State v. Santiago ( 2015 )

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STATE v. SANTIAGO—THIRD DISSENT
ESPINOSA, J., dissenting. I agree with and join Jus-
tice Zarella’s dissenting opinion, and generally agree
with the dissenting opinion of Chief Justice Rogers.
Both of those opinions thoroughly explain the myriad
flaws in the majority’s rationale, and make clear that
the majority’s conclusion that the passage of No. 12-5
of the 2012 Public Acts (P.A. 12-5) has rendered the
death penalty unconstitutional is without basis. I write
separately to highlight the majority opinion’s apparent
disregard of both the people of this state and their
elected representatives. The majority’s decision ignores
the will of the people of Connecticut by abolishing the
death penalty in a violation of the separation of powers,
and essentially passes an amendment to P.A. 12-5 by a
vote of four, abolishing that portion of the act that
preserved the penalty of death for the eleven men cur-
rently on death row. This type of decision making is
reminiscent of the same type of judicial activism that
I spoke out against in my dissent in Lapointe v. Com-
missioner of Correction, 316 Conn. 225, 439, 112 A.3d
1 (2015), and, just as in that decision, today’s majority
decision ‘‘reflects a complete misunderstanding of the
proper role that this court should play within the rule
of law.’’ Id.
This court has developed an apparent practice of
exceeding the constitutional bounds of its power in
order to impose its personal notion of what justice and
fairness require. In Lapointe, I expressed my strong
disagreement with the majority’s decision to abandon
our role as an impartial reviewing court by acting as
an advocate for the petitioner in that case and by
usurping the role of the trial court in defiance of the
constitutional limits on our power. Id. I also expressed
concern that the decision in Lapointe marked a growing
tendency by this court to go beyond the great power
entrusted to it, a trend that traces its more recent roots
to this court’s decision in Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc.,
311 Conn. 123, 161–62, 84 A.3d 840 (2014). Lapointe v.
Commissioner of Correction, supra, 316 Conn. 452. In
Lapointe, I questioned whether the clouds cast over
this court by its abuse of our supervisory authority
in Blumberg Associates Worldwide, Inc. and Lapointe
were not isolated squalls, but portended an approaching
storm—one that would wash away any remaining pre-
tense that this court is guided by the rule of law. See
id., 440–41.
Today, that perfect storm has arrived. Today’s major-
ity continues this court’s unwarranted and unconstitu-
tional expansion of its power, this time by usurping
the role of our legislature, undermining the rule of the
people and legislating from the bench in violation of
the separation of powers. Using the guise of a contem-
porary standards analysis, today’s majority tosses aside
the moral standards held by the people of this state, as
expressed through their legislature and their juries, and
it imposes its own beliefs about what punishment
should be appropriate for the worst criminal offenders
in this state. In effect, the majority elevates itself to the
ultimate political branch in our democracy with the
power to impose its policies on the people—a result
that is especially paradoxical when one considers that
none of the members of this court were put here through
a popular election. Importantly, however, because the
majority opinion has grounded its decision on the con-
clusion, albeit incorrect, that the death penalty no
longer comports with evolving standards of decency,
the legislature has the power to reenact the death pen-
alty. To be clear, after today’s decision, the legislature
is free to scrap the prospective repeal or adopt different
legislation reinstating or preserving the use of the death
penalty in future cases. As the majority acknowledges,
legislative enactments are ‘‘the clearest and most reli-
able objective evidence of contemporary values . . . .’’
Atkins v. Virginia, 536 U.S. 304, 312, 122 S. Ct. 2242,
153 L. Ed. 2d 335 (2002). As the majority recognizes,
there is nothing that requires that the standards of
decency evolve only in one direction.
Before I proceed to my analysis, I offer the following
observation. The question of whether the state should
be able to execute its citizens for committing crimes
held by society to be the most egregious entails thorny
and essential legal, political, ethical and religious issues.
It is unsurprising, therefore, that the death penalty is
one of those issues about which people hold strong
beliefs. The issue is necessarily entangled with the
world view that one holds. Of course, we come to the
bench not as automatons, but as persons, with fully
developed world views, shaped by our experience and
character. I am not suggesting that we must, or even
should, leave those experiences at the door when we
enter the courtroom. As United States Supreme Court
Justice Sonia Sotomayor has eloquently acknowledged,
the experience of a Latina jurist brings a different and
valuable perspective to judicial decision making. S.
Sotomayor, ‘‘A Latina Judge’s Voice,’’ 13 Berkeley La
Raza L. Rev. 87, 91–92 (2002). The same can be said of
the various backgrounds of my esteemed colleagues—
each of us brings the value of our diverse and individual
experiences to the work of the court. At the same time,
of course, we are all bound by the rule of law. The line
that we must walk as judges, therefore, is a fine one.
We bring our individual perspectives to each decision,
but our personal world views must yield to the rule of
law when the two conflict. It is much more challenging
to walk that line when the question is one that engen-
ders the level of passion inspired by the question of
capital punishment. The fundamental failure of the
majority is that it has failed to walk the line.
In The Federalist No. 78, Alexander Hamilton
described the role of the judiciary in relation to the other
branches of government. In his famous essay describing
the judiciary as the ‘‘least dangerous’’ of the three
branches, Hamilton summarized its role in the following
statement: ‘‘It may truly be said to have neither FORCE
nor WILL, but merely judgment . . . .’’ The Federalist
No. 78, p. 356 (Alexander Hamilton) (Hallowell: Mas-
ters, Smith & Co. 1857). Force lies in the role of the
executive; will properly is the function of the legislature.
