dissenting in part.1 believe that Connecticut’s death penalty statute is facially unconstitu*287tional and may not be applied to the defendant or anyone else. I also believe that the trial court committed harmful error by instructing the jurors, during the guilt phase of the defendant’s trial, that they could draw an adverse inference from the defendant’s failure to call as witnesses a psychiatrist and a psychologist with whom he had consulted concerning his insanity defense.2 I therefore would remand this case for a new, noncapital trial.
Our post-Furman3 death penalty statutes, from which General Statutes § 53a-46a derives, were enacted by the legislature in 1973. See Public Acts 1973, No. 73-137, § 4. Section 53a-46a sets forth the procedures as well as the substantive law governing the imposition of the death penalty. Section § 53a-46a “permits a person convicted of a capital felony to be sentenced to death if the state proves the existence of an aggravating factor beyond a reasonable doubt and the defendant fails to prove the existence of a mitigating factor by a preponderance of the evidence.” State v. Breton, 212 Conn. 258, 260-62, 562 A.2d 1060 (1989).
The defendant challenges not only the validity of his capital felony convictions, but also whether § 53a-46a passes muster under both the state and the federal constitutions. The two specific constitutional issues that I address are the following: (1) whether § 53a-46a violates the state constitution because the death penalty constitutes cruel and unusual punishment; and (2) whether § 53a-46a violates the state and federal constitutions because it does not provide for a capital sen-tencer.
*288I
State Constitution: Cruel and Unusual Punishment
A
THE STATE CONSTITUTIONAL PROVISION
Although our post-Furman death penalty statute has previously been considered by this court,4 the state constitutional issues raised in this appeal have been left open. As this court stated in State v. Breton, supra, 212 Conn. 271, “we have not decided whether the death penalty, per se or as applied, violates any provision of our state constitution . . . [and] have not determined what standard of review will govern any future appeal of the defendant’s conviction or death sentence . . . .” In this case, the defendant squarely raises the issue of whether the punishment of death provided for in § 53a-46a constitutes cruel and unusual punishment under the state constitution.
When reviewing the contours of our state constitution, we are clearly not limited by the interpretation given to the cognate provisions of the federal constitution by the United States Supreme Court. “It is beyond dispute that we are not bound by federal precedents in interpreting our own state constitutional provisions. ‘[F]ederal decisional law is not a lid on the protections guaranteed under our state constitution.’ Doe v. Maher, 40 Conn. Sup. 394, 419, 515 A.2d 134 (1986). As we stated in State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992), ‘federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit *289state governments from affording higher levels of protection . . . .’ (Internal quotation marks omitted.)” Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316-17, 640 A.2d 101 (1994); see also State v. Joyce, 229 Conn. 10, 15-16, 639 A.2d 1007 (1994).
Our state constitution, which was first formally adopted in 1818,5 does not explicitly prohibit the imposition of cruel and unusual punishment. Nevertheless, there are constitutional rights that are so fundamental they need not be set forth explicitly in order to be protected by our state charter of liberty. See, e.g., Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962) (the right to protection against double jeopardy is implicit in the due process clause of our state constitution); Doe v. Maher, supra, 40 Conn. Sup. 394 (implicit in our state due process clause is the fundamental right to privacy, which includes the right of a poor woman to require that the state’s medical assistance program for the poor pay for therapeutic abortions). These fundamental rights “are recognized in the preamble of the constitution and that of the declaration of rights; and all are guaranteed by the due process clause. These clauses, first incorporated in the constitution of 1818, were carried forward in their original language through several revisions to the present constitution of 1965. The preamble of the constitution makes clear that it reserves to the people 'the liberties, rights and privileges which they have derived from their ancestors’; and the preface clause to the declaration of rights, arti*290cle first, broadly incorporates the concept of ordered liberty by stating ‘[tjhat the great and essential principles of liberty and free government may be recognized and established . . .’ which clause is followed by a declaration of specific rights.” Doe v. Maher, supra, 422.
Article first, § 8,6 of our state constitution, which prohibits the deprivation of life without due process of law, and article first, § 9,7 which provides that no person may be punished unless “clearly warranted by law,” provide a textual basis for the prohibition of cruel and unusual punishment. Inextricably interwoven into the fabric of these two clauses is the right of every person in Connecticut to be free from such punishment no matter what crime that person has committed. The prohibition against cruel and unusual punishment has always been understood to be a fundamental right in any civilized nation. Even the majority concedes that Connecticut’s constitution also prohibits such punishment.
The historical antecedents of our formal state constitution confirm the existence of this fundamental right. As early as 1673, the laws of the Connecticut colony explicitly prohibited the infliction of bodily punishments “that are Inhumane, Barbarous or Cruel.” Laws of Connecticut (1673) p. 58 (section entitled “Punishment”). In addition, Chief Justice Swift wrote that “though the law invests goalers with all the powers necessary for the interest of the commonwealth, yet they are not to behave with the least degree of wanton cruelty to their prisoners.” 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) pp. 268-69 *291(hereinafter Swift’s Digest). He also wrote that if a person commits a crime without sufficient mental capacity, such that “he does not comprehend the consequence of what he is doing, cannot distinguish between right and wrong, and is rather actuated by a blind impulse,” then that person is not criminally liable, because “it would be cruel to punish him for his acts.” Id., p. 362.
Justice Swift’s writings are particularly significant to our state constitutional jurisprudence. “He was instrumental in encouraging the public and the legislature to convene the constitutional convention of 1818. Although he pursued a written constitution in order to achieve separation of powers, his participation as a leader is significant. J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) pp. 40-41. Second, since Justice Swift was the chief judge and the state’s leading judicial scholar at the time of the convention, his views on the law take on great significance in determining what the framers had in mind when adopting the language of the constitution. See W. Horton, ‘Connecticut Constitutional History 1776-1988,’ 64 Conn. B.J. 355, 356-58 (1990).” State v. Joyner, 225 Conn. 450, 490, 625 A.2d 791 (1993) (Berdon, J., dissenting).
Furthermore, our case law has long recognized a state constitutional right to be free from cruel and unusual punishment. See State v. Smith, 5 Day (Conn.) 175, 178-79 (1811) (the court may not impose a sentence that is cruel or inhuman); State v. Torkomian, 113 Conn. 785, 787, 156 A. 860 (1931) (the court may not impose a punishment so “unusual” or “excessive” as to “shock the conscience”); State v. Kyles, 169 Conn. 438, 442-44, 363 A.2d 97 (1975) (considering a “cruel and unusual punishment” claim under both the state and federal constitutions); State v. Kreminski, 178 Conn. 145, 153 and n.4, 422 A.2d 294 (1979) (recog*292nizing that article first, § 8, prohibits “ ‘cruel and unusual punishments’ ”); State v. Dupree, 196 Conn. 655, 665, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985) (considering a “cruel and unusual punishment” claim under both the state and federal constitutions). The fact that State v. Smith, supra, 175, predates our first formal constitution is significant because “[t]he common law provided the foundation for our unwritten constitution prior to 1818.” State v. Joyner, supra, 225 Conn. 488 (Berdon, J., dissenting); see also W. Horton, The Connecticut State Constitution (1993) pp. 60-61 (suggesting that an excessive punishment would violate article first, § 8, of the Connecticut constitution).
B
CONTEMPORARY STANDARDS OF DECENCY
It is clear, as the majority concedes, that the right to be free from cruel and unusual punishment is protected by our state constitution. It is also clear that when our formal constitution was first adopted in 1818, the death penalty was the designated punishment for certain crimes. Nevertheless, we have never held that our constitution must be interpreted today to mirror the standards of decency that prevailed in 1818. Indeed, in State v. Lamme, 216 Conn. 172, 183, 579 A.2d 484 (1990), we recently concluded that it is appropriate to seek a contemporary interpretation of the constitution: “ ‘The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.’ State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988).”
The history of this state on the issue of death as an acceptable punishment clearly demonstrates that, constitutionally, we must look at the penalty through the *293lens of contemporary standards. This court certainly would reject, as cruel and unusual, other forms of punishment that were at one time as acceptable in Connecticut as the death penalty. For example, contemporary standards of decency would certainly forbid the punishment imposed by a judge of the Connecticut Superior Court in 1773 for burglary: “[T]hat [the defendant] go from hence to the Goal from whence he Came and from thence to the place of Execution and then and there be branded on his forehead with the Capital Litter B on a hot Iron and have one of his Ears Nailed to a post and Cut off and also Whipt on his Naked body fifteen Stripes.” 4 American Legal Records, The Superior Court Diary of William Samuel Johnson 1772-1773 (J. Farrell ed., 1942) pp. 91-92.
Chief Justice Swift recognized these evolving standards of decency when he pointed out, in his 1796 treatise on Connecticut law, that while England imposed the death penalty for 241 crimes, Connecticut had narrowed the number to only seven.8 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 293 (hereinafter Swift’s System). Moreover, notwithstanding this limitation of the death penalty, Swift advocated that it should be further circumscribed as follows: “I shall only remark, that the dreadful punishment of death ought only to be inflicted on treason and murder: that confinement to hard labour ought to be inflicted on those crimes, to which there is a strong *294temptation, which indicate great moral depravity, which are infamous, and are highly injurious to society; that this ought to be varied according to the aggravations of the offence: and that for all inferior crimes, corporal pains and pecuniary penalties may be proportioned in such a manner as to subserve the interest of society: that corporal punishment is proper for those crimes which are infamous and bad in their own nature; and pecuniary penalties are adapted to actions which are deemed crimes in a political point of view, and bad because they are prohibited.” (Emphasis added.) Id., p. 297.9
Accordingly, we must consider the death penalty and our state constitution’s prohibition against cruel and unusual punishment in the context of contemporary standards of decency and morality. The prohibition against cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958). If our death penalty is unacceptable under contemporary standards of decency and morality, then *295we, as the state’s highest appellate court, are obligated to declare it unconstitutional. District Attorney for Suffolk District v. Watson, 381 Mass. 648, 661-62, 411 N.E.2d 1274 (1980).
