Michael Lee Murphy Photo
Connecticut Supreme Court (Michael Lee Murphy Photo)

A lawyer for death-row inmate Daniel Webb focused on jury instructions rather than the legislature’s repeal of the death penalty during arguments on his client’s appeal Tuesday before the state Supreme Court.

Webb was sentenced to death for the 1989 kidnapping and murder Diane Gellenbeck in Hartford. He is one of 10 men on death row in Connecticut for crimes committed before the state took the death penalty off the table last year as a punishment for crimes taking place after the repeal.

Although the law was written prospectively, the Supreme Court was widely expected to examine the fate of the already-sentenced death row inmates in light of the new law.

The court has considered the issue in the case of one inmate, Eduardo Santiago. In that case, the Supreme Court ordered another penalty hearing after it overturned his death sentence. While Santiago is awaiting resolution, Michael Sheehan, Webb’s lawyer, chose to argue that the jury which convicted Webb may not have had adequate instructions in court.

“We had very serious issues and the court has considered [the repeal] and it’s been very fully briefed and typically you try to focus on issues you want to bring to the court’s attention and they’ve already spent a whole day listening on Santiago,” Sheehan said after Tuesday’s arguments.

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During the hearing, Sheehan argued that some jurors in Webb’s case may have been confused by instructions, leading them to unanimously say that there were no mitigating factors in the case. Although Sheehan acknowledged the argument sounded like a technical problem, he said it was important.

“It’s a problem that goes right to the core of our death penalty . . . decisions,” he said. “It goes to the core of that because we want to be sure that all of the jurors fully considered whether or not a mitigating factor had been proven. If in fact only one of them — or more — thought that a mitigating factor had been proven, then there is no valid verdict of death.”

Senior Assistant State’s Attorney Timothy Sugrue disagreed, asking the court to look at the entire record of the case. He said the jurors were fully briefed during several phases of the trial and were properly told how to consider mitigating factors.

“These instructions are the tip of the iceberg and just like the Titanic, it’s the bottom of the iceberg that’s important here. You have to look at the entire iceberg and if you do that, I submit, you will find that it sinks the petitioner’s claim,” Sugrue said.

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Although he spent very little time on it during the proceedings Tuesday, Sheehan did include an argument in his brief on the case stating that Webb’s death sentence violates his right to equal protection since it is no longer a punishment option for future crimes.

The argument is similar to the one made by Santiago’s lawyer before the court in April. Senior Assistant State’s Attorney Harry Weller, who represented the state during the Santiago hearing, said Tuesday that a decision in that case would settle Webb’s case.

“If they decide that it’s unconstitutional in Santiago, it will resolve this case. If they decide that it is constitutional then it will decide that issue for this case,” Weller said. “That really is the case that’s going to drive that particular decision.”

Although the court ordered a new penalty phase for Santiago when it overturned his death sentence, his lawyer, Mark Rademacher, has argued that the death penalty is unconstitutional, making a new penalty phase unnecessary. The Supreme Court is considering the issue but has yet to issue a decision on it.

Santiago was originally sentenced to death after he was convicted in 2005 of a murder-for-hire that occurred in 2000.