As has been reported by The Connecticut Examiner and The New Haven Register, the Connecticut Conviction Integrity Unit hasn’t overturned any convictions since its inception in 2021.
Reasons for the lack of consequential decisions abound, but one might be personnel. According to the CIU’s webpage, it investigates cases and then refers certain ones to a Review Panel of “two current or former prosecutors with no connection to the underlying conviction, one retired State of Connecticut judge/justice or federal judge and a Connecticut-barred attorney with extensive experience in state criminal defense.” Right now, the retired judge on the Review Panel is former Supreme Court Justice Peter T. Zarella.
Zarella’s writing and opinions raise questions as to whether he’s the right choice to decide which criminal convictions deserve reversal.
Last year, Zarella authored an article “The Jurisprudence of Stare Decisis” for the Fall 2022 issue of the Connecticut Trial Lawyers Association’s magazine, Forum. The article, inspired by the Supreme Court of the United States reversal of history in Dobbs v. Jackson Women’s Health Organization — the case that overturned decades of precedent established by Roe v. Wade — doesn’t require explication here, other than to say that Zarella has very firm opinions on stare decisis — Latin for “to stand by things decided” — the doctrine regarding precedent and when court decisions should be changed.
Dissecting the entire essay isn’t necessary. It’s important to remember that it was written for what is essentially a trade publication, so the lay reader probably wouldn’t be interested — and may not even be invited since it’s not online — to read it. In it, Zarella argues against “a la carte” stare decisis analysis and accuses jurists of being emotionally swayed into overturning precedent. Connecticut’s Supreme Court Justices are far from wilding out; sometimes courts overturn precedent because of what’s called “evolving standards of decency,” something scholars have called a “faith in the inherently progressive nature of history.”
Zarella makes one jarring statement in the article, though, that warrants attention:
At first, it’s a record-scratch stopper. If a precedent is indeed wrong, then it shouldn’t be followed. It’s an especially disturbing pronouncement from someone involved in Connecticut’s CIU and charged with examining precedent, namely previously decided criminal cases. The Connecticut CIU exists solely to cast a critical eye on them — and change incorrect or weak decisions. There’s no other principled way to respond after finding that a criminal conviction no longer inspires confidence; the Review Panel needs to recommend throwing out the judgment and reopening the case.
Marissa Bluestine, Assistant Director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, said, for an operational CIU, “You need to have people who are open to the possibility that, maybe this time the conviction is not sound and needs to be overturned, whether that’s because the person is actually innocent, did not commit the crime or because the system used to, that process used to convict them is so flawed that it can’t stand up to modern scrutiny.”
It’s not clear that Zarella is that person, not just because of his article — it’s more tautology than bombshell — but the decisions referenced in the article remind people in Connecticut that he’s not too disturbed by the prospect of false conviction or a lack of transparency in the courts.
Zarella coins the term “Peeler methodology” — referring to his dissent in State v. Russell Peeler, a case in which the constitutionality of Connecticut’s death penalty was finally determined — to list what evaluators need to consider in disrupting a court decision, as if its lack of accuracy isn’t enough.
The Peeler decision affirmed another case, State v. Santiago, and Zarella’s dissenting opinion in Santiago provides more reason to question his place on the CIU panel. While it’s possible to oversimplify his dissent in Santiago, Zarella’s thrust is that the framers of the Connecticut Constitution contemplated capital punishment so that’s enough to maintain the practice of executing defendants.
Specifically, Zarella said that contemporary understandings of applicable economic and sociological norms do not compel the conclusion that capital punishment is morally unacceptable in Connecticut. That is, the fact that poor people and mostly people of color are disproportionately sentenced to death and ultimately executed across the country is not relevant to whether the state of Connecticut should kill them.
As a CIU Review Panel member, Zarella’s tolerance for the death penalty itself is problematic. As Bluestine noted, an appropriate member of the panell would appreciate that many criminal convictions might be flawed. To support the death penalty and to appreciate the possibility of wrongful conviction at the same time is to support possibly erroneous executions. The Death Penalty Information Center reviewed death sentences in 34 states over 23 years, and found that “nearly seven in 10 were thrown out for serious error, requiring 2,370 retrials.” If Zarella remains unperplexed by a possible wrongful execution, then a wrongful conviction won’t keep him awake at night.
What his support for the death penalty means is that risk of error in criminal convictions, even capital ones, is not a deal-breaker for Zarella. And, unfortunately, he’s not alone. In a survey conducted by the Pew Research Center, 78% of respondents believed that an innocent person might be put to death but only about 60% oppose the death penalty. Only 21% believed that the courts have adequate procedures to prevent erroneous executions, but far more than 21% still agree with putting people to death.
Even beyond his capital punishment stance, there’s more reason to question whether Zarella should be on the panel. The former justice was a bit player in a scandal about seventeen years ago when the then-Chief Justice, the late William ‘Tocco’ Sullivan, withheld the release of a decision in a case, Clerk of the Superior Court, Geographical Area Number Seven et al v. Freedom of Information Commission, because Sullivan feared that Zarella’s promotion to Chief Justice might have been imperiled by his position on the Freedom of Information Act and the issue of open government records.
To be clear, there’s no evidence that Zarella knew about Sullivan’s delaying the release of the decision and he asked that his name be withdrawn from consideration when Sullivan’s acts came to light so as to remove even the appearance of impropriety.
However, the content of the decision is relevant to his station on the CIU Review Panel. In the case, Connecticut Attorney Russell Collins requested copies of the daybooks held by the clerk of the Meriden court under the Freedom of Information Act.
Collins has not replied to requests for comment and the files have since been removed from the judicial branch’s website so the reason for this request — irrelevant to public records analysis but important to the story — isn’t clear. When a lawyer for the judicial branch denied Collins’ request for the records, the case ascended an administrative and appellate staircase on which it encountered Peter Zarella.
In the decision, Zarella concurred with Justice Sullivan that these records were beyond the scope of the state’s public records law. Considering that many petitions to the CIU allege violations of pretrial discovery law or even prosecutorial misconduct that can be proved only through administrative minutiae, Zarella’s position on the transparency of court records calls into question his appropriateness to serve on a panel that examines the integrity of convictions that rest on the opacity of court records and processes.
Connecticut’s is not an outlier among CIUs that started their work in 2021; of 50 units with no recorded exonerations (the Nutmeg State is not listed among them), 13 of them started their work during the same year. It’s possible these new projects are just warming up. It’s also possible that panel members aren’t likely to be convinced that convictions can be wrong.
“The only power of the judiciary has comes from its perception by the people and the other branches,” Zarella wrote in the Forum article.
Other than those who work for the state on it, no one is defending Connecticut’s CIU, not the people, not the state’s other branches. It remains to be seen if the unit should have power at all, regardless of how it derives it. If Connecticut’s CIU persists, though, it might operate with more public faith if it loses Zarella.