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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 ofexecution. 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 offair notice and has notyet hadthe opportunityto address those issues. Fundamentalprinciples offairness dictatethatthe state should have ameaningful opportunity to present argumentastothoseissues. Consistentwithbasicprinciples 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 issuesthatare inplay, andwithoutprejudice. 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 inPeeler

. 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 ofthe criminaljustice 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 ofthe offenders

on deathrow absent an appealbythe state, strict adherence to the rules ofpractice will work injustice. Therefore, pursuantto PracticeBook §§ 60-1 and60-2, Iwould 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 inSantiago constitutes a proceeding that is ancillary to the appeal in Peeler

. Because in the present matter, ‘‘strict adherence’’ to the rules ofpractice 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 inconsistentwith fundamental principles of fairness.
Itis ironicthatthe majorityanchorsits decisiondenyingthe stayontheinsinuationthatthe statehas engaged inpanel shopping. Theveryreasonthatthe 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 awayfromthe state andnowhasthe 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 addressingthe substance ofthe arguments ofthepeople ofthis state onthe importantissue ofwhetherthe death penalty violates our state constitution. The people of this state have not yet been heard on this issue, and justice demandsthatthis courtaddresstheirarguments. Accordingly, I dissent.