Lapointe v. Commissioner of Correction

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LAPOINTE v. COMMISSIONER OF CORRECTION—SECOND DISSENT
ESPINOSA, J., dissenting. I join Justice Zarella’s thor-
ough and well reasoned dissent, which explains why
the applicable standard of review and governing princi-
ples of law require this court to reverse the judgment
of the Appellate Court, which improperly concluded
that the petitioner, Richard Lapointe, is entitled to a
new trial. There is no need for me to duplicate his
compelling analysis. I write separately to emphasize
what I view to be the central and troubling flaw in
the majority opinion—it constitutes unfettered judicial
activism and reflects a complete misunderstanding of
the proper role that this court should play within the
rule of law. With no reservations whatsoever, the major-
ity usurps the fact-finding role of the trial court in defi-
ance of the constitutional limits on this court’s
jurisdiction, ignores this court’s own recently estab-
lished guidelines that were intended to mitigate the
damage to our system of justice and the prejudice to
the parties when this court raises claims sua sponte
on appeal, and blatantly serves as an advocate for the
petitioner, Richard Lapointe. In other words, in a gross
parody of judicial economy, the majority functions as
fact finder, counsel and reviewing court. And the major-
ity accomplishes all of this apparently with good intent
and in the name of justice.
John Rawls explained the relationship between the
rule of law, justice and the legal system: ‘‘[T]he concep-
tion of formal justice, the regular and impartial adminis-
tration of public rules, becomes the rule of law when
applied to the legal system.’’ J. Rawls, A Theory of
Justice (1971) § 38, p. 235. Within the legal system,
therefore, the rule of law is justice. One of the greatest
dangers to a just society is presented when one in power
acts outside the rule of law in order to vindicate a
personal view of what justice requires. Such action
should be exceedingly rare, and undertaken only when
compelled by necessity. Significantly, immediately after
defining the interrelationship between these founda-
tional components of a just society, Rawls provided an
example of injustice to illustrate that even seemingly
innocuous, well-intentioned departures from impartial-
ity and regularity pose a danger to the rule of law: ‘‘One
kind of unjust action is the failure of judges and others
in authority to apply the appropriate rule or to interpret
it correctly. It is more illuminating in this connection
to think not of gross violations exemplified by bribery
and corruption, or the abuse of the legal system to
punish political enemies, but rather of the subtle distor-
tions of prejudice and bias as these effectively discrimi-
nate against certain groups in the judicial process.’’ Id.
Justice is not achieved by suspending the rules in
order to benefit a single individual through a judicial
decision. Justice is not served when a reviewing court
expands its role to include fact-finding, a role properly
and constitutionally reserved to the trial court. And
justice is most certainly not attained by doffing one’s
judicial robe and donning an advocate’s suit. That, how-
ever, is precisely what the majority has accomplished
through today’s decision. By resolving the appeal on a
basis not argued by either of the parties—indeed, on an
issue that, as Justice Zarella points out, was expressly
abandoned by the petitioner—without allowing them
the opportunity to brief the issue, the court flouts the
principle that legal rules should be applied in a regular
manner. By refusing to defer to the habeas court’s predi-
cate credibility findings and its ultimate factual finding
that the burn time of the fire could not be determined,
the majority acts without jurisdiction and in defiance
of this court’s constitutional role within the judicial
system. By advocating on behalf of the petitioner, the
majority appears to abandon any pretense of impartial-
ity. The rule of law has been damaged by today’s deci-
sion, which casts a cloud over the court, and it is
reasonable to wonder if that cloud portends an
approaching storm.
Unfortunately, there is nothing in the majority’s
departure from the rule of law that is even remotely
innocuous. As Justice Zarella’s dissenting opinion dem-
onstrates in detail, the majority resolves this appeal
on a basis not argued by the petitioner, either at the
Appellate Court or this court, without allowing the par-
ties the opportunity to brief the issue. The majority
itself summarizes the claim raised by the petitioner to
the Appellate Court, namely, that ‘‘the state’s failure to
disclose the Ludlow note1 deprived him of due process
of law and that his first habeas counsel had rendered
ineffective assistance under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
for failing to pursue and prove that claim.’’ (Footnotes
altered.) The majority concedes that at the habeas court
‘‘the sole issue with respect to the Ludlow note was
whether it was material.’’ The majority further acknowl-
edges that this court has expressly stated that the appli-
cable standard of review is that ‘‘a trial court’s
determination as to materiality under [Brady v. Mary-
land, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963)] presents a mixed question of law and fact sub-
ject to plenary review, with the underlying historical
facts subject to review for clear error.’’ (Internal quota-
tion marks omitted.) State v. Ortiz, 280 Conn. 686, 720,
911 A.2d 1055 (2006). The majority then blithely applies
plenary review to the entire materiality determination,
including the habeas court’s factual findings.