That is, the legislature is the branch of government that
properly reflects and carries out the will of the people.
The judiciary’s role cannot be to reflect the will of the
people or the will of individual judges—its role is to
apply the rule of law and issue judgment. In the content
of today’s decision, the majority ignores its proper role
and seeks to usurp that of the legislature by carrying
out a will—clearly, however, the will that the majority
imposes is not the will of the people, but the will of
the four unelected justices in the majority.
There is a good reason for Hamilton’s view that the
role of the judiciary should be one that is restricted to
judgment and divorced from will. If the legislators fail
to carry out that will, the people have the power to
vote them out of office. As the Chief Justice observes
in her dissent; see footnote 31 of the Chief Justice’s
dissenting opinion; at the time that P.A. 12-5 was passed,
a Quinnipiac University poll revealed that Connecticut
voters supported the death penalty by a huge margin,
with 62 percent in favor and only 30 percent opposed.
See Quinnipiac University, Release Detail (April 25,
2012), question 20, available at http://www.quinnipiac
.edu/news-and-events/Quinnipiac-university-poll/con-
necticut/release-detail?ReleaseID=1739 (last visited
July 16, 2015). I also note that that same 2012 poll
revealed that 37 percent of Connecticut voters said that
a legislator’s death penalty vote would be ‘‘[e]xtremely
important’’ or ‘‘[v]ery important’’ to their vote in the
upcoming election that year, and that most voters would
be less likely to vote for a legislator who had voted to
abolish the death penalty. See id., question 26. Obvi-
ously, the legislators who enacted P.A. 12-5 realized
that popular support for abolishing the death penalty
simply did not exist, hence the partial repeal. No such
check exists for this court. The four justices in the
majority do not need to answer to the voters for their
decision to dismiss the will of the people, and impose
the majority’s will on them.
The judicial power of interpretation is one of this
court’s greatest powers. As United States Supreme
Court Chief Justice John Marshall explained, ‘‘[i]t is
emphatically the province and duty of the judicial
department to say what the law is.’’ Marbury v. Madi-
son, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803). We
say what the law means. That is undeniably a great
power. It is not, however, a power without limits.
Although we interpret it, we do not make the law—that
function, as explained by Hamilton in The Federalist No.
78, is emphatically the province of the legislature. The
Federalist No. 78, supra, p. 356.
The line between interpretation and legislation is the
reason that, when a dispute brought to this court
requires us to determine the constitutionality of an act
by another branch of government, we must proceed
cautiously; our forays into constitutional questions
must give due respect to the decisions of our coordinate
branches of government. Our analysis of the constitu-
tionality of a law, accordingly, begins with the strong
presumption that the law is valid. Kerrigan v. Commis-
sioner of Public Health, 289 Conn. 135, 155, 957 A.2d
407 (2008). This presumption is dispositive unless and
until the party challenging the act shows beyond a rea-
sonable doubt that it violates the mandates in our con-
stitution. Id. We must indulge in every presumption in
favor of sustaining its validity and we may not disregard
a challenged act unless its invalidity is clear. State v.
Matos, 240 Conn. 743, 748, 694 A.2d 775 (1997). If there
is any reasonable doubt about whether a challenged
act violates our constitution, we must uphold its validity
and apply it to the case before us. See id.
To be sure, we do not submit entirely to the legislature
when considering whether a punishment is cruel and
unusual, and we must review the validity of the chal-
lenged punishment in light of contemporary standards
of decency. State v. Rizzo, 303 Conn. 71, 197, 31 A.3d
1094 (2011), cert. denied, U.S. , 133 S. Ct. 133,
184 L. Ed. 2d 64 (2012). The standards of decency that
we must consider, however, are those of the people of
this state, not the judges of this court; our constitution
does not give us a license to impose our own concep-
tions of decency on the people. Our cases recognize,
as they must, that the legislature’s judgments are the
‘‘clearest and most reliable objective evidence of con-
temporary values . . . .’’ (Internal quotation marks
omitted.) Id., 191. Shaping our society’s response to
such a mutable problem as crime is quintessentially a
legislative function, so our constitution properly
‘‘assigns to the legislature the power to enact laws defin-
ing crimes and fixing the degree and method of punish-
ment . . . .’’ State v. Darden, 171 Conn. 677, 679–80,
372 A.2d 99 (1976).
The democratically elected legislature is far better
suited to evaluate and give effect to the social and moral
choices of our people than a group of appointed judges
who are largely insulated from public contact and scru-
tiny. Reasonable people may disagree about the wisdom
of using capital punishment, and ‘‘the value of [that
sanction], and its contribution to acceptable penologi-
cal goals, typically is a complex factual issue’’ primarily
for the legislature to resolve. (Internal quotation marks
omitted.) State v. Rizzo, supra, 303 Conn. 197. We must,
therefore, exercise our constitutional duty with ‘‘ ‘great
restraint’ ’’ and may interfere with the democratic pro-
cess only when there are compelling reasons to con-
clude that our criminal statutes are far out of step with
contemporary mores. Id.
