You asked for a summary of a proposal from the chief state's attorney on post-conviction proceedings in capital cases. A copy of the proposal is attached. See OLR report 2009-R-0178 for more information on appeals available in death penalty cases.

SUMMARY

The proposal establishes a timeline for producing transcripts of court proceedings in cases where the death penalty is imposed. The court clerk must prepare a list of the proceedings, the parties can request changes to the list, and the clerk serves the list on court reporters who must meet certain deadlines for completing the transcripts. The Supreme Court can grant an extension to these deadlines.

The proposal sets a deadline for challenging a conviction and sentence to death or life in prison without release: three years after sentencing if there is no direct appeal or one year after completing direct appeals. But it provides exceptions to the deadlines if the person had a physical disability or mental disease that prevented a timely assertion of a claim, there is newly discovered evidence, or the claim is based on a new interpretation of constitutional law that applies to the case.

It also alters the rules for stays of execution. It reduces the length of the stay when filing a writ of certiorari to the U. S. Supreme Court; eliminates references to a stay for appeals to the U. S. Supreme Court, writs of error, and petitions for a new trial; and sets new rules for stays when habeas corpus petitions are filed.

The proposal applies to applications for writs of habeas corpus filed, on or after it becomes law, by someone convicted and sentenced to death or life without release.

EFFECTIVE DATE: Upon passage except the time limit for challenging convictions and sentences is effective October 1, 2009.

COURT TRANSCRIPTS

The proposal establishes the following rules for court transcripts in cases where the death penalty is imposed.

1. Within 10 days of entering judgment and sentence, the court clerk must (a) prepare a list of dates and names of the court reporter for each pre-trial hearing, trial proceeding, and post-trial hearing, including in camera (in chambers) and ex parte (with only one party present) proceedings and (b) serve the list on each court reporter, prosecutor, defendant's trial counsel, and the trial judge.

2. Within 10 days of receiving the list, any party can object to it and propose amendments. The trial judge must hear objections and proposed changes. Another judge can perform this role if the trial judge cannot promptly act for any reason.

3. The clerk must serve a copy of the final list on each court reporter and file a copy with the Supreme Court, indicating the date it was served on the court reporters and attorneys.

4. Within 90 days of receiving the list, the court reporters must complete the transcripts.

5. Within 10 days of a due date, a court reporter can submit an affidavit to counsel of record and the Supreme Court stating the reason that a transcript cannot be completed on time.

6. A party or court reporter can make a motion in the Supreme Court for an extension.

7. The Supreme Court must set a briefing schedule when the transcripts are completed and delivered to the parties and court.

CHALLENGING CAPITAL FELONY CONVICTIONS AND SENTENCES

The proposal prohibits an application (this appears to include habeas petitions and other types of court applications) challenging a conviction and sentence to death or life in prison without release if it is filed:

1. more than three years after the date sentence was imposed or commitment ordered if there was no direct appeal or

2. more than one year after (a) the final order of the last appellate court in this state to exercise jurisdiction on direct appeal or (b) termination of appellate jurisdiction or denial of writ of certiorari by or final order of the U. S. Supreme Court, whichever is later.

A court can hear a claim regardless of the time limit if the applicant shows due diligence in presenting the claim and:

1. a physical disability or mental disease prevented a timely assertion of the claim;

2. newly discovered evidence exists (including scientific evidence) that (a) could not have been discovered by due diligence by the person or his or her attorney before the three year period to file a habeas corpus petition expired, (b) is not cumulative to evidence presented at trial, (c) is not to be used to impeach witnesses, and (d) shows by clear and convincing evidence that the person is innocent of the offense; or

3. the claim is based on a new interpretation of federal or state constitutional law by the U. S. or Connecticut Supreme Court that applies retroactively to cases on collateral review.

The three-year period does not restart because of (1) resentencing based on an order of the Sentencing Review Division (a panel of three Superior Court judges which reviews sentences imposed on offenders sentenced to a prison term of three years or more, at the offender's request), (2) a sentencing court order reducing a sentence or discharging a defendant, or (3) a sentencing court order under its common law authority to correct an illegal sentence. A claim based on resentencing must be brought within one year after the new sentence was imposed.

Current statutes and court rules do not set time limits for filing habeas petitions.

STAY OF EXECUTION

The law authorizes a stay of execution during the direct appeal and 30 days after it. The proposal eliminates an option for a state's attorney to apply to the Connecticut Supreme Court for an order for a different period.

For a writ of certiorari to the U. S. Supreme Court, the proposal reduces the length of the stay to 10, instead of 30, days after the Court's final determination. It also eliminates references to a stay for (1) appeals to the U. S. Supreme Court, (2) writs of error, and (3) petitions for a new trial. It also eliminates provisions on notices to the court clerk and warden and presenting the defendant to the court to set the execution date.

The proposal sets new rules for habeas petitions. It authorizes a stay until the habeas proceeding is finally determined and the trial court decides a petition for certification to appeal plus 10 days. The stay is automatic for the first habeas petition but a motion to the Supreme Court must request a stay for subsequent petitions and the court can grant the stay only if there is a likelihood of success on the merits.

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