As Justice Zarella points out in his dissent, neither
of the parties has raised the issue on which the majority
resolves this appeal. Certainly, the respondent, the
Commissioner of Correction, does not ask this court
to reconsider a well established standard of review that
in this instance favors the state. Justice Zarella aptly
contrasts the respondent’s brief in the present case with
the brief of the respondent in Anderson v. Commis-
sioner of Correction, 313 Conn. 360, 375, 98 A.3d 23(2014), cert. denied sub nom. Anderson v. Semple,
U.S. (83 U.S.L.W. 3678 February 23, 2015), in which
the state was on notice that this court would be
reviewing the question of whether an appellate tribunal
properly may revisit the factual findings of the habeas
court, because in that case a dissenting judge at the
Appellate Court had done precisely that. Accordingly,
in the respondent’s certified appeal to this court in
Anderson, Justice Zarella notes that the respondent
fully briefed the issue of the appropriate standard of
review. Justice Zarella’s implied question to the major-
ity, therefore, is crucial—if the respondent is on notice,
as the majority purports, that this court will reconsider
the appropriate standard of review, why did the respon-
dent fail to brief the issue?
As to the petitioner, not only has he failed to challenge
the factual findings of the habeas court, he has
expressly abandoned any claim that those findings con-
stituted clear error by stating that he agrees with the
habeas court’s ultimate factual findings that ‘‘the
experts could not determine the exact amount of time
the fire burned’’ and that ‘‘the fire’s burn time could
not be precisely determined.’’ Additionally, the peti-
tioner has not argued that this court should adopt a de
novo standard of review of a habeas court’s factual
findings and, indeed, the petitioner could not prevail
in such an argument. As Justice Zarella explains
cogently and thoroughly in his dissenting opinion, it is
beyond this court’s jurisdiction to review factual find-
ings de novo, and it is beyond this court’s power to
allow to itself what our constitution forbids.
Given the petitioner’s acquiescence to the factual
findings of the habeas court, one would expect the
majority to take those findings as the starting point for
its consideration of whether the court properly con-
cluded that the Ludlow note was not material. The
habeas court’s factual findings, however, are problem-
atic for the majority, because those findings do not
favor the petitioner. The habeas court stated that ‘‘as
the finder of fact’’ it assigned ‘‘far more credit’’ to the
respondent’s expert, Robert Corry, than it did to the
petitioner’s experts, Gerard Kelder, Jr., and John
DeHaan. Predicated on that subordinate factual finding,
the court ultimately found that ‘‘the precise time the
fire was set cannot be determined.’’ (Emphasis added.)
The court grounded its legal conclusion that the Ludlow
note was not material on its ultimate factual finding
that the evidence did not establish that the burn time
could be determined with sufficient precision to sup-
port the petitioner’s proposed alibi defense. Finally, as
to the petitioner’s proposed alibi defense, the court also
found that the petitioner’s only alibi witness, his former
wife, Karen Martin, without whose testimony the Lud-
low note and the testimony of the burn time experts
would be irrelevant to the petitioner’s Brady claim,
lacked credibility.