Of course, because there are no such compelling rea-
sons to cast aside the legislature’s recent decision to
retain capital punishment for certain offenders, as dem-
onstrated by the opinions of the Chief Justice and Jus-
tice Zarella, the majority applies nothing resembling
this deferential framework. In the majority’s view, the
issue is simple. Despite indicators that capital punish-
ment remains a decent and deserved form of punish-
ment for certain offenders, including those already
under a capital sentence, the majority’s own extra-
record fact-finding leads it to an extraordinary and
inflammatory conclusion, that those who support capi-
tal punishment are, at best, enemies of modern decency.
Specifically, the majority cites approvingly to a report
that states that ‘‘executions are overwhelmingly con-
fined to the South (and states bordering the South),
the very same jurisdictions that were last to abandon
slavery and segregation, and that were most resistant
to the federal enforcement of civil rights norms.’’ C.
Steiker & J. Steiker, Report to the American Law Insti-
tute Concerning Capital Punishment, in A.L.I., Report
of the Council to the Membership of The American Law
Institute on the Matter of the Death Penalty (April 15,
2009) annex B, p. 29; see footnote 86 of the majority
opinion. In this single statement, the majority suggests
that Southerners are racists, and so are those who
support the death penalty. Painting Southerners and
supporters of the death penalty with the broad brush
of racism could appear to some to be racist itself and
reinforces stereotypes that have no foundation in fact
or law. It is one thing to read about racism and believe
that one understands it; it is an entirely different matter
to live through it.
Indeed, the majority’s insinuations about the moral
values of those citizens in this state and elsewhere who
continue to support capital punishment not only inap-
propriately stereotype those who support the death pen-
alty, but they also miss the point that evaluating the
current standards of decency is a complex task that
cannot be accomplished by way of sweeping generaliza-
tions. The most that can be said in favor of finding
capital punishment to be unconstitutionally cruel is that
contemporary sentiment on the topic is mixed.
Although there are citizens in our state who oppose
capital punishment, there are certainly many fair-
minded citizens who find it to be an appropriate punish-
ment, at least for certain offenders, a sentiment
reflected in the very recent judgment of our legislature
and the decisions of our juries. Given the lack of any
real consensus on the matter, this would be a fitting
issue to leave to the people to resolve, at least until a
consensus on contemporary standards truly arises.
Rather than acknowledging that contemporary stan-
dards are mixed, the majority scours the legislative
record and extra-record materials to suggest that there
is a statewide consensus that the death penalty does
not comport with standards of decency. The majority’s
decision to exceed this court’s limited power appears
to be designed to eliminate capital punishment in this
state. Rather than faithfully applying a true contempo-
rary standards analysis, the majority applies only the
appearance of such an analysis, selecting for consider-
ation only those aspects of each factor that support
its conclusion.
The majority also flouts the limits imposed by our
constitution, engages in fact-finding limited to dis-
covering only those facts supporting its conclusion, and
ignores the import of facts that do not support its view.
At every step in its analysis, the majority’s selective
review of the facts leads it to deliberately choose an
explanation that undermines, rather than supports, the
validity of the legislature’s judgment that capital punish-
ment remains a valid and appropriate punishment for
those who committed their crimes prior to the enact-
ment of P.A. 12-5. As the Chief Justice points out, the
majority relies on floor speeches by a handful of legisla-
tors during the debate on P.A. 12-5 to find a legislative
consensus that capital punishment is immoral, but gives
short shrift to the legislature’s ultimate and deliberate
decision to retain capital punishment for certain
offenders.
In reviewing actual sentencing practices, the majority
cites a few misleading statistics from an extra-record
source to find that our juries are reluctant to impose
the death penalty, but the majority’s selective quotation
of figures ignores the impact of other factors affecting
the ratio of capital sentences, such as plea agreements
and acquittals, and does not mention that our juries
ultimately imposed a capital sentence in 43 percent
of the cases presenting that option. J. Donohue, ‘‘An
Empirical Evaluation of the Connecticut Death Penalty
System Since 1973: Are There Unlawful Racial, Gender,
and Geographic Disparities?,’’ 11 J. Empirical Legal
Stud. 637, 641 (2014). The majority’s extra-record fact-
finding also leads it to conclude that the lengthy delay
between sentencing and punishment results from soci-
ety’s moral rejection of capital punishment, a conclu-
sion that ignores that the cause of this delay is not a
state loath to carry out a duly imposed sentence, but
the robust appeal process that the defendants them-
selves use to challenge their sentences.
Most tellingly, in concluding that the death penalty
no longer comports with contemporary standards of
decency, the majority gives no consideration to the fact
that a Connecticut jury recently handed down a capital
sentence in the only capital sentencing hearing to take
place after the enactment of P.A. 12-5. Richard Rosz-
kowski was convicted of murdering three people in
2006, before the effective date of P.A. 12-5. The victims
included nine year old Kylie Flannery, her mother, Holly
Flannery, and Thomas Gaudet. In March, 2014, nearly
two years after P.A. 12-5 took effect, a jury of Rosz-
kowski’s peers determined that his crimes warranted
society’s ultimate punishment. State v. Roszkowski,
Superior Court, judicial district of Fairfield, Docket No.
FBT-CR-06-0218479-T. They did this despite the knowl-
edge that the state had repealed the death penalty for
later committed crimes. One juror was quoted as saying:
‘‘ ‘He deserved to be punished to the full extent of the
law of the land at the time. And at that time, it was
death.’ ’’ A. Griffin, ‘‘New Death Sentence: Killer Exempt
from Execution Ban,’’ Hartford Courant, May 23, 2014,
pp. A1, A5. The majority relegates this crucial informa-
tion to a brief footnote in its lengthy decision. See foot-
note 102 of the majority opinion.