The majority concedes that our state constitution’s prohibition against cruel and unusual punishment must be interpreted in light of contemporary standards. Nevertheless, it bases its conclusion of what this standard requires on a cursory analysis of the issues. First, the majority attempts to insulate itself from the moral degradation of the death penalty by stating that “[t]he question is not whether any one of us would vote to enact a death penalty if our role were that of a legislator.” Second, the majority relies on the judgments of the legislatures of this state and the other states that have enacted death penalty statutes. While this simplistic approach may provide an easy way for the majority to decide the important issue before us, it falls to fulfill our obligation as a constitutional court of last resort because it evades the substance of the issue.
The fact that many state legislatures have enacted death penalty statutes clearly does not control the issue of whether contemporary standards prohibit that punishment. Public opinion polls also are not controlling. “The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, ‘may not be submitted to vote; [it] depend[s] on the outcome of no elections.’ ‘The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’ Board of Education v. Barnette, [319 U.S. 624, 638, 63 S. Ct. 1178, 87 L. Ed. 1628] (1943).” Furman v. Georgia, 408 U.S. 238, 268-69, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Brennan, J., concurring). Justice Arthur J. Goldberg and Professor Alan M. Dershowitz explained it this way *296in discussing the federal constitution’s cruel and unusual punishment clause: “Were wide acceptance-measured by statutory authorization or public opinion polls—enough to authorize a punishment, the clause would indeed be drained of any independent integrity as a governing normative principle. Like no other constitutional provision, its only function would be to legitimize advances already made by the other departments and opinions already the conventional wisdom. It would forbid only extremely aberrant penalties. The framers cannot have intended so narrow a role for this basic guaranty of human rights.” (Internal quotation marks omitted.) A. Goldberg & A. Dershowitz, “Declaring the Death Penalty Unconstitutional,” 83 Harv. L. Rev. 1773, 1782 (1970).
This is not to say, of course, that the views of the public are irrelevant in determining whether contemporary standards of decency prohibit the death penalty. Although public opinion is relevant, it cannot appropriately be measured by abstract polls that elicit generalized, emotional responses from participants. Nor should public opinion be gauged by the actions of activists who are blindly and vindictively guided by a desire for retribution.10 Instead, as I discuss later in *297this opinion, public opinion must be gleaned from a society’s actual record in carrying out the death penalty. See District Attorney for Suffolk District v. Watson, supra, 381 Mass. 662 (“what our society does in actuality is a much more compelling indicator of the acceptability of the death penalty than the responses citizens may give upon questioning”). While it is easy for the public to respond to the conviction of a vicious murderer or a serial killer by advocating the ultimate penalty of death, it is far more difficult for society to carry out that penalty by taking the life of that person. This is simply because we, as a civilized society with high moral values, believe “that even the vilest criminal remains a human being possessed of common human dignity.” Furman v. Georgia, supra, 408 U.S. 273 (Brennan, J., concurring).
In determining whether the death penalty is cruel and unusual under contemporary standards of decency, several factors should be considered. These factors are: (1) whether the punishment is degrading to the dignity of the human being; (2) whether the punishment is acceptable to the public; (3) whether the punishment has, in the past, been administered in an arbitrary and capricious manner; (4) whether the punishment has been imposed in a discriminatory fashion; (5) whether the punishment serves any legitimate purpose; and (6) whether the punishment is so final and complete that error cannot be corrected. Although each of these factors may be considered separately as a standard for determining whether a punishment is cruel and unusual, they are interrelated and should be considered *298collectively in determining whether contemporary standards of human decency and morality prohibit the state from imposing this “dreadful punishment.” These factors simply provide means by which a court can determine whether a challenged punishment is cruel and unusual under the civilized standards of 1994.
1
Degrading to the Dignity of the Human Being
The punishment of death is inherently degrading to the dignity of a human being for at least two reasons. First, the physical and psychological pain associated with it are barbaric. See, e.g., Amnesty International, United States of America, The Death Penalty (1987) pp. 108-19; K. Haas & J. Inciardi, “Lingering Doubts About A Popular Punishment,” in 24 Criminal Justice System Annuals, Challenging Capital Punishment: Legal and Social Science Approaches (K. Haas & J. Inciardi eds., 1988) pp. 13, 23-24. Such pain exists whether the death penalty is carried out by electrocution, hanging or lethal injection,11 and is especially bar*299baric when an attempted execution is bungled.12 “Since the discontinuance of flogging as a constitutionally permissible punishment . . . death remains as the only punishment that may involve the conscious infliction of physical pain.” (Citation omitted.) Furman v. Georgia, supra, 408 U.S. 287-88 (Brennan, J., concurring).
Furthermore, “[t]he cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.” People v. Anderson, 6 Cal. 3d 628, 649, 493 P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d 344 (1972).13 The death *300penalty is inherently cruel, regardless of the method that is used to carry it out.14
Second, as Justice Brennan points out, punishment by death is a denial of a person’s basic humanity. “Death is truly an awesome punishment. The calculated *301killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose the right to have rights. A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a person for purposes of due process of law and the equal protection of the laws.” (Internal quotation marks omitted.) Furman v. Georgia, supra, 408 U.S. 290 (Brennan, J., concurring). The destruction of a human being does not become any more humane simply because the state is the executioner. To burn human flesh to death by electrocution, or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice.15
2
Public Acceptance
The second factor we should consider is public acceptance of the death penalty. Public acceptance, as I pointed out previously, should not be measured in the abstract by opinion polls, or by the outraged response of the public to a particularly vicious murder. Instead, public opinion should be measured objectively in terms of society’s actual record in imposing the death penalty.16
*302Over the last 100 years, there have been only seventy-three executions in Connecticut, and no one has been put to death since 1960. W. Bowers, Legal Homicide: Death as Punishment in America 1864-1982 (1984) pp. 419-20. Indeed, our whole state history demonstrates a reluctance to impose the death penalty. For example, from colonial days to the present, Connecticut has required that a capital conviction must be supported by the testimony of at least two witnesses. Laws of Connecticut (1673) p. 69 (section entitled “Witnesses”); see General Statutes § 54-83. This requirement is “unique in Anglo-Saxon jurisprudence” and reflect’s Connecticut’s “ ‘high regard for life.’ ” State v. Schutte, 97 Conn. 462, 465, 467, 117 A. 508 (1922). Moreover, *303in 1846, the Connecticut legislature created a distinction between first degree murder and second degree murder in order to limit the application of the death penalty. State v. Dowd, 19 Conn. 388, 391-92 (1849). This court held that the statute gave the jury discretion in all cases to find second degree murder, and therefore avoid the death penalty. Id., 393. In 1951, the legislature enacted a statute that allowed the jury to recommend life imprisonment rather than death for individuals convicted of first degree murder, making it even easier for the jury to avoid imposing the death penalty. See Public Acts 1951, No. 369.
It is also significant that around the time of the adoption of our first formal state constitution in 1818, England imposed the death penalty for at least 200 crimes;17 2 Swift’s Digest, supra, p. 259; whereas Connecticut had narrowed the number to only five. See footnote 8. Many historians have recognized Connecticut’s reluctance to impose the death penalty. “There have been, it is believed, within the last two hundred and twenty years, fewer executions in Connecticut for crime, than in any other state of equal size in the world. The records of our courts have scarcely the stain of blood upon them . . . .” 2 G. Hollister, The History of Connecticut (1855) p. 526. According to The Judicial and Civil History of Connecticut, our early capital laws “were seldom enforced, and, indeed, the cases in which capital punishment has been inflicted have been exceedingly rare, some counties hardly having known an execution.” The Judicial and Civil History of Connecticut (D. Loomis & J. Calhoun eds., 1895) p. 63. “[T]he forefathers of Connecticut can only be admired for a clearer appreciation of human rights, human *304suffering and human justice, than the average of civilized nations.” Id., p. 71.
Furthermore, the death penalty has been repudiated consistently in the northeastern part of our country and in many parts of the world.18 New York, Maine, Massachusetts, Vermont and Rhode Island do not provide for capital punishment. It is difficult to understand why Connecticut, the birth place of the world’s first constitution,19 would continue to sanction the execution of human beings. Although we do not decide cases according to which side has the greatest number of supporters, it is significant that sixteen religious, social and other concerned groups have filed amicus briefs opposing the imposition of the death penalty in this case.20
3
Arbitrariness and Capriciousness of the Death Penalty
The third factor that must be considered in determining whether the death penalty comports with contemporary standards of decency and morality is the arbitrary manner in which it is imposed. When the legis*305lature debated our post-Furman death penalty statute, some legislators expressed great concern about the likelihood that the statute would be arbitrarily applied. For example, Senator Joseph Fauliso stated: “The Bill before us fails to remedy the arbitrary application of the law which was the critical element in [Furman]. Dean [Pollak], the distinguished scholar and the former dean of Yale Law School made a study of this Bill. He concluded by saying, I quote, ‘The conclusion that this Bill is unconstitutional is not a criticism of the drafters, it is rather a recognition that they were undertaking a constitutional impossibility. Maintaining the idea of a death sentence while insuring that it would in practice almost never be imposed, the result necessarily is not merely [that death sentences] would be rarities but that those rarities would occur wantonly and freakishly and hence, unconstitutionally.’ ” 16 S. Proc., Pt. 4, 1973 Sess., p. 1892.