One might well ask why these findings are problem-
atic for the majority. The answer is quite simple—the
majority apparently takes as its starting point the con-
clusion that the petitioner is innocent.2 It is not neces-
sary to engage in any ‘‘divination’’ to discern the impetus
driving the majority’s decision. My conclusion that the
majority begins with the conviction that the petitioner
is innocent, and only constructs its analysis after it
has arrived at that conclusion, is grounded on three
observations. First, as I explain in this dissenting opin-
ion, the majority has not grounded its conclusion on
any valid legal principle. If the majority’s conclusion is
not compelled by the law, and is in fact prohibited by
it, it is reasonable to question what has led the majority
to arrive at its conclusion. Second, the tinted lens
through which the majority views the petitioner’s case
suggests an answer to that question—that is, the biased
language that the majority uses to describe the petition-
er’s case supports the conclusion that the majority is
not viewing the case objectively. Finally, the majority
attempts to confine its new rule to the facts of the
present case, thus indicating that it has crafted this new
rule specifically for this petitioner. For example, the
majority emphasizes that the case ‘‘presents a highly
unusual scenario . . . .’’ Most tellingly, in response to
Justice Zarella’s justified concerns regarding the subse-
quent application of the majority’s new rule, the major-
ity states that its reliance on Bunch v. State, 964 N.E.2d
274, 293 (Ind. App. 2012), is justified because that case
is ‘‘factually and procedurally indistinguishable in any
material respect from this one.’’
The findings of the habeas court are irreconcilable
with the majority’s apparent conviction that the peti-
tioner is innocent, and, if left standing, those findings
would compel the conclusion that the habeas court
properly concluded that the Ludlow note was not mate-
rial. There are occasions when the factual findings of
the trial court are determinative—this is one of those
occasions. Because the majority is unwilling to
acknowledge this limitation on its power, the majority’s
task is clear—somehow, some way, those findings
must fall.
The factual findings of the habeas court create both
procedural and substantive hurdles for the majority.
First, as a procedural matter, because the parties have
not been notified that the appeal will be resolved on a
claim raised sua sponte by this court—resolving the
appeal by revisiting the factual findings pursuant to a
radical new standard of review—the parties must be
allowed to submit supplemental briefs. See Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 161–62, 84 A.3d 840 (2014)
(Blumberg). Second, as a substantive matter, and as
Justice Zarella explains, because this court lacks juris-
diction to render judgment on the facts of a case, as a
matter of law, the majority cannot revisit the factual
findings. Undaunted, the majority nevertheless sets to
its task, first making quick work of the habeas court’s
ultimate factual finding that the burn time of the fire
could not be determined with any precision, and the
court’s finding that Martin lacked credibility, by simply
ignoring those findings. This solution is both elegant
and ingenious—if a finding is problematic, simply pre-
tend it is not there.
Because the majority cannot claim that the habeas
court made no factual findings, it is forced to acknowl-
edge that the court did indeed make credibility ‘‘find-
ings.’’ Not to worry—confident that it is up to the task,
the majority dusts off its hands and sets to the messy
work of dismantling the habeas court’s credibility find-
ings, which it recasts as findings of persuasiveness,
rather than credibility. The majority appears to believe
that by substituting the word ‘‘persuasive’’ for ‘‘credi-
ble’’ it has cleverly recast the habeas court’s credibility
findings as somehow not really credibility findings. The
majority also suggests that determinations of expert
witness credibility in particular are not actually credi-
bility findings, because when a trial court evaluates the
credibility of an expert, it is ‘‘assess[ing]’’ the foundation
on which the opinion is based, not making a finding as
to the ‘‘personal credibility’’ of the witness. But see
Anderson v. Commissioner of Correction, supra, 313
Conn. 375 (in appeal arising from denial of petition
alleging ineffective assistance of trial counsel in viola-
tion of Strickland v. Washington, supra, 466 U.S. 686,
habeas court’s factual findings as to expert witness’
credibility ‘‘will not be disturbed unless they are clearly
erroneous’’ [internal quotation marks omitted]).
The majority’s attempt to selectively categorize credi-
bility findings as to expert witnesses as somehow dis-
tinct from all other credibility findings is simply not
reconcilable with the way that a fact finder evaluates
the testimony of witnesses, as it supposes that such a
finding may be neatly dissected, somehow separating
a fact finder’s observations of the demeanor of a witness
from its evaluation of the substance of the witness’
testimony. The majority’s standard is inconsistent with
the fact that trial courts routinely instruct juries that
they are to consider the credibility of expert witnesses
in the same manner that they consider the credibility
of any other witness. See State v. Borrelli, 227 Conn.
153, 174, 629 A.2d 1105 (1993); Connecticut Criminal
Jury Instructions (4th Ed.) instruction 2.5-1, available
at http://www.jud.ct.gov/JI/criminal/part2/2.5-1.htm
(last visited March 27, 2015).
