Jan
18

Prosecutors and Blood Lust

Just why the office of the chief state's attorney is hell-bent on killing people is one of those deeper mysteries I am destined never to understand. But there stood Harry Weller, one of the state's smartest appellate lawyers and prosecutors, in the well of the Connecticut Supreme Court, urging justices to reverse themselves and put the death penalty back on the books.

Why, Harry? Or, more to the point, why, Kevin? I direct this question to Kevin Kane, the state's top prosecutor.

In 2015, the high court ruled in yet another bitter 4-3 decision that put on display once again that reason is, and shall always be, the slave of the passions, that the death penalty was cruel and unusual as a matter of state constitutional law. The ruling effectively spared the lives of the 11 men on death row, many of whom have languished for more than a decade in the netherworld of interminable postconviction review.

The decision was long overdue.

Of course, three justices disagreed. So by one vote, the seven-member panel changed the fundamental law of the state. Pundits, and prosecutors, were outraged that the Supreme Court dare tinker with the Constitution—that's the people's prerogative. Let legislators do that work.

In a government of coordinate and separate powers, it sometimes falls to the Supreme Court to say just what is, and is not, constitutional. This is no esoteric legal doctrine. We all read words to that effect in law school early in our education as lawyers.

Let's review fundamentals: Legislators create laws. The executive branch is tasked with putting those laws into effect. The courts determine what the law means when conflicts arise. All this takes place within the context of a constitution. When conflicts arise about what this constitution means, someone has to decide. By custom, that someone is the Supreme Court.

I'll concede that it discomfits when the high court changes a long-standing rule of law. But it's far from a coup d'etat when this occurs. The court is the guardian of fundamental rights—rights placed beyond the reach of the maddening crowd.

The prosecution is now playing to that crowd in a pandering, almost dishonest, way.

When the court declared killing people to be cruel and unusual punishment, it was by the narrowest of margins. One member of the majority, Flemming Norcott Jr., has since retired. The prosecution is gambling that Norcott's replacement, Richard Robinson, will side with the three dissenters to create a new majority—cynicism of the highest order.

Public confidence in the law is undermined when the court changes the law, prosecutors say. And paying a variant of death—or retirement—bingo inspires respect? This is rank demagoguery.

Certainly, the high court's credibility is at a low point just now, at least among lawyers. The internecine squabbling among some of the justices has taken a nasty turn. Justice Carmen Espinosa, for example, has resorted to a level of apoplexy unseemly in reported opinions. At the very least, she should hire better-read clerks to draft opinions. A recent reference to John Rawls' "A Theory of Justice" looked not so much misplaced as pretentious.

And Justice Richard Palmer's quest for a legacy is yielding unintended consequences: Practitioners are still scratching their heads over the decision in State v. LaPointe, a godsend for Richard LaPointe, whose murder conviction was overturned, but a black hole for those committed to principled adjudication of disputes.

I don't know how Robinson, Norcott's replacement, will vote on the death penalty. But if there is another 4-3 vote, with Robinson in a new majority restoring the death penalty, the court will become the laughing stock of the nation.

Institutions make law. That's a given. The Supreme Court made a decision unpopular to prosecutors, but causing no public groundswell of opposition. Let the decision stand. If bloodthirsty public servants feel deprived of the satisfaction of bloodlust, let them move to a state still comfortable with the practice of killing people in the name of justice.

Comments (1)
Posted on January 28, 2016 at 1:32 pm by Harry Weller
Death penalty
Norm asks why the state sought to reargue the constitutionality of capital punishment in State v. Peeler after the 4-3 decision in State v. Santiago held that the death penalty violated the state constitution. In the same blog post , however, he states "Practitioners are still scratching their heads over the decision in State v. LaPointe, a godsend for Richard LaPointe, whose murder conviction was overturned, but a black hole for those committed to principled adjudication of disputes." The problem with Santiago was that the majority decision and the concurrences are infested with the same flaws in reasoning and process as Lapointe but on a huge issue rather than a single case. Indeed, practitioners in the know are scratching their heads even harder about the Santiago majority decision. If one respects the rule of law, and I know well that Norm does and I admire and respect him for it, one cannot lament Lapointe and then ask the state to swallow Santiago without a fight. One primary common flaw was that the Santiago majority reached well beyond claims raised by the defendant to reach and rely on principles that were not at issue. As in Lapointe, the state never had a chance to argue, let alone rebut these principles.
I won't re-brief the issues here as the state's arguments are available on line, but when the supreme court nullifies the legislative process, shortchanges the adversary process, and even compromises the rest of the court's ability to resolve an outstanding case, our system of checks and balances is in grave jeopardy. And Santiago is one in an ever-increasing series of cases in which a majority of the Court acted well beyond its authority or contrary to its constitutional mandate. Fortunately, in Peeler, the state was at least given the opportunity to say to the Court that it's decision was way out-of-line. We would not be true to our oaths or the rule of law if we did not speak up.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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