CTNJ file photo

Seven Supreme Court justices were asked Thursday to reverse their 4-3 decision to repeal the death penalty for everyone, including the 11 men who remained on death row when the law was passed.

It was a tall order.

Connecticut’s Supreme Court has never reversed itself on a constitutional position, but prosecutors continued to try to persuade the court to reconsider.

The Chief State’s Attorney used 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, to make the argument that the men who committed their crimes before 2012 should still be put to death.

Mark Rademacher, Russell Peeler’s public defender, said the state has to show the court why it was “clearly wrong” in the previous Eduardo Santiago case when it decided to abolish the death penalty for the remaining death row inmates, including Peeler. The court declined to rehear arguments in Santiago, but allowed prosecutors to try and argue their case using Peeler.

The General Assembly prospectively abolished the death penalty in 2012, barring the execution of those convicted of capital offenses after April 25, 2012. At that time there were 11 men on death row. In August, the court found that the 2012 law “creates an impermissible and arbitrary distinction between individuals who committed murders before and after April 25, 2012.”

Rademacher said the reason many lawmakers voted for a prospective repeal of the death penalty was because they wanted to see the two men convicted in the Cheshire murders punished.

“It was Cheshire that scared them into voting for prospective repeal,” Rademacher said.

But Harry Weller,  a senior assistant state’s attorney, argued that the court shouldn’t catch the “legislature’s punt.”

He said the legislature knowingly “accepted the death penalty for these people.”

He said the court should reconsider its previous ruling to abolish the death penalty for everyone because “the court’s job is to get it right.”

He said the court has the responsibility to correct something it got wrong.

Justice Richard Palmer told Weller that the state has a “pretty significant burden” to prove to the court that it should reverse itself.

Chief Justice Chase Rogers asked if every time there’s a 4-3 decision, attorneys will wait for a new panel of justices to ask them to reconsider a case that it’s already decided.

“It looks worse to perpetuate a decision that’s incorrect,” Weller said.

Rogers wanted to know how it would look if the court reversed itself on the matter just six months after deciding Santiago.

Weller said the “will of the people is to execute these people.”

However, the legal principle of “stare decisis,” which is Latin for “to stand by things decided,” seemed to weigh heavily on the justices’ minds as they questioned the attorneys in the case. The justices expressed concern about what impact a reversal would have on the court, but legal experts weren’t convinced the outcome is that simple.

Dan Klau, an appellate attorney at McElroy, Deutsch, Mulvaney & Carpenter, has said he doesn’t believe anyone can predict the outcome of this decision with any certainty.

“Will the Connecticut Supreme Court use Peeler to overrule Santiago? I haven’t the faintest idea,” Klau said.

It’s unknown when the court will reach a decision.

Predicting the outcome of the case is even more complicated because the justices who heard Santiago are not the same ones who heard Peeler.

Justice Flemming Norcott, Jr., who sat on the Santiago panel, has retired and was replaced by Justice Richard Robinson. Robinson is one of the swing votes since Rogers and Justices Peter Zarella and Carmen Espinosa dissented in that case and Justices Andrew McDonald, Palmer, and Dennis Eveleigh were in the majority. However, Klau pointed out that Rogers could also be considered a swing vote because she was clearly concerned Thursday about how it would look if the court reversed itself and could join the majority.