It is for the fact finder to consider that testimony,
using its ‘‘ ‘best judgment,’ ’’ and to determine whether
to give any weight to the testimony, and, if so, how
much weight to give to it. State v. Borelli, supra, 227
Conn. 174. A fact finder cannot determine credibility
without considering demeanor, and, in the case of
juries, they are specifically instructed to consider a
witness’ demeanor during testimony, regardless of
whether that witness is an expert or lay witness. See
Connecticut Criminal Jury Instructions (4th Ed.)
instruction 2.4-2, available at http://www.jud.ct.gov/JI/
criminal/part2/2.4-2.htm (last visited March 27, 2015).
The majority’s rule, which requires the habeas judge to
say the magic word ‘‘demeanor,’’ in order for this court
to apply the standard of review we have applied without
exception to a fact finder’s credibility findings, is not
only inconsistent with the way that our courts have
understood the evaluation of the credibility of wit-
nesses, and irreconcilable with the fact finder’s discre-
tion to disregard entirely the testimony of any witness,
including an expert witness, it is divorced from the
reality of what happens at the trial court level. It is
irreconcilable with the fact that, pursuant to our crimi-
nal jury instructions, the fact finder, whether it be a
judge or a jury, ‘‘may disregard the [expert’s] testimony
in whole or in part.’’ Connecticut Criminal Jury Instruc-
tions, supra, instruction 2.5-1. This oversimplification
reflects either an inability to understand or an unwilling-
ness to acknowledge the nuances involved in the fact-
finding process. The process of determining credibility
is an exercise of human judgment that cannot be accom-
plished by reviewing a cold piece of paper, but that is
the fiction upon which the majority’s new standard
is based.
In an attempt to blunt the argument of the dissenting
justices in this appeal that the parties had no notice that
the majority would abandon our established standard of
review for credibility findings, the majority turns to the
analysis of the Appellate Court, which it claims applied
de novo review to the habeas court’s credibility find-
ings. There is no support whatsoever for the majority’s
reading of the Appellate Court decision, which merely
concluded that ‘‘if’’ a jury on retrial were to credit both
the testimony of the petitioner’s burn experts and the
testimony of Martin, then, the jury could have found
‘‘that it was temporally impossible for the petitioner to
have committed the crimes for which he was con-
victed.’’ Lapointe v. Commissioner of Correction, 138
Conn. App. 454, 479, 53 A.3d 257 (2012). The holding
of the Appellate Court, therefore, is framed in the form
of a hypothetical.3 Id. That is, the Appellate Court did
not answer the question of whether it is reasonably
probable that a jury would credit the petitioner’s new
evidence. Accordingly, it did not apply any standard of
review to the habeas court’s factual findings. It simply
concluded that if a jury were to credit that evidence, the
jury could conclude that the petitioner had successfully
established an alibi defense. It is much more useful for
the majority, however, to assert, without any support,
that the Appellate Court applied de novo review,
because that reading supports the majority’s refusal to
allow the parties to submit supplemental briefs.
The cornerstone of the majority’s strategy, on both
the procedural and substantive fronts, is its casual
announcement that the applicable standard of review
of credibility findings—but only as to expert credibility
findings, and only in the Brady and Strickland contexts,
and only when the habeas court omits to state expressly
that it considered the demeanor of the witness—is de
novo. As support for this jaw-dropping statement, which
is directly contradicted by more than one century of
binding precedent of this court, the majority cites to
an intermediate appellate court in Indiana, which the
majority apparently discovered after scouring every
jurisdiction in the country for a decision that would
provide support for its astonishing new rule. In connec-
tion with a claim based on newly discovered evidence,
not Brady material, the Indiana Appellate Court stated
in 2012 that it would not defer to a trial court’s findings
regarding the credibility of experts because that type
of credibility determination is not based on a ‘‘first-
hand evaluation of [the witness’] demeanor’’ but instead
is grounded on an assessment of the credibility of the
‘‘foundation’’ of the expert opinion. Bunch v. State,
supra, 964 N.E.2d 293. The majority opinion does not
explain how we arrived in Indiana, or why we are ignor-
ing the binding precedent of this court. See Anderson
v. Commissioner of Correction, supra, 313 Conn. 375(expert credibility findings in Strickland context
reviewable only for clear error); State v. Lawrence,
282 Conn. 141, 157, 920 A.2d 236 (2007) (‘‘it would
be improper for this court to supplant its credibility
determinations for those of the fact finder, regardless
of whether the fact finder relied on the cold printed
record to make those determinations’’); State v. Ortiz,
supra, 280 Conn. 720 (habeas court’s factual findings
regarding materiality in Brady claim subject to review
only for clear error).