Similarly, Senator Joseph Lieberman objected that the bill established “a process which is so filled with opportunities to condemn one human being to death and find favorably for another in the same circumstances that it cannot withstand the . . . test of the Furman case. The situation is made increasingly fallible by the vagueness of some of the aggravating and mitigating factors .... I fully respect the apparent intention of the Judiciary Committee in writing in these factors which I assume was to protect all but the worst, most dangerous criminal from the ultimate sanction of death, but I feel in their attempt to take a terrible penalty and make it, one might use the word humane, they have built a crazy ‘house of cards’ which cannot stand.” Id., p. 1906.
Justice Brennan expressed this same concern in Fur-man: “When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is 'strong that the pun*306ishment is not being regularly and fairly applied. . . . When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment. No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison.” Furman v. Georgia, supra, 408 U.S. 293-94 (Brennan, J., concurring); see generally C. Black, Capital Punishment: The Inevitability of Caprice and Mistake (2d Ed. 1981).
Indeed, this case demonstrates the inherent arbitrariness of our death penalty. After the defendant had confessed to the murders of six young women in Connecticut, he was charged with capital felony in the judicial district of Windham for two of the murders. The state’s attorney in that case, with full knowledge of all of the murders that had been committed by the defendant, allowed him to plead nolo contendré to two counts of first degree murder and to be sentenced to two consecutive terms of life imprisonment (120 years).21 When the defendant was subsequently prosecuted in the judicial district of New London for the other four murders, a different state’s attorney decided to proceed to trial on the capital felony charges and seek the death penalty. As a result, the defendant was convicted and sentenced to death. This life-and-death difference between the sentences received by the defendant for identical crimes proves that an unacceptable level of arbitrariness exists due to prosecutorial discretion, even if the jury is adequately guided by the statute.
The available statistics also compel the conclusion that prosecutorial discretion has resulted in the arbitrary imposition of the death penalty. Since 1973, there have been at least fifteen cases in Connecticut in which *307the defendant was initially charged with capital felony, but was allowed to plead guilty to a lesser crime and avoid the death penalty. This number does not include cases in which the defendant could have been charged with capital felony originally but was not. Four of the fifteen cases were factually similar to the one before us, involving murders committed in the course of a sexual assault or kidnapping.
Justice Brennan described the effects of this arbitrariness as follows: “[Discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury. The selection process for the imposition of the death penalty does not begin at trial; it begins in the prosecutor’s office. His decision whether or not to seek capital punishment is no less important than the jury’s. Just like the jury, then, where death is the consequence, the prosecutor’s discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” (Internal quotation marks omitted.) DeGarmo v. Texas, 474 U.S. 973, 975, 106 S. Ct. 337, 88 L. Ed. 2d 322 (1985) (Brennan, J., dissenting). There is no better example of such arbitrariness than this case, in which, faced with identical crimes, one prosecutor pursued and obtained the death sentence, while another was satisfied with life imprisonment. See C. Black, supra, pp. 46-53, 51 (discussing the arbitrariness inherent in the prosecutor’s decision to charge a capital offense; concluding that “within any foreseeable future, one of the absolutely crucial decisions for life or death— the decision whether to offer the defendant a chance to plead guilty to a noncapital offense—will be made administratively, on the basis of administrative discretion, without clear standards in law”).
Arbitrariness also inheres in this court’s decision to resolve this appeal before a majority of the justices of this court have had an opportunity to review the con*308stitutionality of the death penalty. Of the seven justices of the Connecticut Supreme Court, only three are qualified to sit on this case because of disqualifications by the remaining four. Of these three, only two are voting to uphold our death penalty statute. The other two judges who constitute the majority are sitting by designation of the chief justice.22
Clearly, these designated judges are as competent and capable of deciding important issues of law as the justices of the Supreme Court. The fact remains, however, that Michael Ross will be forced to undergo another death penalty sentencing hearing, and perhaps will even be executed, before a majority of the members of this court have considered the constitutionality of the death penalty. Because there are four other death penalty appeals pending before this court,23 and because a greater number of justices probably would be qualified to sit on each of these appeals, it is possible that the death penalty will eventually be ruled unconstitutional by this court24 sometime in the future. *309To me, upholding the death penalty for a particular defendant and allowing his case to move forward when a majority of the full court has not considered the constitutional issue is arbitrary and capricious. It is conceivable that Michael Ross will die, whereas the other death row inmates will be spared, because his appeal was heard first. I find this possibility unacceptable.25
Like Justice Glass, I am unwilling to tolerate “a certain amount of capriciousness in the application of the death penalty.” State v. Breton, supra, 212 Conn. 281 *310(Glass, J., dissenting). Even if a conscious effort were made to eliminate arbitrariness in the imposition of the death penalty, it simply could not be achieved. “[T]he effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether.” Godfrey v. Georgia, 446 U.S. 420, 442, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) (Marshall, J., concurring). Although I recognize that there is a degree of arbitrariness in the imposition of almost any punishment, such capriciousness cannot be tolerated when the punishment is the final and awesome one of death. In view of the arbitrariness and capriciousness that inheres in our system, we cannot reasonably rely on it to decide who should live and who should die.
4
Discrimination
A fourth factor that needs to be considered is the fact that the death penalty is imposed in a discriminatory fashion. Simply put, defendants who are convicted of murdering whites are much more likely to be sentenced to death than those convicted of murdering African-Americans. See McCleskey v. Kemp, 481 U.S. 279, 320, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (Brennan, J., dissenting) (“murder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims”). A 1990 report by the United States General Accounting Office found that “ ‘[i]n 82 [percent] of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.’ ” U.S. General Accounting Office, Death Penalty Sentencing (February 1990), quoted in Death Penalty *311Information Center, Facts About the Death Penalty (November 12, 1993) p. 2. Furthermore, although 50 percent of the murder victims in this country are African-American, 84 percent of the victims in death penalty cases are white. Death Penalty Information Center, supra.
In addition, African-American defendants are more likely to receive the death penalty than white defendants, especially where the victim is white, and poor defendants are more likely to receive the death penalty than defendants generally. K. Haas & J. Inciardi, supra, p. 18; see C. Black, supra, pp. 94-102. “The poor and the black have been the chief victims of the death penalty. ... It is the poor, the sick, the ignorant, the powerless and the hated who are executed.” A Fortas, “The Case Against Capital Punishment,” New York Times Magazine (January 23, 1977), reprinted in The Death Penalty (I. Isenberg ed., 1977) p. 122. A report issued by “the President’s Commission on Law Enforcement and Administration of Justice concluded that ‘there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups.’ The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice 143 (1967).” District Attorney for Suffolk District v. Watson, supra, 381 Mass. 668-69.
Fortunately, not enough people have been sentenced to death in Connecticut in recent years to allow this court to undertake meaningful statistical analysis. Nevertheless, the familiar patterns of discrimination are reflected in the current administration of the death penalty in Connecticut. All of the victims of the five *312defendants now on death row in Connecticut are white, and two of the five defendants are African-American.26
5
The Death Penalty Serves No Legitimate Purpose
The fifth factor to be considered is that there is simply no reason to justify the imposition of the death penalty. “Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore, the principle inherent in the [constitutional provision] that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.” Gregg v. Georgia, 428 U.S. 153, 230, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (Brennan, J., dissenting).
The death penalty does not deter crime. As Justice Marshall concluded, after reviewing the available research, there is simply no reliable evidence that capital punishment deters crime. See Gregg v. Georgia, supra, 428 U.S. 233-36 (Marshall, J., dissenting). Indeed, “[a] recent review of all post-1972 empirical studies on capital punishment identified no criminologist in the United States in the last fifteen years who *313has claimed to find data showing that the death penalty has a long-term deterrent effect greater than that exerted by lengthy imprisonment.” G. Pierce & M. Radelet, “The Role and Consequences of the Death Penalty in American Politics,” 18 N.Y.U. Rev. L. & Soc. Change 711, 715-16 (1990-91). Furthermore, “common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.” Furman v. Georgia, supra, 408 U.S. 312 (White, J., concurring).
William J. Bowers points out that “[w]e appear to be less concerned with the deliberation and premeditation of offenders than with the brutal, cruel, mindless, even irrational or spontaneous character of their crimes—suggesting that we are more serious about retribution or vengeance than about deterrence as the rationale for capital punishment.” W. Bowers, “The Effect of Executions is Brutalization, Not Deterrence,” in 24 Criminal Justice System Annuals, supra, p. 51. Retribution is not, however, a valid justification. I agree with Justice Marshall’s statement in Gregg v. Georgia, supra, 428 U.S. 240-41 (Marshall, J., dissenting), that to be constitutional, “the death penalty must ‘comport with the basic concept of human dignity at the core of the [prohibition against cruel and unusual punishment]’ . . . the objective in imposing it must be ‘[consistent] with our respect for the dignity of [other] men.’ . . . Under these standards, the taking of life ‘because the wrongdoer deserves it’ surely must fall, for such a punishment has as its very basis , the total denial of the wrongdoer’s dignity and worth.”27 (Citations omitted.)
