HARTFORD, Conn. (CN) - Pushing a first-of-its-kind reversal, prosecutors urged the Connecticut Supreme Court on Thursday to reinstate the death penalty for 11 killers the state planned to execute before repealing capital punishment.
Each of the 11 had been on death row in April 2012 when Connecticut's General Assembly abolished the death penalty prospectively, barring the execution of those convicted of capital offenses after April 25, 2012.
An appeal by of those inmates, Eduardo Santiago, led the Connecticut Supreme Court to strike down the death penalty for everyone last year. That 4-3 decision said lawmakers had created "an impermissible and arbitrary distinction between individuals who committed murders before and after April 25, 2012."
Though the court declined to rehear Santiago, it agreed to let the chief state's attorney make the case for reinstating the death penalty by using an appeal by Russell Peeler, who was convicted on two counts of capital felony in connection with the shooting deaths of Karen Clarke and her 8-year-old son, Leroy Brown.
The outcome that the state seeks would mark the first time in Connecticut history that the Supreme Court reversed itself on a constitutional position.
Peeler's public defender Mark Rademacher said the state has to show why the court was "clearly wrong" in Santiago's case when it decided to abolish the death penalty for the 11 death-row inmates, a group to which Peeler belongs.
Also in this group are Joshua Komisarjevsky and Steven Hayes, whose brutal 2007 murder of a Cheshire family stunned many in the area.
Rademacher said the desire to see the Cheshire killers punished represented the reason why many lawmakers tried to limit their repeal of the death penalty in 2012.
"It was Cheshire that scared them into voting for prospective repeal," Rademacher said.
Harry Weller, a senior assistant state's attorney, argued that the court shouldn't catch the "Legislature's punt."
Saying that the Legislature knowingly "accepted the death penalty for these people," Weller added the court should reconsider its previous ruling to abolish the death penalty for everyone because "the court's job is to get it right."
The court has the responsibility to correct something it got wrong, Weller said.
Justice Richard Palmer told Weller that the state has a "pretty significant burden" to prove to the court that it should reverse itself.
One factor that could cause a different outcome is that Justice Flemming Norcott, a member of the majority vote in the August decision of Santiago, has since retired.
Justice Richard Robinson took Norcott's seat at Thursday's hearing, leading Chief Justice Chase Rogers to ask if the court will see a trend of attorneys seeking reconsideration of a 4-3 decision every time the court has a different composition.
Rogers, who had been among the dissenting justices in August, asked how it would look if the court reversed itself on the matter so soon after deciding Santiago.
Weller replied that "it looks worse to perpetuate a decision that's incorrect."
The "will of the people is to execute these people," the prosecutor replied.
An important factor the justices must wrangle with is the legal principle of stare decisis, which is Latin for "to stand by things decided."
Dan Klau, an appellate attorney at McElroy, Deutsch, Mulvaney & Carpenter, has said the Peeler appeal is a difficult one to forecast.
"Will the Connecticut Supreme Court use Peeler to overrule Santiago? I haven't the faintest idea," Klau said.
The Hartford Courant reported that Robinson's vote is difficult to predict as he has never before presided over a death penalty case and has never written on the issue.
He did spend 15 years in Stamford's law department when Gov. Dannel P. Malloy was mayor there, the Courant reported.
Back in August, Justices Peter Zarella and Carmen Espinosa also cast dissenting votes. Justice Palmer wrote the majority decision, which Justices Norcott, Andrew McDonald and Dennis Eveleigh joined.
Klau pointed out that Rogers could be considered a swing vote because she was clearly concerned Thursday about how it would look if the court reversed itself.
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