Perhaps most astonishing of all is the majority’s fail-
ure to mention even once in its 123 page decision a
recent Connecticut decision, which, like Bunch, dis-
cussed the appropriate level of deference afforded by
this court to the credibility determinations of the trial
court in considering a claim predicated on newly discov-
ered evidence. See Skakel v. State, 295 Conn. 447, 991
A.2d 414 (2010). Not surprisingly, the majority in Skakel
flatly rejected as ‘‘unprecedented’’ and contrary to our
law; id., 487 n.25; the suggestion of the dissenting justice
that this court should not defer to the trial court’s credi-
bility findings with respect to the videotaped testimony
of a witness, where the trial court had expressly stated
that because the witness had not testified at the hearing
on the petition for a new trial, that court was ‘‘unable to
evaluate his ‘demeanor and manner . . . .’ ’’ (Emphasis
omitted.) Id., 630 (Palmer, J., dissenting). The majori-
ty’s dismissal of the dissenting justice’s novel theory
was not even remotely ambiguous—this court charac-
terized that notion as one that this court ‘‘squarely has
rejected . . . .’’ Id., 487 n.25. Yet, today’s majority not
only fails to distinguish this court’s decision in Skakel—
it does not even deign that decision worthy of mention,
and instead relies on Indiana case law.
Nor does the majority explain how its reclassification
of expert credibility findings made within the Brady
and Strickland contexts somehow overcomes the juris-
dictional bar established by our constitution, or why, for
that matter, a different standard of review of credibility
findings should apply in Brady and Strickland cases.
Instead, the majority acts as though it just discovered
an already existing rule dictating the standard of review,
a rule that magically allows the majority to find facts
without admitting that it is doing so. And the best part
is that because this is not, according to the majority, a
new standard of review, there is no need to allow the
parties to brief the issue of whether the court should
adopt a new standard.
With a single decision by an intermediate appellate
tribunal in a different state,4 the majority has solved
two vexing problems—both the procedural problem of
how to resolve the appeal on a claim raised sua sponte
by this court without allowing the respondent to brief
the issue, and the substantive problem of how to find
facts, notwithstanding that doing so requires acting
without jurisdiction in violation of our state constitution
and ignoring legal precedent that has guided this court
for more than one century. It is truly astounding, in
light of the overwhelming authority cited by Justice
Zarella in his dissenting opinion explaining the jurisdic-
tional limits on this court’s authority and documenting
the many cases in which we have recognized and held
ourselves bound by those limits, and in light of the fact
that we recently and expressly rejected in Skakel v.
State, supra, 295 Conn. 447, the very principles on which
the Bunch court relied, that the majority has the audac-
ity to deny that we have repeatedly rejected the very
standard of review that it now claims is appropriate in
the present case.
The answer to the majority’s insupportable claim is
simple and irrefutable. Our decisions and our state con-
stitution, which clearly prohibit precisely what the
majority does today—engaging in de novo review of the
habeas court’s expert credibility findings—are binding
authority. When a decision from another jurisdiction,
which constitutes persuasive authority only, is contra-
dicted by our binding precedent, our decisions control.
Instead of applying that principle of black letter law,
the majority looks to Indiana for permission, finds facts
and simply insists that it is not doing so. It applies an
astonishing new standard of review and pretends that
the rule is well established. The majority raises a new
claim sua sponte and expresses surprise when the dis-
senting justices cry foul.
Under these circumstances, it is unconscionable to
fail to order supplemental briefing. The majority clum-
sily attempts to conceal the fact that it is adopting a
radical new standard of review that is beyond the power
and contrary to the very essence of this court, in order
to justify revisiting the habeas court’s factual findings
in the absence of a claim of clear error, without allowing
the respondent the opportunity to brief the issue. All
the while, the majority acts as though there is nothing
extraordinary in applying de novo review of factual
findings. This sleight of hand is reminiscent of the Wiz-
ard of Oz exhorting Dorothy to ‘‘[p]ay no attention to
that man behind the curtain!’’ At that point in the movie,
no child was fooled, and the majority should not even
try to convince itself that the reader will be fooled by
its shell game.