*3146
Finality of Death
The last factor that should be considered in determining whether the death sentence is cruel and unusual punishment is the “irreversible finality of the execution of a criminal defendant . . . .” Commonwealth v. O’Neal, 369 Mass. 242, 276 n.1, 339 N.E.2d 676 (1975) (Wilkins, J., concurring). Mistakes cannot be corrected after a person is executed. A recent report documents that in the last twenty years, at least forty-eight people have been released from death row after their convictions were overturned because of significant evidence of their innocence. “Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions,” Staff Report, Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, 103d Cong., 1st Sess. p. 2 (1993). The report concludes that “[i]t is an inescapable fact of our criminal justice system that innocent people are too often convicted of crimes. Sometimes only many years later, in the course *315of a defendant’s appeals, or as a result of extra-legal developments, new evidence will emerge which clearly demonstrates that the wrong person was prosecuted and convicted of a crime. . . . Americans are justifiably concerned about the possibility that an innocent person may be executed. Capital punishment in the United States today provides no reliable safeguards against this danger. Errors can and have been made repeatedly in the trial of death penalty cases because of poor representation, racial prejudice, prosecutorial misconduct, or simply the presentation of erroneous evidence. Once convicted, a death row inmate faces serious obstacles in convincing any tribunal that he is innocent.” Id., p. 19.
I recognize that the defendant, Michael Ross, has confessed his guilt, and does not claim that he is “innocent.” This does not make the finality of the death penalty less of a concern, however. The defendant has steadfastly maintained that he was insane at the time he committed the murders, and therefore was not culpable for them. Both legally and morally, executing a person who was insane at the time he or she committed the crime would be just as wrong as executing a person who is innocent of the crime. See State v. Joyner, supra, 225 Conn. 490, 496-98 (Berdon, J., dissenting). Furthermore, even if a person who is condemned to die claims neither innocence nor insanity, there may have been errors in the penalty phase of the trial such that the death sentence should not have been imposed. Indeed, as the majority concedes, such errors occurred in this very case.
The biographer of Associate Justice Lewis F. Powell, Jr., recently disclosed that Powell confessed the decision he most regretted was his decisive vote to uphold the imposition of the death penalty on Warren McCleskey, whose appeal attacked the racial bias inher*316ent in the administration of the death penalty.28 According to his biographer, four years after his retirement from the United States Supreme Court Justice Powell said, “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” The New York Times (June 23, 1994) p. A23, col. 1. Justice Harry Blackmun also recently changed his mind about the constitutionality of the death penalty. Callins v. Collins, U.S. , 114 S. Ct. 1127, 1134, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting). While Powell’s change of heart came too late for Warren McCleskey, who died in Georgia’s electric chair on September 25, 1991; J. Jeffries, supra, p. A23, col. 1; the transformation of the thinking of these two justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty. This great difficulty, and the awesome finality that marks the execution of a defendant, are even more of a concern in this case than in most because a majority of the justices of this court are unable to participate in the decision of whether our death penalty is constitutional.29 As it currently stands, two justices of this court believe the death penalty is constitutional, one does not, and four are silent. It is entirely possible, with four other death penalty appeals pending,30 that a majority of this court will overturn the death penalty sometime in the future, but that the decision may come too late for Michael Ross.
The finality of the death penalty must be viewed in the context of what this court has done, over my dissent, to the writ of habeas corpus, which is the Great Writ of liberty. In the recent case of Summerville v. Warden, 229 Conn. 397, 431, 641 A.2d 1356 (1994), the *317majority held that a habeas petitioner who demonstrates that he or she is probably innocent is not entitled to a new trial. Although the majority refused to articulate a standard regarding the burden of proof a habeas petitioner claiming actual innocence must meet in order to obtain a new trial, all of the standards referred to in the opinion approximate the United States Supreme Court’s requirement of “a truly persuasive demonstration of actual innocence,” as articulated by a majority of that court in Herrera v. Collins, U.S. , 113 S. Ct. 853, 869, 122 L. Ed. 2d 203 (1993). See Summerville v. Warden, supra, 434.
As I demonstrated in my Summerville dissent, this standard “is simply absurd.” Id., 442. What this standard will mean is that once the three year window for bringing a petition for a new trial has closed,31 a defendant who has been convicted of a capital felony in Connecticut and sentenced to death will be able to obtain a new trial (assuming he or she is still alive) only if the defendant is able to prove that he or she is actually innocent. Therefore, our law, according to the Summerville majority and prior decisions of this court, will allow a criminal defendant to be executed even though there is a probability of his or her innocence. I do not believe that this result is acceptable to the people of Connecticut, who have always demonstrated the highest regard for the dignity of the human being, and insisted that justice be done.
The finality of the death penalty must also be considered in light of this court’s unfortunate decisions, *318over the dissents of myself and Justice Katz, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and Carpenter v. Meachum, 229 Conn. 193, 640 A.2d 591 (1994). The majority opinions in those cases held that if the habeas court denies a petition and denies the petitioner certification to appeal,32 the petitioner may not bring a writ of error to obtain appellate review of the denial of the habeas petition. As a result, habeas petitioners no longer have an unqualified right to appeal from decisions of the habeas court. See Carpenter v. Meachum, supra, 203 (Berdon, J., dissenting). The Great Writ is supposed to be a “bulwark against convictions that violate fundamental fairness,” a line of defense against any injustice that remains after direct appeals have been exhausted. (Internal quotation marks omitted.) Id., 208. By severely restricting the opportunity for appellate review of habeas corpus proceedings, the majorities in Simms and Carpenter have made it far more likely that injustices at every stage of the criminal proceedings—including in the habeas proceeding itself—will go uncorrected. I pointed out in my dissent that “the best way to expedite the business of putting people to death is to limit severely the right to appeal in habeas corpus proceedings.” Id., 206. The combination of the creation of an effective barrier to claims of actual innocence, and the elimination of the right to appeal from all claims brought in habeas corpus, will certainly result in some injustice going uncorrected.
Finally, the death penalty is too high a price to pay as retribution, especially in light of this court’s recent decisions that have all but dismantled habeas corpus. *319See id., 206-207 (Berdon, J., dissenting) (detailing the court’s restrictive interpretations of the Writ over the past three years). Even if only one innocent life is extinguished in the process of putting people to death, that one life makes the cost of the death penalty unacceptable.
C
CONCLUSION
I can only conclude, on the basis of all the factors I have considered, that the imposition of the death penalty does not comport with contemporary standards of decency and morality. The California Supreme Court and the Supreme Judicial Court of Massachusetts have reached the same conclusion; People v. Anderson, supra, 6 Cal. 3d 628; District Attorney for Suffolk District v. Watson, supra, 381 Mass. 665; and so have justices of two other high courts. State v. Kills On Top, 787 P.2d 336, 356 (Mont. 1990) (Sheehy, J., dissenting); State v. Dicks, 615 S.W.2d 126, 134 (Tenn.) (Brock, J., dissenting), cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240 (1981). Accordingly, I would hold that the death penalty is invalid under our state constitution.
II
Capital Sentencer: Who Should Live and Who Should Die
Even if I believed that our death penalty does not constitute cruel and unusual punishment, I would still agree with the defendant that our statutory scheme does not pass state or federal constitutional muster because, under it, neither the jury nor the judge is the capital sentencer. Specifically, the jury does not make the painful moral decision by explicitly setting forth in its verdict that the defendant should die, and the *320judge exercises no discretion but merely imposes the sentence according to the jury’s findings regarding the aggravating and mitigating factors.
The United States Supreme Court has held “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). The reason for this requirement is that the capital sentencer is thereby required to view its “task as the serious one of determining whether a specific human being should die at the hands of the State.” Id., 329. Requiring that, if capital punishment is to be imposed, the sentencer must specifically state that the defendant should be put to death forces the sentencer, be it jury or judge, to confront “ ‘the truly awesome responsibility of decreeing death for a fellow human [so that the sentencer] will act with due regard for the consequence of [the] decision ....’ ” Id., 329-30.
Put simply, the jury—if the jury is the capital sentencer—must realize that it is making “an individualized determination that death is the appropriate sentence for a particular defendant.” Blystone v. Pennsylvania, 494 U.S. 299, 309, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990) (Brennan, J., dissenting). The sentencer must consciously make the “judgment that death is ‘the fitting and appropriate punishment’ ” for a particular defendant. State v. Bey, 112 N.J. 123, 162, 548 A.2d 887 (1988). Toward this end, the sentencer “must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” (Internal quotation marks omitted.) Blystone v. Pennsylvania, supra, 304-305. The requirement that the *321sentencer must consider any relevant mitigating evidence “that would warrant a sentence less than death is meaningless unless the sentencer has the discretion and authority to dispense mercy based on that evidence.” Callins v. Collins, supra, 114 S. Ct. 1134 (Blackmun, J., dissenting).
Under our death penalty statute, neither the judge nor the jury is an appropriate sentencer. The trial judge is obligated to impose the death sentence; General Statutes § 53a-46a (h); or not impose the death sentence; General Statutes § 53a-46a (g); on the basis of the jury’s findings concerning aggravating and mitigating factors. The jury decides whether aggravating or mitigating factors exist, but never makes the specific moral judgment of whether the defendant should die.33 Because neither the judge nor the jury confronts “the truly awesome responsibility of decreeing death for a fellow human” under our statutory scheme, the constitutional requirement that the capital sentencer act with due regard for the consequence of its decision is not met. See Simmons v. South Carolina, U.S. , *322114 S. Ct. 2187, 2198-99, 129 L. Ed. 2d 133 (1994) (Souter, J., concurring).
