says hello.

The bottom line: Will Judge Fuger grant this Motion to Dismiss? I d0ubt it, but I wouldn’t be surprised.

Only now is word leaking about the substance of the death penalty challenge that is the subject of tomorrow’s hearing [previous post here]. The seven inmates that are party to the challenge are relying on a study [pdf] by Yale Law School professor, which finds that there is racial disparity and arbitrariness in the way the death penalty is charged and sought in Connecticut.

Yale Law School professor John J. Donohue III, who oversaw the study, said one of the most surprising findings is that the death penalty is often not sought for crimes that are more violent and disturbing than ones where lethal injection is pursued.

“There was basically no rational system to explain who got the death penalty,” Donohue said Tuesday. “It really is about as random a process as you can possibly construct.”

Over the past year, researchers reviewed 207 murder cases dating back to the early 1970s that were eligible for death penalty prosecution. Donohue said 60 percent of the defendants were minorities and 40 percent were white, numbers that conflict with the percentages in the general population.

Among the other findings in Donohue’s 128-page report:

• Black defendants receive death sentences at three times the rate of white defendants in cases where the victims were white.
• Killers of white victims are treated more severely than people who kill minorities, when it comes time to decide the charges.
• Minorities who kill whites receive death sentences at higher rates than minorities who kill minorities.

Of the inmates on death row, four are black, three are white and two are Hispanic.

I’m looking for a copy of this study. If someone has it, please let me know. Here it is.

I’ve said this before and what I heard on the radio today re-affirmed this belief. Sometimes, I think they don’t know what the heck they’re talking about.

One of the topics of discussion on Ray and Diane’s morning show today was tomorrow’s death penalty constitutionality hearings. Right off the bat, they didn’t know when the hearing was being conducted. Diane kept talking about how if she was free this afternoon, she’d go watch. I hope she didn’t. Because it’s tomorrow.

Then, the central theme of their rant was how anyone could think that those on CT’s death row weren’t deserving of the death penalty. Ray decided to read (and re-read) the convictions of those on death row and the reasons for them being there (shot a cop, killed a pregnant woman, etc.).

Yes, I understand. These people are convicted of heinous crimes. I don’t think anyone doubts that the crimes were extremely gruesome and depraved.

But that isn’t the question. Therein lies the problem. It’s not that complicated really, and if you’re going to rant about it for over 30 minutes, then at least make the effort to find out what the claim really is.

Miranda, upon learning that prosecutors in New London had upgraded (upgraded - like it’s a good thing) charges against Craig Sadosky for the death of his girlfriend’s infant to capital felony, insightfully asked in her usual way if the death penalty geographical disparity hearings conducted in the Jesse Campbell case might have the opposite effect.

Instead of scrutiny on the application of the death penalty and particularly on the Waterbury prosecutor’s office, what if the hearings had the effect of gentle pressure being placed on other prosecutors in the State. What if they were questioned, in turn, why they did not seek the death penalty as often as John Connelly?

Certainly, if the death penalty were sought more frequently in other jurisdictions, the geographic challenge goes away. Let’s hope this is not the case.

In other DP news, Russell Peeler was officially sentenced to death today [most recent post here]. He might be the only man on CT’s death row to profess his innocence. The appeal will certainly be interesting, not least of all for the question the jury asked during deliberations. Details in the post linked above.

Here’s the full list:

Jessie Campbell III, 27

Robert Breton, 60

Sedrick “Ricky” Cobb, 45

Robert Courchesne, 50

Richard Reynolds, 37

Daniel Webb, 45

Eduardo Santiago, 27

Todd Rizzo, 28

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.

Yesterday the penalty phase hearing in the capital trial of Russell Peeler got underway in Bridgeport Superior Court. This is his second penalty phase hearing after the first one ended with a hung jury. Already there’s some drama. Two jurors asked to be dismissed after the Connecticut Post mentioned their names in a story over the weekend.

Defense attorney Erskine McIntosh moved for a mistrial, saying he was concerned about the possibility of future problems with jurors. “I just don’t think it’s worth that type of risk, particularly when this man’s life is on the line,” McIntosh said.

Judge Robert Devlin Jr. denied the request. “I detected no hesitation in their ability to be up to the task,” he said of the remaining jurors.

Peeler’s hearing is one of two set for this month. Lazale Ashby’s hearing in Hartford is also scheduled for this month.