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ORD319.7E 10-30-15 15:31:42

ESPINOSA, J., dissenting from the denial of the

state’s motion for stay of execution. I disagree with the

decision of this court to deny the state’s motion for a

stay of execution in State v. Santiago, 318 Conn. 1,

A.3d , reconsideration denied, 319 Conn. 912,

A.3d (2015), pending the resolution of the appeal

in State v. Peeler, Docket No. SC 18125 (argued July

10, 2014). Because the majority in Santiago resolved

this appeal on bases not raised by the defendant, Eduardo Santiago, the state was deprived of fair notice and

has not yet had the opportunity to address those issues.

Fundamental principles of fairness dictate that the state

should have a meaningful opportunity to present argument as to those issues. Consistent with basic principles

of justice, the people of the state of Connecticut—

whose interests are represented by the state—have a

right to be heard after receiving proper notice of the

issues that are in play, and without prejudice. This court

has ordered the parties to file supplemental briefs in

Peeler on the very issues that the state did not have the

opportunity to address in Santiago. That order alone,

however, does not guarantee the state a meaningful

opportunity to present its arguments. Granting the stay

in Santiago would ensure that the state could advance

its arguments without being hampered by any suggestion that the issues have been rendered moot by the

likelihood that the offenders currently on death row

will have had their sentences vacated and commuted

to sentences of life without the possibility of release

prior to a decision in Peeler. Denying the state’s motion

for a stay, therefore, creates an unreasonable risk of a

‘‘deleterious effect . . . on the public’s perception of

the procedural fairness of the criminal justice system.’’

State v. Elson, 311 Conn. 726, 740, 91 A.3d 862 (2014).

In light of the prejudice that would be suffered by

the state by the likelihood that its claims will be rendered moot following the resentencing of the offenders

on death row absent an appeal by the state, strict adherence to the rules of practice will work injustice. Therefore, pursuantto PracticeBook §§ 60-1 and 60-2, I would

grant the state’s motion to stay the execution of the

judgment in Santiago, pending the resolution of the

appeal in Peeler. I recognize that § 60-2 (4) ordinarily

authorizes only the stay of ancillary proceedings, and

I do not agree with the state that the appeal in Santiago

constitutes a proceeding that is ancillary to the appeal

in Peeler. Because in the present matter, ‘‘strict adherence’’ to the rules of practice would work an injustice,

however, § 60-1 not only authorizes, but requires this

court to interpret the rules liberally to grant the stay.

Denying the people of this state the opportunity to

present argument on an issue as important as the one

presented in these appeals, however, is inconsistent
with fundamental principles of fairness.

It is ironic that the majority anchors its decision denying the stay on the insinuation that the state has engaged

in panel shopping. The very reason that the state cannot

present its arguments to the Santiago panel is because

the majority in that panel denied the state’s motion for

argument and reconsideration filed in that case. First,

I observe that the state’s willingness to submit these

issues to the Santiago panel in and of itself should

silence any speculation that the state’s aim is to shop

for a panel ‘‘more to its liking.’’ Second, I note that the

term panel shopping implies that a party chooses one

panel over another—the Santiago majority took any

such choice away from the state and now has the audacity to accuse the state of panel shopping.

Finally, I observe that it would be improper for the

court to rely on this order declining to stay the execution of the judgment in Santiago as a shield to avoid

addressing the substance of the arguments of the people

of this state on the important issue of whether the death

penalty violates our state constitution. The people of

this state have not yet been heard on this issue, and

justice demands that this court address their arguments.

Accordingly, I dissent.