In this case, the trial judge did instruct the jury that the death penalty would be imposed if it found an aggravating factor and no mitigating factor.34 While such an instruction is very beneficial, it is not a substitute for requiring the decision makers to look upon the accused—if they can35—and render a verdict that society requires that he or she be put to death. It is not enough to instruct the jury that based on its factual determinations the judge will or will not impose the death penalty, because this procedure could lead the jury to believe that there is another level of decision-making authority that will make the ultimate determination. If the ultimate punishment of death is to be inflicted, the decision makers must be fully aware that they have made the decision to inflict it, and this can be assured only if the decision makers are required to pronounce expressly a judgment of death. Indeed, in this case, the trial court underscored this deficiency in the statutory scheme by limiting counsel in their summations from explaining to the jurors the consequences of their decision on the aggravating and mitigating factors.36
*323The majority holds that our statutory scheme meets eighth amendment requirements in reliance on Blystone v. Pennsylvania, supra, 494 U.S. 299. In Blystone, the court upheld a death penalty statute that, like our own, required the jury to sentence the defendant to death if it found an aggravating factor and no mitigating factor. Nevertheless, the jury in that case was specifically required to sentence the defendant to death. Id., 302; see also Commonwealth v. Peterkin, 511 Pa. 299, 306, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S. Ct. 962, 93 L. Ed. 2d 1010 (1987) (jury determines whether defendant should be sentenced to death); Commonwealth v. Blystone, 519 Pa. 450, 475, 549 A.2d 81 (1988), aff'd, Blystone v. Pennsylvania, supra, 494 U.S. 299. Indeed, Pennsylvania requires the jury in a capital case to answer a special interrogatory that reads: “We the jury unanimously sentence the defendant to: _ death _ life imprisonment.” See Zettlemoyer v. Fulcomer, 923 F.2d 284, 308 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d. 232 (1991). Because the Pennsylvania statutory scheme reviewed in Blystone v. Pennsylvania, supra, 494 U.S. 299, did not end the jury’s function with a finding concerning aggravating and mitigating factors, but instead also required the jury to make the specific judgment of whether the defendant should live or die, Blystone does not control our decision.
*324III
Guilt Phase: Adverse Inference from Failure to Call Witnesses
In regard to the guilt phase of the defendant’s trial, I believe the trial court committed harmful error by instructing the jury that it could draw an adverse inference from the defendant’s failure to call as witnesses Howard Zonana, a psychiatrist, and Bruce Freedman, a psychologist, both of whom the defendant had consulted regarding his insanity defense (missing witness instruction). Although this court authorized missing witness instructions generally in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), I believe that the giving of such an instruction under the circumstances of this case constituted reversible error.
The trial court instructed the jury, in part, concerning these missing witnesses as follows: “[I]f a party has failed to call to the stand a witness who is within his power to produce and who would naturally have been produced by him, you may infer that the testimony of the witness would have been unfavorable to the party failing to call him and consider that fact in arriving at your decision. There are two requirements: One, the witness must be demonstrated by the evidence to be available; two, the witness must be a witness whom the party would naturally produce.”37 At trial, ample evi*325dence was introduced to support a jury finding that both requirements had been met with regard to the mental health professionals who did not testify, including evidence introduced by the state specifically for this purpose.
As the majority acknowledges, in State v. Toste, 178 Conn. 626, 628, 424 A.2d 293 (1979), we held that where a psychiatrist or psychologist “is retained by a criminal defendant or by his counsel for the sole purpose of aiding the accused and his counsel in the preparation of his defense, the attorney-client privilege bars the state from calling the expert as a witness. The fact that the psychiatric expert was appointed by the court *326rather than employed by the defense is irrelevant; the law affords no lesser protection for a defendant who is indigent than for one with means to retain his own psychiatrist to prepare a defense. This rule is consistent with a majority of jurisdictions who have resolved this issue.”
The majority suggests, without deciding the issue, that the state may destroy the privilege through the back door by obtaining a missing witness instruction. In other words, although communications between a defendant and the psychiatrist are privileged, the state may obtain, as it did in this case, an instruction permitting the jury to draw an adverse inference if the defendant does not call the psychiatrist as a witness.
I am troubled by the fact that the majority does not decide whether the giving of the missing witness instruction was error, although it suggests that the instruction may have been appropriate. I believe that this issue should be reached. It was appropriately raised by the defendant and fully briefed by the parties. Furthermore, this issue: (1) goes to the heart of the only defense asserted by the defendant in the guilt phase of his trial; and (2) is crucial to our jurisprudence, not only in regard to the privilege for communications between a defendant and his psychiatrist, but in regard to other privileges as well.
I believe that interpreting a privilege to allow such a missing witness instruction effectively annuls the privilege. “Where [a] privilege has been exercised, the established principle which permits an inference that the excluded testimony would be unfavorable to the party who suppressed it ought to yield, as being inconsistent with the full exercise of the privilege.” Bisno v. United States, 299 F.2d 711, 723 (9th Cir. 1961) (Hamley, J., concurring), cert. denied, 370 U.S. 952, 82 S. Ct. 1602, 8 L. Ed. 2d 818 (1962); see also State *327v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979); Daniels v. Beeson, 312 So. 2d 441 (Miss. 1975); George v. State, 98 Nev. 196, 644 P.2d 510 (1982).
The majority claims that this court “[has] in fact applied the Secondino [missing witness] rule in a number of contexts despite the possible existence of a privilege restricting the applicability of the rule.” This statement is misleading because the cases cited by the majority do not support the giving of a missing witness instruction over a claim of privilege. In Secondino v. New Haven Gas Co., supra, 147 Conn. 676, this court did hold that a missing witness instruction was appropriate where the plaintiff in a personal injury case failed to call her treating physician as a witness. The majority neglects to mention, however, that Connecticut did not recognize a privilege for physician-patient communications until 1990, thirty years after Secondino was decided. See General Statutes § 52-146o; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 12.8.1, p. 455, and (1993 Sup.) § 12.8.1, p. 168. Therefore, there was no privilege at issue in that case. The same is true of State v. McLaughlin, 126 Conn. 257, 10 A.2d 758 (1939), in which this court rejected the defendant’s claim that the trial court had improperly allowed the state to comment on the failure of the defendant’s wife to testify. The defendant never asserted the privilege for marital communications. To the contrary, the defendant’s claim was predicated on the trial court’s refusal to grant a one day continuance so that his wife would be available to testify. Id., 260-61. Finally, in D’Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984), a habeas corpus case, the plaintiff claimed before the trial court that his guilty pleas should be vacated because he had been given an “erroneous impression” concerning the maximum sentence he could be given if convicted. The trial court rejected this claim, relying, in part, on the plaintiff’s failure to call his trial *328attorney as a witness. Id. The attorney-client privilege is not even mentioned in the opinion. Moreover, because the competence of the plaintiffs attorney was “implicitly under attack”; id.; D’Amico resembles a case in which the client and his or her attorney are involved in a lawsuit and the privilege does not apply. See C. Tait & J. LaPlante, supra, (2d. Ed 1988) § 12.5.7, p. 448. Finally, any suggestion in D’Amico that the inference may be drawn is pure dicta because the D’Amico court held that the two prerequisites for a missing witness instruction had not been met.38 Indeed, the majority concedes that not one of these cases explicitly considers the relationship between a missing witness instruction and the attorney-client privilege.
Furthermore, allowing a missing witness instruction under the circumstances of this case flies in the face of reason. In order to avoid the adverse inference raised by the missing witness instruction, the defendant must call the psychiatrist as a witness. This places the defendant in a “Catch-22” position: he is damned if he calls the witness because he loses the privilege as a result of the psychiatrist’s testimony, and damned if he does not call the witness because he loses the privilege when the jury is instructed that it may draw an adverse inference.
The amicus brief filed by five forensic psychiatrists39 who practice and teach in Connecticut cogently points *329out the importance of this issue to the truth-seeking function of a psychiatric examination.40 This issue is also critical to the truth-seeking function of a trial: “[A] prosecutor should [not] be allowed to cast aspersions on a defendant’s insanity defense simply by pointing out that a particular psychiatrist . . . was not called. To do so would encourage defense attorneys to seek out psychiatric witnesses who have come to be associated with the defense in such proceedings and not risk having their clients examined by persons who have either not testified in previous cases or who have testified on different occasions for the prosecution and defense. . . . [T]his would detrimentally affect the truth-finding function of a trial by virtually eliminating from the process those expert witnesses most likely to be impartial.” People v. Pate, 108 Mich. App. 802, 808, 310 N.W.2d 883 (1981).
The majority’s suggestion that a missing witness instruction may be needed in order to afford the state a fair opportunity to respond to an insanity defense ignores the arsenal of weapons that already are available to the state for this purpose. See, e.g., Practice Book § 758 (requiring the defendant to notify the state that he or she intends to rely on the defense of mental disease or defect); Practice Book § 759 (requiring the defendant to notify the state that he or she intends to introduce expert testimony concerning a mental dis*330ease or defect, and to disclose any reports of mental examinations); Practice Book § 760 (requiring the defendant to submit to a psychiatric examination); Practice Book § 761 (authorizing the court to exclude expert testimony if the defendant fails to comply with §§ 759 and 760); see also State v. Manfredi, 213 Conn. 500, 517, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990) (trial court may order a defendant to submit to a psychiatric examination even before the defendant asserts an insanity defense). Most important, the state is not required to prove that the defendant was sane when he or she committed the crime. Instead, under General Statutes §§ 53a-12 and 53a-13, the defendant must prove lack of capacity by a preponderance of the evidence.
In any case, the majority concludes that the defendant was not harmed by the missing witness instruction because: (1) the jury learned that the defendant had been evaluated by Zonana and Freedman through the cross-examinations of Walter Borden and John Cegalis, the two psychiatrists who were called by the defendant; and (2) the testimony of Borden and Cegalis that the defendant suffered from a mental disease was weakened by the state’s vigorous cross-examination. Neither of these reasons makes sense.
