Death Penalty Repeal Changes The Legal Landscape

By: Alaine Griffin
The Hartford Courant
Friday, April 13, 2012

When lawyers for death row inmate Todd Rizzo urged the state Supreme Court to throw out his death sentence in 2010, they pointed to what had happened at the state Capitol a year earlier to make their argument that the punishment should be tossed on constitutional grounds.

In 2009, the General Assembly voted to repeal the death penalty. But then-Gov. M. Jodi Rell vetoed the bill.

Public defenders for Rizzo, convicted of the 1997 fatal bludgeoning of 13-year-old Stanley Edwards IV of Waterbury, asked the justices: How could the court uphold Rizzo's death sentence, or any death sentence for that matter, when legislators opposed the death penalty? Shouldn't the court consider how law and policy have changed in the state on the issue of the death penalty?

These same questions likely will redouble the push by death row inmates to challenge their sentences on constitutional grounds, now that legislators have voted to abolish the death penalty in Connecticut and Gov. Dannel P. Malloy has pledged to sign the repeal bill.

Though the bill calls for an end to the death penalty as punishment for future capital crimes, the 11 death row inmates already facing execution in Connecticut surely will seize on the unusual prospective clause in the legislation as a life raft in making their arguments. They will want to be heard on why the repeal should apply to them retroactively.

Trial To Start In June

The timing of their challenges could come as prosecutors and defense lawyers gear up for the upcoming and long-awaited habeas corpus trial on claims by 10 death row inmates that there is racial, ethnic and geographic disparity in the way the death penalty is administered in Connecticut.

Defense lawyers said that if the death row inmates were to prevail in the habeas trial — scheduled to begin June 5 in Superior Court in Rockville — those once facing execution would have their sentences converted to life in prison without the possibility of release.

During the trial, inmates are expected to introduce as evidence a statistical study of death penalty cases that defense attorneys will argue shows that the application of the death penalty in Connecticut is arbitrary. Ten of the 11 men on death row are petitioners in the case. Russell Peeler Jr., convicted of ordering the 1999 killing of 8-year-old Leroy "B.J." Brown Jr. and his mother, Karen Clarke, in Bridgeport, is not part of the case. Sedrick "Ricky" Cobb, convicted of the December 1989 kidnapping, rape and murder of 23-year-old Julia Ashe of Watertown, first raised the racial disparity claim in his 1994 appeal of his murder conviction.

Lawyers for the death row inmates involved in the habeas trial moved to have the June case continued, but officials said this week that the case is expected to move forward.

"It's scheduled and we're getting ready," said Chief State's Attorney Kevin T. Kane.

Though prosecutors and several lawyers with clients on death row declined to talk publicly about what legal steps those facing execution might take, saying they wanted to hold off on commenting until the bill is signed into law, they acknowledge that the repeal could be brought up before Superior Court Judge Samuel J. Sferrazza, the judge slated to hear the racial disparity case.

Avenues For Argument

A death row inmate could file a motion for declaratory judgment or move to amend a habeas corpus petition already filed with the court. And arguments similar to those heard two years ago in the Rizzo case could take on new meaning as the court grapples with whether to retroactively apply the repeal of the death penalty.

"It will be an issue raised quickly, but I am not sure it will be decided quickly," said Richard Dieter, executive director of the Washington D.C.-based Death Penalty Information Center.

The state Supreme Court rejected Rizzo's arguments that the death penalty violates the state Constitution and has upheld the constitutionality of the death penalty in other cases, including Daniel Webb, who was sent to death row in 1991 after his conviction for murdering bank vice president Diane Gellenbeck in Hartford, and serial killer Michael Ross, who was executed in 2005.

But that history will not stop defense lawyers from continuing to pursue life sentences for their condemned clients, particularly now with the prospective repeal, even as death row inmates in Connecticut remain in various stages of appeals on other issues, Dieter and other legal experts say.

"There are constitutional principles involved that might make a court say that it would be cruel and unusual under the Eighth Amendment to execute people in such situations," Dieter said. "It's something to try."

William V. Dunlap, who teaches constitutional law at the Quinnipiac University School of Law, said the arguments likely to be raised by death-row inmates — that capital punishment violates due process and equal protection clauses of the state and U.S. constitutions and the Eighth Amendment prohibition against "cruel and unusal punishment" — have merit.

But Dunlap and other legal experts say they do not think those arguments would help death-row inmates with the issue of the repeal. The intent of the Connecticut legislature is clear — the 11 men already convicted and sentenced to death still should be executed — and broad constitutional rulings that contradict the intent of the legislature are the last thing the courts want to do, they say.

The bill replaces the death penalty with a sentence of life in prison without the possibility of release. Capital punishment would be abolished only for those convicted of capital offenses in the future. Of five states that abolished the death penalty in the past five years, Connecticut and New Mexico are the only states with a prospective repeal.

"I would not expect the court to overrule the legislature and abolish the death penalty retroactively on the basis of those arguments," Dunlap said. "The death penalty has been litigated and so often it has been found to be constitutional."

Kane, however, told members of the state's judiciary committee in March that "there is an extensive body of existing law that suggests the obvious argument that it would be untenable as a matter of constitutional law or public policy to execute someone today who could not be executed for committing the same conduct in the future." He told the committee that enforcing death sentences would be "all the more difficult once this body adopts a policy eliminating the punishment."

This week, Kane declined to further speculate on the impact of the repeal and said he and other prosecutors would need to "see the final language" in the law that is ultimately enacted before commenting.

For now, legal experts predict a possible short-term increase in work for the chief state's attorney's office appellate bureau and for defense lawyers on pending appeals and potential new filings about the prospective repeal by those on death row whose direct appeals have been completed.

And those expected additional filings likely will mean the state will move at an even slower pace toward the next execution. 

Three Men In New Mexico

Dieter said New Mexico legislators passed a prospective repeal of that state's death penalty in 2009. Three years later, appeals are still pending for Timothy Allen and Robert Fry, the two men who remain on New Mexico's death row, he said.

However, Dieter said, the New Mexico Supreme Court last year did weigh in on the case of a third man, Michael Paul Astorga, who was convicted of killing a sheriff's deputy, a capital felony, nearly a year after New Mexico's death penalty repeal took effect. He still faces a possible death sentence because the crime occurred before New Mexico abolished its death penalty. Attorneys for Astorga argued against execution since anyone who committed the same crime in the future would be punished to life in prison. The justices rejected their arguments.

An April 9 Associated Press report said jury selection in the sentencing phase of Astorga's trial is underway, and jurors will be asked to sentence him to either life in prison or death even though the death penalty has been repealed in New Mexico.

The last person to be executed in Connecticut was Ross and it occurred only after Ross waged a legal fight to end his appeals and to have the sentence imposed. Before Ross, the last execution in Connecticut was in 1960, when the state electrocuted Joseph "Mad Dog" Taborsky for murdering six people during a robbery spree.