The majority decision is replete with ironies that are
so extreme that they reveal the lack of any rational
basis for the opinion. The majority somehow extracts
a public consensus in favor of prohibiting capital pun-
ishment from a lack of public support for such a repeal.
It concludes that our juries despise capital punishment,
despite a willingness to impose a death sentence in
nearly one half of the cases that presented such an
option. And, the majority reasons, providing defendants
with a robust and sometimes lengthy process to ensure
the fairness of their convictions and sentences renders
those sentences unconstitutionally cruel, essentially
allowing those sentenced to death to render their own
sentences invalid.
In deciding that a prospective repeal demonstrates
a consensus against capital punishment, the majority
ignores our recent observation in Rizzo rejecting the
notion that a prospective repeal indicates a legislative
judgment that the death penalty ‘‘is intolerable under
any and all circumstances’’ and, instead, reflects a
choice between valid modes of punishment. State v.
Rizzo, supra, 303 Conn. 190 n.88. Similarly, the majori-
ty’s position that the narrowing of the offenses for
which the death penalty is available supports a conclu-
sion that capital punishment is unconstitutional directly
conflicts with our decision in Rizzo. Specifically, in
Rizzo, this court acknowledged that refinements to the
application of capital sentences may not indicate a fun-
damental disapproval of the death penalty, but are con-
sistent with the principle that society’s ultimate
sanction ought to be used sparingly. Id., 189.
Equally problematic is the concurring opinion, which,
in a highly unusual move, is coauthored by Justices
Norcott and McDonald.1 The concurring justices have
taken it upon themselves to decide whether our capital
punishment system suffers from racial bias—an issue
that is both unnecessary and improper to address in
this appeal. This issue is not before us in the present
appeal, we do not have a proper factual record to decide
it, and the issue is presently pending in another, sepa-
rate appeal before this court that does have a proper
factual record. See In re Death Penalty Disparity
Claims, Connecticut Supreme Court, Docket No. SC
19252 (filed November 6, 2013).
I observe that, because the concurring opinion
addresses the issues presented in the pending appeal
before this court in In re Death Penalty Disparity
Claims, supra, Docket No. SC 19252, Justice Norcott’s
participation raises questions about the scope of this
court’s decision in Honulik v. Greenwich, 293 Conn.
641, 663, 980 A.2d 845 (2009). General Statutes § 51-198
(c)2 and Honulik contemplate that a judge may continue
to wrap up the cases he had been working on before
he attained the age of seventy, including hearing timely
motions to reconsider. Accordingly, Justice Norcott’s
participation in this appeal is authorized by § 51-198
(c) as interpreted by Honulik, because he had not
attained the age of seventy when the motion to recon-
sider was argued to this court. Currently, however, Jus-
tice Norcott is serving as a judge trial referee and,
therefore, would be unable to participate in the resolu-
tion of the pending appeal in In re Death Penalty Dis-
parity Claims, supra. Yet, by coauthoring the
concurrence, he weighs in on the issues presented in
the pending appeal, thus expressing his opinion on an
appeal in which he would not otherwise be authorized
to participate.
The possibility that a justice who already has attained
the age of seventy—in the context of an appeal in which,
I reiterate, his participation is authorized by § 51-198
(c) and Honulik—would be discussing in a judicial opin-
ion the evidence and issues presented in an appeal that
is still pending after that justice attained the age of
seventy, could not have been contemplated or foreseen
by Honulik. In light of the concurring opinion’s discus-
sion of the issues and evidence presented in In re Death
Penalty Disparity Claims, supra, Docket No. SC 19252,
the legislature may want to consider clarifying the
parameters of § 51-198 (c).
By way of clarification, I do not criticize Justice Nor-
cott for reiterating his well-known concerns about
racial bias in the imposition of the death penalty. I have
the utmost respect for Justice Norcott’s courageous
and steadfast adherence to his personal beliefs over
the past twenty-three years, and nothing in this dissent
should be construed to impugn his integrity. My con-
cerns regarding the questions raised about the scope
of Honulik are limited to the concurring opinion’s dis-
cussion of the issues and evidence presented in a pend-
ing appeal.
Moreover, the concurring justices lack an adequate
factual record to decide this issue. The record in the
present appeal is devoid of these facts because we made
clear, time and again, that any claims alleging racial
disparity in capital sentencing must be heard in the
consolidated habeas litigation styled In re Death Pen-
alty Disparity Claims, Superior Court, judicial district
of Tolland, Docket No. TSR-CV-05-4000632-S. See, e.g.,
State v. Reynolds, 264 Conn. 1, 233–34, 836 A.2d 224
(2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158
L. Ed. 2d 254 (2004); State v. Breton, 264 Conn. 327,
406–407, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124
S. Ct. 819, 157 L. Ed. 2d 708 (2003); State v. Cobb, 251
Conn. 285, 498–99, 743 A.2d 1 (1999), cert. denied, 531
U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State
v. Cobb, 234 Conn. 735, 761–62, 663 A.2d 948 (1995).
That case has now been decided by the habeas court
and is presently pending on appeal before this court.