First, any weakening of the testimony of Borden and Cegalis is irrelevant to the question of harm unless the testimony was rendered insufficient as a matter of law to support the defendant’s insanity defense. Barring insufficiency, which has not and could not be claimed in this case, it was the jury’s function as fact finder to evaluate this testimony and determine whether the defendant had proven his defense. During this process of evaluation, the adverse inference from the missing witness instruction necessarily weighed against the defendant, who had the burden of proof. Indeed, the fact that the defendant’s case had been weakened by *331cross-examination necessarily magnified the importance of the inference in this weighing process, making it more—not less—harmful.
Second, the fact that the jury already knew that the defendant had been evaluated by Zonana and Freedman does not render the instruction harmless. In Shel-nitz v. Greenberg, 200 Conn. 58, 75-76, 509 A.2d 1023 (1986), this court recognized, in the context of a missing witness instruction, that “[w]hat the jury may infer, given no help from the court is one thing. What it may infer when the court solemnizes the silence . . . into evidence ... is quite another.” (Internal quotation marks omitted.)41 The requirements for a missing witness instruction must be strictly complied with because of “the potentially critical effect of such an inference” on the jury. Fontaine v. Coyle, 174 Conn. 204, 212, 384 A.2d 616 (1978). Improperly instructing the jury that it may draw an adverse inference is harmful error. Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975).
Furthermore, as the majority points out, all that the jury could glean from the cross-examinations of Borden and Cegalis are: (1) that Zonana had examined the defendant; (2) that Freedman disagreed with Borden’s diagnosis of sexual sadism because Freedman believed that the defendant suffered from “intermittent explosive disorder”; and (3) that Freedman found that the defendant did not suffer from psychotic think*332ing and knew what he was doing when he killed the victims. This evidence falls short of establishing the adverse inference that was permitted by the instruction, that is, “that the testimony of [both witnesses] would have been unfavorable to the [defendant]” on the ultimate issue of insanity. Most important, the majority completely ignores the fact that there was nothing in the evidence before the jury to suggest that Zonana’s testimony would have been unfavorable to the defendant.
Moreover, immediately before he gave this instruction, the trial judge emphasized its importance. After directing the jury’s attention to Zonana and Freedman by name, he stated: “Listen carefully to this. It’s not a very usual or an easy concept.” (Emphasis added.) Furthermore, the trial judge permitted the state to highlight the absence of these two witnesses and the inference to be drawn therefrom during closing arguments, an opportunity that the state exploited very well.42
*333The instruction must be viewed as even more harmful in light of the facts that: (1) in the guilt phase of the trial, insanity was the defendant’s only defense, he having admitted to sexually assaulting and killing the victims; and (2) the state did not itself present any evidence concerning the defendant’s mental capacity to commit the crimes charged. The majority claims that it does “not dismiss lightly the defendant’s claim” with regard to the missing witness instruction. Nevertheless, the adverse inference may very well have been the determining factor in the jury’s rejection of the defendant’s insanity defense. Therefore, while the majority may not dismiss the defendant’s claim lightly, it has allowed the trial court effectively to deprive the defendant of an insanity defense by giving the missing witness instruction.
Giving the state the benefit of a missing witness instruction must also be viewed in the context of this court’s ruling, over my dissent, that a defendant bears the burden of proof on the issue of insanity. See State v. Joyner, supra, 225 Conn. 450. Placing the burden of proof on the defendant concerning the insanity evidence he presents, while permitting an adverse inference against the defendant for the evidence he does not present, will have a devastating effect on the administration of justice. It will greatly increase the chances that a person who commits a crime as a result of men*334tal illness will be incarcerated, or even executed, even though the person lacked the requisite culpability. This is not very far removed from the execution of minors; see Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989); or the mentally retarded. See Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). Although executing people with diminished mental capacity may pass federal constitutional muster, it “fails measurably to serve the goals of capital punishment” and therefore “is ‘nothing more than the purposeless and needless imposition of pain and suffering.’ ” Stanford v. Kentucky, supra, 405 (Brennan, J., dissenting).
IV
Summary
After fully exploring the subject of the death penalty, I can come to only one conclusion—that the death penalty fails to comport with contemporary standards of decency and morality. Not only does the death penalty degrade the individuals who are sentenced to die, but it also degrades and dehumanizes a society that permits it to be imposed, calling into question the morality of every one of us.
“There is little doubt that life is a fundamental right explicitly or implicitly guaranteed by the Constitution. San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34 [93 S. Ct. 1278, 36 L. Ed. 2d 16] (1973) . . . .” (Internal quotation marks omitted.) District Attorney for Suffolk District v. Watson, supra, 381 Mass. 663. No other right is more precious; indeed, it is the one right that brings everyone, rich and poor, down to a common denominator. Even if the state imposes the death penalty on only the most wicked among us, all of our lives are cheapened when a human being is executed.
*335I would hold that the death penalty statute is unconstitutional, and that the trial court committed harmful error in instructing the jury, during the guilt phase of the defendant’s trial, that it may draw an unfavorable inference from the defendant’s failure to call as witnesses a psychiatrist and a psychologist with whom he consulted concerning his insanity defense.
Accordingly, I respectfully dissent.
agree with the conclusion reached in part I A of the majority opinion that the state had jurisdiction to try the defendant for the murders of *287April B. and Leslie S. that occurred in Rhode Island. I do not reach any additional issues that are not discussed in this dissent.
This issue is discussed in part III of this dissent.
In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the United States Supreme Court “effectually invalidated our previous death penalty statutes as violative of the federal constitution.” State v. McGann, 199 Conn. 163, 174, 506 A.2d 109 (1986).
See State v. Breton, supra, 212 Conn. 258; State v. Daniels, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); State v. Daniels, 207 Conn. 374, 542 A.2d 306 (1988).
Prior to the adoption of our first formal constitution in 1818, Connecticut had an informal constitution, consisting of “the Charter of 1662, certain locally derived common law principles and practices, some locally applicable English common law, various significant statutes, and most importantly, the Fundamental Orders of 1639.” C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 89-90 (1982).
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law.”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
According to Swift, by 1796, only seven crimes—treason, murder, rape, bestiality, sodomy, aggravated mayhem, and arson that endangers life— were punishable by death in Connecticut. 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 296. Furthermore, this list was diminished in subsequent years. By 1818, when the state constitution was adopted, bestiality and sodomy were no longer punishable by death. 2 Swift’s Digest, supra, pp. 264, 292-94, 304. In 1830, the legislature removed rape and aggravated mayhem from the list of capital offenses, and reduced arson to a noncapital offense except in cases where death resulted. General Statutes (1835 Rev.) tit. 21, c.1, §§ 1-13, 156, pp. 119-21, 158.
It is ironic that while the majority upholds the death penalty, it would surely strike down the alternative punishment available at the time our constitution was adopted that Swift believed was less severe than the “dreadful punishment of death”—hard labor—as cruel and unusual punishment. The hard labor that Justice Swift referred to was confinement in Old New-Gate Prison. 2 Swift’s System, supra, p. 296. New-Gate, which became the state prison of Connecticut in 1790, was “improvised . . . out of certain copper mines at Simsbury.” L. Friedman, Crime and Punishment in American History (1993) p. 78. New-Gate “was, by all accounts, a horrendous dungeon, a dark- cave of horrid gloom. The dripping water trickling like tears from its sides; the unearthly echoes, all conspired to strike an observer aghast with amazement and horror. The prisoners were heavily ironed and secured by fetters; they ate pickled pork for dinner, while working at forges; a piece for each [was] thrown on the floor and left to be washed and boiled in the water used for cooling the iron wrought at the forges.” (Internal quotation marks omitted.) Id. This punishment would not be acceptable or even constitutional, in modern times, in any state of our nation.
For example, the following account appeared in the Washington Post newspaper one decade ago: “A minute after 11 last night, a chorus of long, anguished wails erupted from the hundreds of prisoners inside the walls of the Virginia State Penitentiary. Outside the aging prison, a jeering mob set off fireworks in celebration. Across the street, a somber group of death penalty opponents began a silent candlelight vigil.
“They needed no announcement. All knew it was over: Linwood E. Briley, who had killed seven people, had been electrocuted.
“Deborah Wyatt, Briley’s 35-year-old Charlottesville attorney, left the prison glassy-eyed and trembling after witnessing the execution of the man she spent more than a year trying to save. She strode into the taunting crowd, past the Confederate flag, past the yells of ‘Bum, baby, burn’ and slipped into her car.
“For her, it was the bitter end to a prolonged legal battle capped by panicked, desperate appeals to Gov. Charles S. Robb in the 24 hours leading *297up to the execution. For others, the final hours passed less frantically, but in the last moments there were outbursts of emotions.
“There were the vengeful voices of the men screaming ‘Fry ’im. Fry Briley.’ There was pain reflected in the eyes of those like Marie Deans, who has dedicated her life to a crusade against capital punishment.” M. Moore & S. Sugawara, “Sorrowful, Satisfied Crowds Greet Briley Execution in Va.,” Wash. Post, October 14, 1984, p. A1.
The following is a description of death by electrocution: “Electrocution produces visibly destructive effects as the body’s internal organs are burned; the condemned prisoner often leaps forward against the restraining straps when the switch is thrown; the body changes colour; the flesh swells and may even catch fire; the prisoner may defecate, urinate or vomit blood. Eye-witnesses always report that there is a smell of burned flesh.” Amnesty International, supra, p. 114.
Ellen Goodman, a syndicated columnist, has described death by lethal injection as follows: “The descriptions of his death were graphic enough. James David Autry, murderer, was strapped in a gurney in a Texas death chamber. From behind a wall lethal chemicals were injected into tubes that led to his body. As the drugs took effect, Autry began twitching, his knees jerked up. He grunted a bit and sighed. His stomach began to expand. He winced. His eyes looked cloudy. Then he was dead.” E. Goodman, “Tuning Out TV Executions,” Boston Globe, March 20, 1984. An edited version of this article also appeared in the Hartford Courant. E. Goodman, “Executions: Are They to Become the Next Televised Spectacular?” Hartford Courant, March 20, 1984, p. B9.
In Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 (1947), the United States Supreme Court held that Louisiana could constitutionally execute Willie Francis, even though the first attempt to electrocute him had been bungled. Justice Burton’s dissent includes several eyewitness descriptions of Francis during the bungled attempt. Id., 480 n.2 (Burton, J., dissenting).
In his concurring opinion in District Attorney For Suffolk District v. Watson, supra, 381 Mass. 677-78, Justice Liacos furnished a vivid example of the psychological trauma suffered by a condemned prisoner whose death sentence was commuted at the last minute: “For over two years, Henry Arsenault lived on death row feeling as if the Court’s sentence were slowly being carried out. Arsenault could not stop thinking about death. Despite several stays, he never believed he could escape execution. There was a day to day choking, tremulous fear that quickly became suffocating. If he slept at all, fear of death snapped him awake sweating. His throat was clenched so tight he often could not eat. His belly cramped, and he could not move his bowels. He urinated uncontrollably. He could not keep still. And all the while a guard watched him, so he would not commit suicide. The guard was there when he had his nightmares and there when he wet his pants. Arsenault retained neither privacy nor dignity. Apart from the guards he was alone much of the time as the day of his execution neared.
“And on the day of the execution, after three sleepless weeks and five days’ inability to eat, after a night’s pacing the cell, he heard the warden *300explain the policy of the Commonwealth—no visitors, no special last meal, and no medication. Arsenault asked the warden to let him walk to the execution on his own. The time came. He walked to the death chamber and turned toward the chair. Stopping him, the warden explained that the execution would not be for over an hour. Arsenault sat on the other side of the room as the witnesses filed in behind a one-way mirror. When the executioner tested the chair, the lights dimmed. Arsenault heard other prisoners scream. After the chaplain gave him last rites, Arsenault heard the door slam shut and the noise echoing, the clock ticking. He wet his pants. Less than half an hour before the execution, the Lieutenant Governor commuted his sentence. Arsenault’s legs would not hold him up. Guards carried him back to his cell. He was trembling uncontrollably. A doctor sedated him. And he was moved off death row.” (Internal quotation marks omitted.)
Justice Liacos summarized it as follows: “The raw terror and unabating stress that Henry Arsenault experienced was torture; torture in the guise of civilized business in an advanced and humane polity. This torture was not unique, but merely one degrading instance in a legacy of degradation. The ordeals of the condemned are inherent and inevitable in any system that informs the condemned person of his sentence and provides for a gap between sentence and execution. Whatever one believes about the cruelty of the death penalty itself, this violence done the prisoner’s mind must afflict the conscience of enlightened government and give the civilized heart no rest.” Id., 678-79.
“A century-old passage from Dostoevsky’s The Idiot gives a towering yet touching indication of the cruelty of capital punishment: ‘But the chief and worst pain may not be in the bodily suffering but in one’s knowing for certain that in an hour and then in ten minutes, and then in half a minute, and then now, at the very moment, the soul will leave the body and that one will cease to be a man and that that’s bound to happen; the worst part of it is that it’s certain. ... To kill for murder is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by brigands. Anyone murdered by brigands, whose throat is cut at night in a wood, or something of that sort, must surely hope to escape till the very last minute. . . . But in the other case (execution) all that last hope, which makes dying ten times as easy, is taken away for certain. There is the sentence, and the whole awful torture lies in the fact that there is certainly no escape, and there is no torture in the world more terrible. . . .’ ” G. Gottlieb, “Testing the Death Penalty,” 34 S. Cal. L. Rev. 268, 272 n.15 (1961).
To the contrary, it is less humane, because capital punishment “ ‘is ... the most premeditated of murders, to which no criminal’s deed, however calculated . . . can be compared .... For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date on which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.’ ” A. Amsterdam, “Capital Punishment,” The Stanford Magazine, Fall/Winter 1977, pp. 42-47, reprinted in The Death Penalty in America (H. Bedau ed., 3d Ed. 1982) p. 348, quoting A. Camus.
Even public opinion polls demonstrate public reluctance and concern over the imposition of the death penalty. While a majority of the public *302may support the death penalty in the abstract, public support for the penalty drops to below 50 percent when alternative sentences are considered. Given the choice, more people would support life imprisonment without parole plus restitution to the victim’s family over the death penalty. In addition, many people have significant doubts about various aspects of the death penalty. Fifty-eight percent of those surveyed in an April, 1993 poll were concerned about the danger of executing innocent people. Forty-eight percent were concerned about racism in the application of the penalty, and another 42 percent had doubts about the ability of the death penalty to deter crime. Death Penalty Information Center, Facts About The Death Penalty (November 12, 1993) p. 4, citing a Greenberg/Lake and Torrance Group National Poll of April, 1993.
Indeed, polling data indicate that the public’s opinion on the imposition of the death penalty would be significantly influenced if they were informed of the alternative sentence that can be imposed. A poll referred to in a recent United States Supreme Court case indicated the following: “More than 75 percent of those surveyed indicated that if they were called upon to make a capital-sentencing decision as jurors, the amount of time the convicted murderer actually would have to spend in prison would be an ‘extremely important’ or a ‘very important’ factor in choosing between life and death.” Simmons v. South Carolina, U.S. , 114 S. Ct. 2187, 2191, 129 L. Ed. 2d 133 (1994) (citing a statewide public opinion survey conducted by the University of South Carolina’s Institute for Public Affairs). If the penalty of death were declared unconstitutional, the alternative sentence in Connecticut that would be in place for the conviction of a capital felony under General Statutes § 53a-54b would be “a sentence of life imprisonment without the possibility of release. ” (Emphasis added.) This simply means life imprisonment without the possibility of parole or pardon.
Apparently, perhaps due to evolving standards of decency, by 1818 even England was reducing its number of capital offenses. As noted previously, Swift had estimated the number at 241 when he wrote his System of the Laws of the State of Connecticut in 1796.
See Amnesty International, supra, p. 228 (listing nations that have abolished the death penalty).
See W. Maltbie, “The Unconstitutional Period of Connecticut History,” 14 Conn. B.J. 22, 24 (1940) (Connecticut’s Fundamental Orders of 1638 were the first written constitution known to history).
These groups are American Friends Service Committee of the Religious Society of Friends (Quakers) in America, Amnesty International, Capitol Region Conference of Churches, Caucus of Connecticut Democrats, Connecticut Association for Human Services, Connecticut Chapter of the National Association of Social Workers, Connecticut Citizens for Humanizing Criminal Justice, Connecticut Civil Liberties Union Foundation, Connecticut Conference of the United Church of Christ, Connecticut Network to Abolish the Death Penalty, Episcopal Diocese of Connecticut, Hartford Monthly Meeting of the Religious Society of Friends, Inside-Out: Citizens United for Prison Reform, National Association for the Advancement of Colored People, Office of Urban Affairs of the Archdiocese of Hartford, and the Peace and Justice Committee of the Presbyterian Church of Southern New England.
General Statutes § 53a-35b provides that “[a] sentence of imprisonment for life shall mean a definite sentence of sixty years . . . ."
Pursuant to General Statutes § 51-207 (b), the chief justice of the Supreme Court may appoint one or more judges to sit on a case if less than five Supreme Court justices are available. This statute provides in relevant part: “If any judge is absent and [the right to a five member court] is claimed or if any judge is disqualified and the absence or disqualification is not waived or if the business before the court requires it, the chief justice . . . may summon the sixth or seventh member, or both, of the supreme court or one or more of the judges of the superior court to constitute a full court, who shall attend and act as judges of the supreme court for the time being.”
I note that the following death row defendants have had appeals pending in this court since the dates indicated: Robert Breton, Sr., November 20, 1989; Sedrick Cobb, October 11, 1991; Daniel Webb, November 8, 1991; and Terry Johnson, June 30, 1993.
General Statutes § 51-199 provides in relevant part: “(a) The supreme court shall have final and conclusive jurisdiction of all matters brought before it according to law, and may carry into execution all its judgments and decrees and institute rules of practice and procedure as to matters before it.
“(b) The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender *309status, for which the maximum sentence which may be imposed exceeds twenty years; (4) review of a sentence of death pursuant to section 53a-46b
In addition, General Statutes § 53a-46b provides: “REVIEW OF DEATH SENTENCE. (a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(c) The sentence review shall be in addition to direct appeal and, if an appeal is taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed and the validity of the sentence.”
I also find this possibility unnecessary. Barring objection by the defendant or good cause shown by the state, there is no reason that this appeal could not have been delayed until one of the other appeals, on which a greater number of the justices of this court would be qualified to sit, became ready for argument. Accordingly, this court should have given Michael Ross an opportunity to be heard, at an open hearing before the court and with all parties present, as to whether he had any objection to such a delay. Indeed, it seems to me that it would be cruel and unusual punishment to affirm his convictions, uphold the death penalty, and put him through the ordeal of another death penalty sentencing trial when a majority of the justices of this court have yet to vote on the constitutionality of the death penalty.
It is important to note that the threat of discriminatory application of the death penalty is not limited to conscious discrimination. “[W]here standardless ‘discretion’ plays a part, or where close decisions of fact must be made on disputed evidence, or where vague and ambiguous concepts . . . must be applied to concrete facts, we are one and all susceptible to the tendency to see things in a better or worse light depending on our general sympathies; we fight against this, but in the end only the self-deluding think they can wholly avoid it. If this idea is right, then there is the ever-present danger that anyone against whom, for any reason, conscious or unconscious prejudice exists will come off worse than a person against whom such feeling does not exist. And of course the unconscious prejudice, the prejudice one thinks one has wholly overcome, is the more dangerous.” (Emphasis in original.) C. Black, supra, pp. 100-101.