The chilling aspect of the majority’s brazen maneu-
ver, however, is that we should have seen this coming.
This court has been on a discernible path toward pre-
cisely this type of abuse of judicial power, and it began
down that course by lightly tossing aside the rule of
law in a case in which no necessity compelled such
extreme action. Until recently, this court considered it
to be a ‘‘bedrock principle of our adversarial system
that courts decide only those claims that the parties
have raised.’’ State v. Lenarz, 301 Conn. 417, 532, 22
A.3d 536 (2011) (Palmer, J., dissenting). Ironically,
when Lenarz was decided, Justice Palmer took the
majority to task for ‘‘[ignoring] this principle in resolv-
ing the present case on the basis of a claim that the
defendant never has raised and that the state never has
had a chance to address.’’ Id.Enter Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., supra, 311 Conn.
123. In a stunning and unnecessary departure from this
basic principle of appellate procedure, this court
announced in Blumberg that pursuant to our supervi-
sory power, we, and the Appellate Court, may set aside
that ‘‘bedrock principle’’ and sua sponte resolve an
appeal on an issue not raised by the parties. Id., 155.
Perhaps in recognition of the fact that we were blurring
the line between judging and advocacy, we limited our
power by claiming that we would exercise it only upon
the satisfaction of three conditions. First, there must
be ‘‘exceptional circumstances’’ that justify reviewing
the new issue.5 Id., 128. Second, we must give the parties
the opportunity to be heard on the issue. Id. Third, there
must be ‘‘no unfair prejudice to the party against whom
the issue is to be decided.’’ Id. The court specifically
emphasized that although all three conditions are neces-
sary before we may sua sponte raise and consider a
new claim, ‘‘they are not alone sufficient.’’ (Emphasis
in original.) Id., 157. The decision also stated that the
reviewing court raising a new claim may not rely on a
general ‘‘in the interests of justice’’ explanation; id., 160;
for the departure from the ‘‘general rule’’ that such
claims are not reviewable. Instead, the reviewing court
‘‘should provide specific reasons, based on the excep-
tional circumstances of the case, to justify a deviation
from the general rule that unpreserved [and unraised]
claims will not be reviewed.’’ Id., 161.
Despite this court’s suggestion in Blumberg that it
was simply making explicit what was already implicit
in our decisions, reaction to the decision has ranged
from surprised yet polite wariness to open dismay. See,
e.g., C. Tait & E. Prescott, Connecticut Appellate Prac-
tice and Procedure (4th Ed. 2014) § 8-2:5, pp. 453–55
(describing Blumberg as ‘‘stunning’’ decision that
‘‘greatly expanded the right of the appellate courts to
reach out and decide an issue that was neither pre-
served by the parties, nor raised on appeal,’’ and
expressing view that reviewing courts should exercise
new authority under Blumberg ‘‘if at all, on exceedingly
rare occasions,’’ warning that ‘‘[o]nly time will tell as
to whether Blumberg is the first step down an unwar-
ranted path of issue spotting by appellate courts’’); D.
Klau, ‘‘Two Points Make a Line (And Suggest a Trou-
bling Trend),’’ Appealingly Brief!, July 1, 2014, available
at http://appealinglybrief.com/2014/07/01/two-points-
make-a-line-and-suggest-a-troubling-trend (last visited
March 30, 2015) (Blumberg and other decisions in
which this court has exercised its supervisory authority
suggest that this court ‘‘has abandoned longstanding
norms that have governed the operation of our adversar-
ial system of justice—norms like, ‘[i]t is a bedrock prin-
ciple of our adversarial system that courts decide only
those claims that the parties have raised’—in favor of
a philosopher-king model of appellate judging’’); C.
Ray & M. Weiner, ‘‘Mueller v. Tepler, 312 Conn. 631(2014): The Appellate Court Gets ‘Blumberg-ed,’ ’’ Con-
necticut Lawyer, Vol. 25, No. 3 (October 2014), p. 31
(observing that ‘‘as the Blumberg vessel drifts into the
murky waters of sua sponte identification and review
of legal issues, the more tethered to the strictures set
forth in Blumberg that the [c]ourt remains, the more
comfortable we, as appellate practitioners, will feel’’).