See In re Death Penalty Disparity Claims, supra,
Docket No. SC 19252. The concurring justices acknowl-
edge that they cannot rely on the findings of the habeas
court in that case—that would plainly be improper—
but they nevertheless discuss the issues presented in
the habeas proceeding, and rely heavily on the opinion
of John J. Donohue III, the expert who testified on
behalf of the petitioners in In re Death Penalty Dispar-
ity Claims, supra, Superior Court, Docket No. TSR-CV-
05-4000632-S. The habeas court, in its memorandum of
decision denying the petition, did not credit Donohue’s
opinion because the court found it lacking when sub-
jected to an analysis pursuant to the test set forth in
McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 95
L. Ed. 2d 262 (1987), which requires proof of purposeful
discrimination in the case at hand. See In re Death
Penalty Disparity Claims, supra, Superior Court,
Docket No. TSR-CV-05-4000632-S (October 11, 2013)
(unpublished opinion). The court also found Donohue’s
opinion to ‘‘fall short,’’ however, even under the broader
test advocated by the petitioners, who relied on a more
general demonstration of racial disparity in the imposi-
tion of the state’s capital punishment scheme to chal-
lenge their sentences. Id. The fundamental weakness
in Donohue’s testimony, the court found, was that it
failed to demonstrate that ‘‘the disparities shown by
[his] analysis [were] the product of Connecticut’s capi-
tal punishment procedure and not merely a reflection
of ambient social or psychological forces.’’ (Emphasis
in original.) Id.
The concurring justices state: ‘‘We strongly empha-
size that the fact that a charging or sentencing decision
may be based in part on impermissible racial factors
does not imply that the prosecutor, judge, or juror mak-
ing that decision is ‘racist,’ as that term is typically
used.’’ The concurrence claims that it relies on the phe-
nomenon that ‘‘most, if not all, of us exhibit unconscious
or implicit bias.’’ I offer two observations. First, by
failing to define racism, the concurring justices free
themselves simultaneously, on the one hand, to claim
that those who support the death penalty or are part
of a system that imposes it are racist, and, on the other
hand, to disavow that claim by stating that they are
instead referring to ‘‘unconscious’’ bias. Second, the
concurring justices fail to draw any distinction between
the feelings of unconscious bias that prosecutors,
police officers, judges and juries may have, and the
actions that are undertaken and the decisions that are
made in the imposition of the death penalty. What
reviewing courts should be concerned with in the impo-
sition of the death penalty are racist acts, not racist
feelings.
I agree with the concurring justices that unconscious
racial bias in our society is a powerful, negative force.
It is this type of racial bias that permeates the daily
lives of every person of color, lying under the surface,
unspoken and unacknowledged, rendered more power-
ful by its invisible omnipresence in every exchange. This
type of racial bias is the reason that the achievements,
contributions and opinions of persons of color are
devalued and dismissed. It is the source of the stereo-
types with which persons of color are encumbered, and
the means by which those stereotypes are reinforced.
The concurring opinion, and apparently also the major-
ity, rely on these tendencies of racism and bias to sug-
gest that in their view the death penalty is always
motivated by bias and racism. Those tendencies, how-
ever, can be said to be present in the imposition of
any criminal punishment, not only the death penalty.
Following the logic of the concurring justices, we
should therefore ban all criminal punishment, since it
cannot be imposed in a racially neutral manner.3
Because the parties to the present appeal did not raise
any claims of racial bias, there is no need for the concur-
ring justices to address that issue. But the concurring
justices address it anyway, claiming that, because of
the result reached in the majority opinion, they must
review the issue of racial bias now or else they will
never have a chance to speak on it. While it is true that
a concurring opinion is not binding authority, no one
familiar with the persuasive force of many of the con-
curring opinions authored by United States Supreme
Court Justice Sandra Day O’Connor can deny that con-
curring opinions have some precedential value. See gen-
erally D. Lowenthal & B. Palmer, ‘‘Justice Sandra Day
O’Connor: The World’s Most Powerful Jurist?,’’ 4 U. Md.
L.J. of Race, Religion, Gender & Class 211 (2004). With
that precedential value comes responsibility. In a con-
curring and dissenting opinion in State v. Santiago, 305
Conn. 101, 325–26, 49 A.2d 566 (2012), Justice Harper
referred to a statistical study of capital punishment
prepared by Donohue, the expert who testified on
behalf of the petitioners in the then ongoing habeas
corpus proceeding, In re Death Penalty Disparity
Claims, supra, Superior Court, Docket No. TSR-CV-05-
4000632-S. Justice Harper, however, in a replacement
page to his concurring and dissenting opinion, added
a footnote, in which he properly recognized that the
study by Donohue ‘‘was prepared in connection with’’
In re Death Penalty Disparity Claims, supra, Superior
Court, Docket No. TSR-CV-05-4000632-S. State v. Santi-
ago, supra, 325 n.11. Accordingly, he noted the neces-
sary limitations of his reference to that study: ‘‘I . . .
point to this study not for the ultimate truth of its
assertions but as a provocation to critical inquiry. I leave
it to the course of judicial process to pass definitive
judgment on the soundness of the study’s data and its
ultimate conclusions regarding the impact of race on
the death penalty in Connecticut.’’ Id. (Harper, J., con-
curring in part and dissenting in part). Accordingly, the
rule precluding a judge from commenting on the issues
presented in a pending appeal is not limited to remarks
made in a majority opinion, but applies with equal force
to remarks made in a concurring opinion. This limita-
tion accommodates concurring opinions’ potential
precedential value, despite their nonbinding nature.
