Senior Assistant State’s Attorney Terence Mariani has been cited in the past for what appellate judges considered prosecutorial impropriety. Typically, the complaints have focused on Mariani’s efforts to appeal to jurors’ emotions. In a 2001 case, Mariani told jurors that they would have a much different perception of how dangerous the defendant was "if I loaded that gun and shut out the lights in this courtroom and put it in his hand."

Mariani’s statements have not been considered egregious enough for appellate judges to overturn a conviction — until now.

The state Appellate Court has ruled that Victor Santiago, serving 60 years behind bars for killing a Waterbury bar owner in 1998, could get a new trial because of comments made by Mariani during the trial.

"Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings," wrote Judge Michael R. Sheldon. "More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and [the Connecticut] Supreme Court have repeatedly determined that Mariani has exceeded the bounds of proper conduct, he continues to do so."

As such, the judges decided to utilize their supervisory authority over the administration of justice to reverse Santiago’s conviction for comments he made during closing arguments of Santiago’s trial.

"Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him," wrote Sheldon.

Katherine Essington, Santiago’s appellate lawyer, said she and her client were pleased with the ruling and felt "justice was served." Under the Appellate Court ruling, Santiago will receive a new trial. However, she expects the state to appeal the latest ruling to the state Supreme Court.

"I think it was really [Mariani's] track record that made the difference in this case," said Essington. "The impropriety he made in this case were very similar to improprieties he had made in the past that were the subject of Appellate Court decisions."

Essington said she challenged the conviction on other grounds that the Appellate Court did not even address in its ruling, but acknowledged that the prosecutorial impropriety was the strongest argument. She said that became apparent during oral arguments. "I certainly was struck when I initially read the transcript by what I thought were inappropriate comments in closing argument," said Essington, who is based in Rhode Island but also practices in Connecticut.

‘Gang Banger’ Reference

Santiago, a reputed leader of the Latin Kings street gang, and his two brothers, Thomas Bonilla and Noel Bermudez, were arrested in 2010 in connection with the 1998 killing of Wilfred "Freddy" Morales outside his Waterbury home during a robbery. The killing went unsolved for a dozen years, until Santiago’s estranged wife implicated him. Bonilla and Bermudez were also convicted and are serving prison time.

The Appellate Court stated that the trial judge had limited introduction of evidence regarding Santiago’s gang affiliation, ruling that it could be brought up only to explain his wife’s fear of him. But the appellate judges said Mariani "flouted" the ruling and made repeated references to the defendant’s gang involvement.

The court also said Mariani made "inexplicable" degrading comments about Santiago’s wife and her children. "We further note that Mariani’s comments not only were improper in a legal sense, but they were also rude and irrelevant to any of the issues in the case," wrote Sheldon.

Essington complained that Mariani improperly referred to her client as a "gang banger" and used his gang membership to attack his character and suggest to the jury that he was a violent person.

The state, represented at the appellate level by Senior Assistant State’s Attorney Timothy Sugrue, conceded that the comments were improper because the judge had limited the gang evidence. Mariani also told the jury during closing argument that this type of case was why he became a prosecutor in the first place.

"You know, we’re here, all of us, to seek the administration of justice," Mariani said, according to trial transcripts. "And every once in a while a case comes along that reminds me of how important this job is. And this is one of those cases. Because what happens? I mean, the beautiful thing about this case is that for 12 years – for 12 years the defendant got away with murder. And here we are this jury able to reach back in time and hold him responsible for what he did. That’s what my job is about, and that’s what your function is about, to make people pay for the wrongs that they’ve done."

Sugrue also admitted to the appellate judges that those comments, which aligned the function of a prosecutor with the role of the jury, were improper.

Judge Sheldon noted in the opinion that Mariani made a similar closing during the trial portion of State v. Bermudez, which was found to be improper by the state Supreme Court in 2005. However, the justices said the prosecutor’s remarks did not warrant overturning the verdict.

In another case, State v. Warholic, the Appellate Court in 2004 reversed the conviction of a man who allegedly sexually assaulted a 5-year old boy 50 to 60 times in the 1990s because of prosecutorial impropriety by Mariani. The Supreme Court, however, overturned the state Appellate Court and reinstated the conviction.

‘Feels Very Strongly’

Mariani did not return calls from the Associated Press last week. Sugrue declined to comment. The Chief State’s Attorney’s Office referred comment on the matter to Waterbury State’s Attorney Maureen Platt.

Platt declined to comment on the Appellate Court’s conclusions, but said Mariani is a respected and hard-working prosecutor who has tried an "utterly amazing" number of cases. "I think he feels very strongly and deeply about his cases," said Platt. "I’m sure he’s very saddened by the court’s conclusions."

When asked if Mariani might face discipline, Platt responded, "Every time there is a decision on prosecutorial misconduct … we take those decisions seriously and we do our level best to make sure those instances don’t ever happen again."

Old Lyme defense attorney Conrad O. Seifert can relate to the Santiago case. In 2002, Seifert represented Leotis Payne, whose felony murder conviction was similarly reversed by the state Supreme Court’s supervisory authority for similar types of comments made by the prosecutor, Michael Pepper. "The exercise of supervisory authority only occurs very rarely," said Seifert, a past president of the Connecticut Criminal Defense Lawyers’ Association.

Seifert said there had been a pattern of similar behavior by Pepper leading up to the Payne ruling.

"We try to keep an eye out for impropriety in closing argument," said Seifert. "The prosecution gets to go twice because the state has the burden of proof. So after the defense attorney gives their one argument, the prosecution gets to go again. So especially if an impropriety occurs in the rebuttal argument…we keep our eyes out for this because we’re trying to protect fair trials."•

The Associated Press contributed to this article.