The financial aspects of a punishment have little meaning to me when life is at stake. Nevertheless, I suppose that there are some supporters of the death penalty who argue that their tax dollars should not be spent to *314keep convicted murderers alive. Of course, the real answer to this argument is that even a convicted murderer is a living human being. In terms of the financial aspects, the most comprehensive study in the country found that the death penalty costs $2 million more per execution than a nondeath penalty murder case with a sentence of life imprisonment. Death Penalty Information Center, supra, p. 4 (citing a May, 1993 study by Duke University); see also B. Nakell, “The Cost of the Death Penalty,” Criminal Law Bulletin, January/February 1978, pp. 68-80, reprinted in The Death Penalty in America (H. Bedau ed., 3d Ed. 1982) p. 241 (a criminal justice system that includes capital punishment “is considerably more expensive than a criminal justice system without capital punishment”); Amnesty International, supra, p. 170 (death penalty cases “cost far more than ordinary criminal proceedings in terms both of time and money”). It costs the state of Connecticut approximately $20,000 per year to keep a person incarcerated. See Johnson v. Meehan, 225 Conn. 528, 556 n.8, 626 A.2d 244 (1993) (Berdon, J., dissenting). The interest earned on the extra $2 million in costs identified by the Duke study would more than pay for a defendant’s costs of incarceration, and indeed would probably fund the annual cost of confining five people.
McCleskey v. Kemp, supra, 481 U.S. 279.
See part I B 3.
See footnote 23.
General Statutes § 54-95 (a) provides in relevant part: “Any defendant in a criminal prosecution, aggrieved by any decision of the superior court, upon the trial thereof, or by any error apparent upon the record of such prosecution, may be relieved by appeal, petition for a new trial or writ of error . . . .”
General Statutes § 52-582 provides that “[n]o petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of.”
General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”
The end product of the jury’s deliberations in this case on one of the counts, in accordance with the statute, was the following special verdict form, the format of which was identical to that used for the other counts:
“SPECIAL VERDICT: EXISTENCE OF AGGRAVATING FACTOR
question: Has the State of Connecticut proved beyond a reasonable doubt that the Defendant, Michael Bruce Ross, in the commission of the crime of ‘Murder in the course of kidnapping’ in connection with the death of Wendy B., committed the offense in an especially heinous, cruel, or depraved manner?
answer: X_YES
_no
SPECIAL VERDICT: EXISTENCE OF MITIGATING FACTOR
question: In connection with the death of Wendy B., has the Defendant, Michael Bruce Ross, proved by a fair preponderance of the evidence, a mitigating factor?
ANSWER: _YES
X__no”
The trial judge instructed the jury as follows: “[I]f the jury finds that one or more of the aggravating factors exists and that no mitigating factor exists, the Court shall sentence the defendant to death.
“If the jury finds that none of the aggravating factors set forth exist or that one or more of the mitigating factors exist, the Court shall impose a sentence of life imprisonment.”
Anthony Amsterdam reports, on the basis of his own experience representing people charged with capital crimes: “The jury hears evidence and votes; and you can always tell when a jury has voted for death because they come back into court and they will not look the defendant or defense counsel in the eyes.” A. Amsterdam, “Capital Punishment,” The Stanford Magazine, Fall/Winter 1977, reprinted in The Death Penalty in America (H. Bedau ed., 3d Ed. 1982) p. 347.
In regard to final argument, the trial court repeatedly cautioned counsel for the defendant to avoid emotional arguments concerning the ultimate *323effect of the jury’s decision, and stated that “[i]f you get into that area, I will intrude.” “I don’t want emotional pleas to the jury about the irreversible step of their decision and threatening them as citizens of this state. That shouldn’t be done. If it’s a calm, cool approach to the function they have, the law I will give them. I don’t bar you from mentioning it, but to continually bring this to their minds in an attempt to be emotional about it . . . it isn’t going to happen.” “I am just warning you not to do it. It’s a sensitive area, and I think the legislature developed this statute for the very reason that the jury isn’t to get involved. It was to remove from the jury the question of the ultimate penalty. They were to decide facts, mitigating and aggravating; and so bo it in regard to how they decide it.”
The trial court elaborated on the missing witness instruction as follows: “So you have to determine those two threshold factors. Availability, naturally produced by whom. Now in that regard, you have to consider all the evidence in the case bearing on what is the probability, the naturalness of producing that witness.
“Whether the witness was available is a question of fact for you to determine before you draw an adverse inference from the absence of such a witness. Availability may be shown or determined not only from mere physical presence or accessibility for service, but also from the relationship, the usefulness or nature of the expected testimony, and this means only that the *325witness [is] in such a relationship with a party, state or the accused, that [it] is likely that his presence would be procured.
“A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues or both, could reasonably be expected to have a peculiar or superior information material to the case which if favorable the party would have produced.
“As with the question of availability, it is for you to determine from the evidence presented whether the absent witness’s testimony would be material or substantial to the case before you may draw an adverse inference.
“He has to be available. One, must be a witness whom the party would naturally produce; and your view of the entire evidence as it relates to that witness’s name is whether you have a basis to conclude that the evidence they would have had would be peculiar or superior, substantial or material to the case.
“So unless you have the threshold questions decided that there is availability and there is a naturalness to one or another party producing him, you should not draw the inference that what they would have said would have been favorable to the party that you would have expected to call them.
“The failure of a party to call a witness who is available to both parties and does not stand in such a relationship to the party or issues so that the party would naturally be expected to produce him if his testimony was favorable, affordfs] no basis for an unfavorable inference.
“Converse. The failure of a party to call—the failure of a party to call a witness who is available to both sides and who does not stand in your judgment in such a relationship to the party in question or to the issues so that the party would naturally be expected to produce him, if his testimony was favorable, afford[s] no basis for an unfavorable inference. That’s so even though availability is established and equally available to both sides.”
The court held: “We have serious reservations as to whether such an inference can be justified, because an attorney, whose competence is implicitly under attack in a habeas corpus proceeding, as in this case, is hardly a witness whom a disgruntled client would ‘naturally’ have produced. ... In any event, the principle is inapplicable for the reason that there is nothing in the record to indicate the availability of the ‘missing’ witness, an essential prerequisite.” (Citations omitted.)D’Amico v. Manson, supra, 193 Conn. 153.
The amicus brief was filed by the following psychiatrists: Ezra E.H. Griffith, M.D.; Harold I. Schwartz, M.D.; Peter M. Zeman, M.D.; Kenneth M. Selig, M.D., J.D.; and John H. Felber, M.D., J.D.
The brief states in part: “In order to be of assistance to the defense in evaluating the basis for a psychiatric defense, an accurate and detailed diagnosis of a defendant’s mental condition must be performed. Such a diagnosis requires the development of a relationship of trust between the consulting psychiatrist and the defendant, in which the defendant feels free to provide full and open disclosure of his history and thought processes. If the outcome of a psychiatric examination sought by the defense may be used against a defendant at trial—whether through direct testimony or through an adverse inference drawn from the defendant’s failure to call the expert—the truth seeking function of the examination is likely to be inhibited.”
This precise point was underscored by the Supreme Court of the United States in Boyde v. California, 494 U.S. 370, 384, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). In comparing the relative impact that argument of counsel and the instructions of the trial court have on the jury, the court stated: “[Arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence . . . and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” (Citation omitted.) Id.; Simmons v. South Carolina, supra, 114 S. Ct. 2198-99 (Souter, J., concurring).
The state argued the following: “Two other persons I want to mention. Dr. [Zonana], My recollection is the information before you is that he ordered either the EEG or the CAT scan on February 22, 1985. Dr. Borden told you that Dr. Howard [Zonana] is a psychiatrist in New Haven, he’s a forensic psychiatrist. I think he also said he’s board certified, but I’m not certain of that. Where is Dr. Howard [Zonana]?
“Dr. Freedman, Dr. Bruce Freedman—incidentally, I submit the State can establish that Dr. [Zonana] was available, through the inspector, the officer from New Haven. Where is Dr. Bruce Freedman, the psychologist who first saw the defendant Michael Ross? Why isn’t he here to testify to this jury to let you know what his findings are? My recollection is that Dr. Borden acknowledged on cross-examination that Dr. Freedman’s diagnosis was somewhat different from theirs. I’m not sure of that, but I think that was elicited.
“Be that as it may, if Dr. [Zonana] could help the defendant, he would be here to testify. I submit to you, if Dr. Freedman by reason of his examinations could help the defendant, he also would be here to testify.
“Their failure to be here may be taken into account by you in your deliberations; although frankly, I don’t really think it’s necessary because I do think that the testimony of Dr[s]. Borden and Cegalis is sufficient for you *333tó conclude that this defendant suffers from no legal insanity as it will be defined to you by Judge Ford.
“The excuse given for not calling Dr. Freedman. I don’t remember Dr. Borden saying that I asked Dr. Freedman to do one thing for me and/or two things and he only did one thing. I don’t remember him saying I called him back and said aren’t you going to do these other tests or anything of that nature. My recollection was that apparently Dr. Freedman came up with a diagnosis—I think he testified to it—I think I asked him intermittent explosive disorder. The diagnosis is different from Dr. Borden. And that’s why they went to Dr. Cegalis, because Dr. Freedman was not going to support the theory that Dr. Borden wanted to present to this jury.”