Today’s decision is ultimately about disrespect. It is
about disrespect for the limits placed on this court’s
power, disrespect for the judgment of the people
expressed through their juries and their legislature, and
disrespect for the value of carrying out punishments
deemed warranted by juries and the people’s legisla-
ture. By concluding that capital punishment is unconsti-
tutional, the majority decides that the legislature must
have acted improperly when it deliberately chose to
retain capital punishment for certain offenders. The
majority casts aside the limits on our power and the
respect owed to our coequal branches of government
and unilaterally removes this issue from the public
debate and negates the legislature’s decision to retain
the death penalty for the eleven men on death row.
The majority’s decision renders irrelevant the effort
of our jurors who had to endure difficult testimony and
render perhaps one of the most difficult decisions of
their lives. By tossing aside the sentences reached by
these jurors, and the people’s judgment that these sen-
tences ought to be carried out, the majority shows disre-
spect for the difficulties endured by the families of the
victims of those under capital sentence, and deprives
the victims’ families of the predictability of the rule
of law.
The eleven men currently on death row represent
what the people consider to be the worst of our society,
and the people of Connecticut decided that they should
die for their crimes. The four justices of the majority
today subvert the will of the people of this state, which
was, both before and after the passage of P.A. 12-5, that
these eleven men should die for their actions. And what
they did matters. The monstrosities that they committed
demonstrate the absurdity of the majority’s suggestion
that ‘‘the population of death row has been chosen on
grounds other than the atrocity of the offenders’ crimes
. . . .’’ I provide a recounting of the brutal offenses
committed by some of the prisoners on death row to
serve as a reminder of the horrific crimes that the people
of Connecticut have deemed worthy of execution.
In the middle of the night, after spending the evening
drinking and dancing with a woman he met at a bar in
Waterbury, Robert Breton entered the apartment of his
former wife, JoAnn Breton (JoAnn), who had recently
divorced him. State v. Breton, supra, 235 Conn. 212.
Breton went into JoAnn’s bedroom while she was sleep-
ing, and beat and stabbed her repeatedly. Id., 212–13.
She tried to escape, but barely managed to make it
across the room before Breton caught her and contin-
ued stabbing her in the face, chest and neck. Id. He
finally plunged the five inch blade through her neck,
severing her carotid artery, then left her to bleed to
death. Id. In the meantime, Breton’s teenage son, Robert
Breton, Jr. (Robert, Jr.), had been sleeping in his bed-
room when he was awakened by his mother’s screams
for help. Id., 213. Robert, Jr., tried to come to his moth-
er’s aid, but Breton attacked him, slashing him in the
forearm with the knife, and cutting him on his hands
and fingers. Robert, Jr., tried to escape, running and
bleeding down the stairs. He made it to the first floor
landing, but then his father caught up with him. Id.
Breton repeatedly stabbed his son in the face, chest,
shoulder and neck, finally killing Robert, Jr., in the same
way that he had killed his mother, burying the blade
deeply in his son’s neck. Id.
Daniel Webb abducted Diane Gellenbeck4 at gunpoint
in the parking garage at her workplace in Hartford.
State v. Webb, supra, 238 Conn. 397–98. He forced her
into the car he was using and drove to Keney Park. Id.,
398. Once there, he forced her to remove her shoes,
pantyhose and panties, and then attempted to rape her.
She struggled, scratching his face and ripping her cloth-
ing in the process. Id. When she managed to break free,
he shot her twice in the back. Id. She collapsed, falling
to the ground. As Gellenbeck was crawling away from
the defendant and crying for help as she coughed up
blood, he retrieved the car and drove it back to where
she was crawling. Id. He got out of the car. He walked
over. He came to where she had crawled, in excruciating
pain, thirty-three yards from where she first fell. He
stood in front of her. Id., 398, 486. He then fired two
more shots at her—in the chest and in the ear. Finally,
he bent down and held the gun close to her skin—and
he shot her in the face. Id., 398, 487. With the last shot,
Webb held the gun so close to her that her face was
stippled from the hot gunpowder. Id., 398. At least two
of the bullets that were removed from Gellenbeck’s
body possessed hollow points, ‘‘designed to expand
upon contact and cause greater damage to their target
than ordinary bullets.’’ Id., 399.
While twenty-two year old Julia Ashe was shopping
in the Bradlees shopping center in Waterbury, Sedrick
Cobb deflated one of her car tires, and then waited for
her to return to her vehicle. State v. Cobb, supra, 251
Conn. 302, 318. He had already unsuccessfully tried this
ruse with two other potential victims, who were luckier
than Ashe. Id., 301–302. Ashe was not so lucky. When
she returned to her car with her purchases, he offered
to change her tire for her, an offer that she accepted.