Until today’s decision, this court has waded only ten-
tatively into the Blumberg waters. Since that decision
was released last year, this court has invoked Blumberg
three times, and has generally adhered to the guidelines
established therein. See Lane v. Commissioner of Envi-
ronmental Protection, 314 Conn. 1, 15–16 n.16, 100 A.3d
384 (2014) (resolving defendant’s claim that we could
not address question of whether statute retroactively
applied to plaintiffs’ conduct because it was not encom-
passed by certified question, on basis that proper con-
struction of statute as applied to plaintiffs necessarily
must resolve question of retroactive application, but
also noting in dictum our authority under Blumberg);
Mueller v. Tepler, 312 Conn. 631, 643–46, 95 A.3d 1011(2014) (allowing parties to brief unpreserved claim
raised by plaintiff because Appellate Court ruling was
reversible under plain error doctrine); State v. Hender-
son, 312 Conn. 585, 595–96, 94 A.3d 614 (2014) (sua
sponte raising and allowing parties to brief issue of
whether trial judge made finding that enhanced sen-
tence was in public interest, on basis that claim was
alternative ground for affirmance likely to arise on
remand). Today, however, the majority reveals that it
will no longer remain tethered.
Voltaire is credited with stating that with great power
comes great responsibility. As the highest court in the
state, it is undeniable that we have great power. Blum-
berg is rooted in our supervisory authority, which we
historically have characterized as a power that should
be used sparingly. See, e.g., State v. Medrano, 308 Conn.
604, 648, 65 A.3d 503 (2013) (Norcott, J., concurring)
(‘‘[o]ur supervisory powers are invoked only in the rare
circumstance where . . . traditional protections are
inadequate to ensure the fair and just administration
of the courts’’ [internal quotation marks omitted]). The
reason for our restraint is obvious. On the one hand,
our supervisory powers serve an essential purpose,
reflecting our recognition that, although the rule of law
ensures justice within the legal system, there are some
instances when justice is more properly aligned with
principles of equity. In those rare instances, the unifor-
mity of legal rules must yield to equity, thereby achiev-
ing justice.
On the other hand, our extraordinary authority to act
outside the limits of the rule of law is unquestionably
a ‘‘great power,’’ one that carries with it both great risk
and attendant responsibility. Our supervisory authority
allows us to reach down and announce a rule or result
from on high. As the highest court in the state, once
we have invoked that authority, our use of it is virtually
unreviewable—with few exceptions, we are answerable
only to ourselves. Accordingly, because of the lack of
outside checks on that power, we have a duty to resort
to that authority only when we must—disciplining our-
selves to rely on it rarely. Otherwise, we risk injecting
arbitrariness and capriciousness into the rule of law.
Blumberg runs afoul of these basic principles, and,
in the present case, the majority takes another step
down the dangerous path we have set for ourselves.
The court in Blumberg exercised our extraordinary
supervisory power arrogantly, without an awareness of
its accompanying responsibility. The practical effect is
obvious. By literally drawing a road map of all of the
instances in which we now have given ourselves license
to skirt around bedrock principles of appellate law,
Blumberg encourages abuse of our supervisory author-
ity. Today’s majority has accepted that invitation
with abandon.
On one level, it is not surprising that Blumberg has
led us to the abuse of power in the present case, where
the majority has raised a new claim and then simply
denied that it has done so. The habeas court’s findings,
if given the proper deference, would not support the
result that the majority reaches today, so those findings
cannot be allowed to stand. The majority, therefore,
whips up a new rule that allows it to make its own
findings, and contorts the respondent’s routine and cur-
sory assertion that the Appellate Court’s decision can-
not be reconciled with the applicable standard of review
to constitute a request to this court to revisit that stan-
dard of review, notwithstanding the fact that we are
constitutionally prohibited from doing so.6 And the
majority does it all without invoking Blumberg even
once. As I mentioned earlier, the seeds were present
in Blumberg, and we should have seen this coming.
On another level, however, today’s decision could
never have been foreseen, even by Blumberg’s most
vocal critics. In Blumberg, this court revealed that it
will dare to exercise its supervisory authority too
broadly, too readily and too often. In today’s decision,
the majority reveals that not even a jurisdictional bar
in the state constitution will stand between it and what
it views as a just result. No one could have imagined
that within one year, Blumberg would seem to be a
relatively modest abuse of power.
