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With repeal of state death penalty, death row questions arise

Published 8:13 am, Saturday, April 14, 2012
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HARTFORD -- It will be about 10 days before the bill repealing Connecticut's death penalty gets written into its final form by non-partisan legislative staff, then gets shuttled to the Secretary of the State, who will present it to Gov. Dannel P. Malloy.

And around the time ink dries on his signature, the first appeals from the state's 11 death row inmates could be filed -- depending on the tactics of defense lawyers -- to have sentences reduced to life without the possibility of release.

"Some lawyer, in short order, should be making an equal-protection claim," said Leonard M. Crone, president of the 300-member Connecticut Criminal Defense Lawyers Association.

Even though the legislation was written to make sure those on death row would not be spared execution, once it is adopted, the issue could add another layer of appeals that may further delay death penalties, which already take decades to enact.

"I'm not surprised with the vote," Chief State's Attorney Kevin T. Kane said Thursday, one day after the House voted 86-62 to repeal capital punishment. "Obviously the issues are out there to be raised. There are a variety of ways in which the issue could come up."

In fact, even if state judges decide the repeal does not include those on death row in the Northern Correctional Institution in Somers, it could be five years at the earliest, before Todd Rizzo, who beat a Waterbury boy to death with a sledge hammer in 1997, becomes the next in line to receive a lethal injection.

It was last used in May 2005, when serial killer Michael Ross vacated available appeals because he was tired of prison life.

But there is a pending state Supreme Court decision that could result in a declaration the death penalty itself in unconstitutional.

Another case, which has been delayed for years but is set to start later this spring in Rockville Superior Court, will take up the issue of racial disparity in the state's death penalty process. Six of the 11 people on death row are black.

Crone said that it's never a good idea to try to predict how courts will rule, but defense lawyers for people such as Rizzo and Russell Peeler of Bridgeport -- who ordered the execution of 8-year-old Leroy Brown Jr. and his mother Karen Clarke -- will argue that harsher penalties violate the Constitution's equal-protection provisions.

Connecticut would become the 17th state, plus the District of Columbia, to adopt a repeal. The General Assembly followed a path similar to New Mexico, whose lawmakers voted to repeal in 2009, leaving two men on death row. It's the fifth state in five years, including Illinois and New Jersey, whose governor's commuted the sentences of condemned inmates; and New York, where the state Supreme Court ruled capital punishment unconstitutional.

Michael P. Lawlor, undersecretary for justice policy in the state Office of Policy and Management, said Thursday that the reaction from defense attorneys in the state may be more subtle, particularly with many years of traditional appeals ahead of the death-row inmates.

"The whole notion of the Supreme Court throwing out the death penalty is not what the law says," he said, stressing that the court traditionally draws a sharp line when new laws exclude those being punished under older statutes.

Jeff Buckels, director of the New Mexico Public Defender's capital crimes unit, said Thursday that a trial-level judge in a pending capital-murder case against Michael Astorga, denied a motion to dismiss the cases on the grounds the death penalty was abolished.

"If Astorga is condemned, I'm sure it will be brought up on appeal," said Buckels, who declined to comment on the two men on New Mexico's death row who are represented by outside counsel. Opponents of the death penalty in New Mexico expect appeals on those cases to last about another 10 years.

Crone said Thursday he's glad the General Assembly has voted for repeal.

"It's only a matter of time before someone ended up on death row who was innocent," he said, noting that Miguel Roman, of Hartford, exonerated after serving 20 years in prison for murdering his girlfriend, could have easily been sentenced to death and executed for the 1988 crime committed by a neighbor.

Malloy on Thursday acknowledged that death row inmates are all in various stages of appeals on other issues.

"As you know we have not put a person to death who didn't volunteer for it," Malloy said, citing that both Ross in 2005 and Joseph Taborsky in 1960 chose to end appeals and meet the executioner.

"Some of those appeals that go to the fundamental purpose of the statute, which will be changed," Malloy said. "So what happens in those cases I can't tell you."

Senate Minority Leader John McKinney, R-Fairfield, who led opposition against the repeal, said Thursday the way he understands the law, death-row inmates would not have to exhaust traditional appeals before filing constitutional appeals to win life in prison.

"Once the governor signs the bill, there is a question as to whether the court would like to breach that issue prior to exhausting appeals," he said, noting that the issue might not be "ripe" in the eyes of the high court.

"Lawyers prefer not to do anything before it's necessary, so the more time the state is without a death penalty, the better the argument may be not to execute one of the 11 on death row," McKinney said.

However, he predicted that now, those on death row will never pay the ultimate price for their crimes.