Id., 302. Having gained her trust, Cobb claimed that his
car was disabled and asked for a ride. Id. Ashe agreed,
and while she was driving, Cobb forced her to drive to
a nearby but secluded area, where there was a dam
that abutted a pond. Id. Once there, he ordered her to
move to the backseat of the two door car, so she could
not escape. Id. He began to go through her handbag
and shopping bags, taking money and her personal
papers. Id., 302–303. He next moved to the backseat
and pulled down her pants, inserted his finger in her
anus, then raped her vaginally. Id., 303. He jammed one
of her gloves in her mouth, then covered her mouth
and nose with fiberglass reinforced tape that he had
brought with him. Id., 302–303. He also used the tape
to bind her hands and her feet. He carried her to the
edge of the dam, where there was a twenty-three foot
drop to the concrete below, covered by about one foot
of water. Id., 303. He pushed her off the top of the dam,
but he did not leave. He stayed and watched from his
vantage point at the top of the dam to be certain that
she had died from the fall. Id. Ashe survived the fall
and used some wire mesh to remove the tape from her
hands, cutting herself in the process. She also managed
to remove the tape from her feet, but she could not
remove it from her face, although she gouged her face
with her fingernails trying. She then began to crawl out
of the water onto the shore. Id. In the meantime, seeing
that she was still alive, Cobb went down to the bottom
of the dam, dragged Ashe back to the water, then forced
her facedown into the water, drowning, strangling her,
or both. Id., 303–304.
Richard Reynolds, a convicted drug dealer and mem-
ber of a cocaine trafficking organization in Waterbury,
hit the streets before 4 a.m. on the morning of December
18, 1992, with a .38 caliber pistol in his right coat pocket
and cocaine in his left pocket. State v. Reynolds, supra,
264 Conn. 18–19. Thirty-four year old Officer Walter
Williams of the Waterbury Police Department, who was
on patrol alone that morning, noticed Reynolds and his
companion, and ordered them to ‘‘ ‘[g]et up against’ ’’
Williams’ cruiser. Id., 15, 19, 169 n.153. Reynolds par-
tially complied and placed his left hand on the hood of
the cruiser, but kept his right hand in the pocket of his
coat, where his gun lay, hidden. Id., 19. Reynolds refused
to remove his right hand from the coat pocket despite
Williams’ repeated instructions to do so. Id. Williams
grabbed Reynolds’ right arm, but could not force his
hand out of the pocket. Id., 19–20. As Williams released
his hold on Reynolds’ right arm, Reynolds removed his
left hand from the hood of the cruiser and his elbow
bumped Williams in the chest. Id. Reynolds could feel
the officer’s bulletproof vest under his uniform when
his elbow made contact. Id. Knowing that Williams’
body was protected, Reynolds made his decision. He
whipped around, removed his gun from his coat pocket
and aimed at the young officer’s head, shooting Williams
behind the left ear. Id. Reynolds ran, firing three to six
more shots toward Williams as he raced away. Id. He
left Williams to die in the road. Williams was still alive
when a passerby came by shortly thereafter. He told
the man that he had been hit, then became unintelligible.
Id., 21. His body began to shake uncontrollably. Id. The
passerby radioed for help, and Williams was still alive
when officers arrived at the scene. He reached out and
grasped the shoulder of Officer Timothy Jackson, who
had knelt down beside him. He tried to speak, but could
not. Id. When he arrived at the hospital he was uncon-
scious, and, soon after, he lapsed into a coma. He died
that day from the gunshot wound to his head. Id.
Stanley G. Edwards (Stanley) was thirteen years old
when Todd Rizzo brutally murdered him on September
30, 1997, because Rizzo, who had been fascinated with
serial killings in general and Jeffrey Dahmer in particu-
lar, ‘‘wanted to know what it was like to kill somebody.’’
State v. Rizzo, 266 Conn. 171, 179, 186, 190, 191, 833
A.2d 363 (2003). Earlier that day, Stanley had been play-
ing with friends. Id., 186. After dinner with his mother
and his sister, he went for a ride on his bicycle. Id. As
Stanley rode past Rizzo’s house at approximately 8 p.m.,
Rizzo, who knew Stanley, was just walking to his car
in front of his home. Stanley rode up to Rizzo, who asked
him if his mother or anyone else knew that Stanley was
there. When Stanley responded that no one knew, Rizzo
decided to kill him ‘‘ ‘for no good reason and get away
with it.’ ’’ Id., 187. In order to lure the boy to his back-
yard, Rizzo told Stanley that he could show him some
snakes. Id. As Stanley waited, Rizzo retrieved a flash-
light from his car and he also picked up a three pound
sledgehammer that he had hidden there. Id. He hid the
sledgehammer down the front of his pants, and gave
Stanley the flashlight. Id. While Stanley was using the
flashlight to look for snakes in the backyard, Rizzo
approached him from behind and held the sledgeham-
mer high, then brought it crashing down into the side
of Stanley’s head. Id. Stanley fell forward on his face,
rolling over when Rizzo missed with his second swing,
begging for his life. Id. Rizzo responded by straddling
Stanley ‘‘ ‘like a horse’ ’’ from behind, raining blow after
blow down on him, because he did not want the neigh-
bors to hear Stanley scream. Id., 187–88. Stanley tried
to defend himself, attempting to shield his head with
his hands, but to no avail. After eleven or twelve blows,
Stanley began to gurgle. Id., 188. Rizzo bashed him two
more times to be certain that he was dead. Id. Finally,
Rizzo stomped on Stanley’s back, leaving the imprint
of his boot. Id. Rizzo unceremoniously dumped the body
onto the pavement in a nearby condominium complex.
Id., 189.5
In the present case, the defendant, Eduardo Santiago,
shot and killed Joseph Niwinski with a rifle in exchange
for a used snowmobile. State v. Santiago, supra, 305
Conn. 114, 121, 123. Before killing the victim, Santiago
and his two accomplices cased Niwinski’s home several
times as part of their preparation for the murder. Id.,
122. In addition, they made a homemade silencer for
the rifle, and Santiago hand carved the name ‘‘JOE’’ on
the bullets. Id. On the night of the murder, Santiago
coolly walked up the stairs to Niwinski’s apartment,
made certain that the alarm in the apartment had not
been set, then shot the sleeping man in the head. Id., 123.
Santiago then stole a handgun and $200 from Niwinski’s
apartment but he delayed his exit when he heard an
automobile pull up and sound its horn outside the apart-
ment, and Niwinski’s landline and cell phone began to
ring. Id. After the car drove away, Santiago left. Id. The
next night, Santiago asked the man who had hired him
to kill Niwinski, Marc Pascual, when the snowmobile
would be ready. Id., 124. He was arrested for the murder
before he could collect his payment. Id., 125.
Because of today’s decision, the families of the vic-
tims of these vicious crimes will never have the opportu-
nity to have their voices heard on the subject of whether
the punishment of death does not comport with contem-
porary standards of decency, as they would have, if the
actual legislature had abolished the death penalty. Their
voices, and the voices of the people of Connecticut,
already had been heard by the legislature, and the result
was P.A. 12-5, which retained the penalty of death for
the men already on death row. What message do we
send to the people of Connecticut when we ignore the
reasoned judgment of their elected representatives and
substitute our own judgment instead? What message
do we send to the people of this state when we ignore
the verdicts of their juries? Today’s decision replaces
the rule of law with the rule of four. This is not judging.
This is not the rule of law.
We are here as arbiters to resolve disputes, not to
dictate policy. When determining the scope of our pro-
tections from cruel and unusual punishment, we should
be guided by the contemporary standards of the com-
munity, standards recently expressed in P.A. 12-5,
which reflected a decision not to completely abolish
capital punishment. We could have reaffirmed the mag-
nificence of our democracy by respecting the limits the
people placed on our power and by recognizing that
contemporary standards demonstrate that this debate
was still in the hands of the people to settle. It is cer-
tainly less dramatic to adhere to the decidedly unroman-
tic role assigned to this court of ‘‘merely judg[ing]’’; see
The Federalist No. 78, supra, p. 356; but we are not
here for drama or glory. We are not here to sweep away
entire statutory schemes with the stroke of a pen by
amending public acts from the bench. We are here to
perform the much smaller, yet essential role assigned
to us as a part of this democracy—we are here to judge.
The result of the majority’s circumlocution is that four
unelected judges are overruling the judgment of the
people’s legislature despite recent and strong evidence
that the people continue to support capital punishment
as a penalty that comports with contemporary stan-
dards of decency, at least for those offenders who com-
mitted their crimes when capital punishment was on
the books. What picture does this paint for our citizens
if their legislature passes a law permitting a punishment
that is consistent with the standard held by the people,
and this court overrules their decision and imposes its
own standard?
Finally, and most importantly, although the majority’s
decision improperly substitutes its own judgment for
that of the people and their elected representatives,
today’s decision does not strike a dagger into the heart
of the death penalty. Rather, it should be understood
as an opportunity for the legislature to review and con-
sider, in light of the majority decision, as well as the
current views of the people of Connecticut, especially
those of the families of the victims of the atrocious
crimes committed by the eleven men on death row,
whether the death penalty comports with contemporary
standards of decency in this state.
Accordingly, I dissent.
1
All references to the concurring justices in this dissenting opinion are
to Justices Norcott and McDonald only, and references to the concurrence
or the concurring opinion are to the opinion coauthored by Justices Norcott
and McDonald.
2
General Statutes § 51-198 (c) provides: ‘‘A judge of the Supreme Court
who has attained the age of seventy years may continue to deliberate and
participate in all matters concerning the disposition of any case which the
judge heard prior to attaining said age, until such time as the decision in
any such case is officially released. The judge may also participate in the
deliberation of a motion for reconsideration in such case if such motion is
filed within ten days of the official release of such decision.’’
3
With respect to the gratuitous legal advice offered by the concurring
justices to the prisoners on death row, transparently couched in a speculation
that the prisoners ‘‘will likely withdraw any pending penalty phase appeals
and habeas claims, and move for a correction of their sentences,’’ I merely
observe that today’s decision does not prevent this court from revisiting
this issue in other appeals that raise the issue of the validity of the death
penalty under our state constitution, including the appeal in State v. Peeler,
Connecticut Supreme Court, Docket No. SC 18125 (filed February 26, 2008),
in which this very issue is raised and briefed.
4
See State v. Webb, Conn. Supreme Court Records & Briefs, October/
November Term, 1995, Pt. 8A, Record p. 9.
5
Because the pending appeals of Jessie Campbell; State v. Campbell,
Connecticut Supreme Court, Docket No. SC 18072 (filed November 26, 2007);
Russell Peeler; State v. Peeler, Connecticut Supreme Court, Docket No. SC
18125 (filed February 26, 2008); Lazale Ashby; State v. Ashby, Connecticut
Supreme Court, Docket No. SC 18190 (filed July 14, 2008); Steven Hayes;
State v. Hayes, Connecticut Supreme Court, Docket No. SC 18782 (filed
April 15, 2011); Joshua Komisarjevsky; State v. Komisarjevsky, Connecticut
Supreme Court, Docket No. SC 18973 (filed May 22, 2012); and Richard
Roszkowski; State v. Roszkowski, Connecticut Supreme Court, Docket No.
SC 19370 (filed August 26, 2014); have not yet been heard and/or decided
by this court, I do not recite the facts of those cases.