The majority’s unwillingness to abide even by the
modest constraints on its power set forth in Blumberg
appears to stem from a lack of impartiality, evident
from the language of the opinion itself. From the outset,
it is clear that the lens through which the majority
focuses on the facts of the case is obscured by its
apparent bias in favor of the petitioner. I will not under-
take a detailed critique of the majority’s discussion of
the merits of the petitioner’s appeal. As I have stated,
Justice Zarella already has accomplished that task admi-
rably in his dissenting opinion. I emphasize only some
aspects of the majority’s discussion in order to highlight
the fact that the majority’s determination to ignore the
rule of law today is driven by the result that it sought
from the beginning, handing a get out of jail free card
to a man who the majority apparently has become con-
vinced is innocent, despite the fact that the majority
was not present at the original trial or at any of the
habeas trials. I am mindful of the principle that in dis-
secting the majority opinion to demonstrate its bias, I
am limited, as are we all, by the fact that one can
never ‘‘[look] into another’s mind’’ to know that person’s
intent. See Connecticut Criminal Jury Instructions (4th
Ed.) instruction 2.3-2, available at http://www.jud.ct.
gov/JI/criminal/part2/2.3-2.htm (last visited March 30,
2015). Absent a statement setting forth a person’s intent,
we always must rely on inference to discern it. I there-
fore look to what was said, and to what was not said,
as evidence of the majority’s bias.
I begin with a few examples of the slanted language
employed in the majority opinion. Despite never having
met the petitioner, the majority states that ‘‘he seemed
physically, mentally and temperamentally incapable of
the brutal crime.’’ The majority attempts to justify its
disregard for the rule of law by referring to ‘‘the sinking
discomfort that comes with the realization that an injus-
tice may have occurred.’’ In referring to the Ludlow
note, it is not sufficient for the majority to refer to it as
merely exculpatory evidence—it labels it ‘‘exonerating
. . . .’’ As for the content of the note, which consisted of
the cryptic notation ‘‘30–40 mins. [p]oss.,’’ the majority
asserts that this vague notation constitutes ‘‘details’’
concerning the length of time that the fire burned in
the victim’s apartment, and that the note was ‘‘consis-
tent’’ with the testimony of the petitioner’s two experts
during the habeas trial. The majority also claims that
the police ‘‘focused their suspicions’’ on the petitioner,
rather than their investigation.
Apparently, deeming the term ‘‘confession’’ to be too
negative, the majority characterizes the petitioner’s
three confessions admitting that he raped and killed
the victim and then set fire to her home, as ‘‘suspect
admissions,’’ in which he ‘‘purported’’ to take responsi-
bility for the crime. If all of this does not clarify for
whom the majority speaks, one need only review part
I of the majority opinion, the facts section, which
includes as a statement of fact the argument of the
petitioner’s trial counsel that his confessions ‘‘were the
product of a highly manipulative interrogation of an
extremely vulnerable and impaired man, who had spent
his entire life accommodating and agreeing with others
in an effort to gain favor and to avoid conflict.’’ These
confessions are the very same ones that this court
upheld on appeal. State v. Lapointe, 237 Conn. 694,
730–35, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S.
Ct. 484, 136 L. Ed. 2d 378 (1996).
In a striking display of its utter loss of perspective
regarding the role of this court and the functioning
of our system of justice, the majority makes several
statements that suggest it is willing to step beyond even
the role of advocate, and take a thirteenth, oversized
seat in the jury box. For example, in regard to the
petitioner’s confessions, the majority states: ‘‘Indeed,
no fair-minded person who is familiar with the evidence
in the present case can read the petitioner’s statements
and feel confident that they represent a true and accu-
rate account of the victim’s murder by the person
responsible for her death.’’ I can think of a group of
people who, after months of listening to evidence, did
have such familiarity and did have such confidence: The
jury of the petitioner’s peers. The majority repeatedly
ignores the fact that the petitioner had the opportunity
to present whatever evidence he chose in support of
his defense, to a jury that he agreed would be fair and
impartial. In front of that jury, the petitioner had the
opportunity to confront the witnesses against him, and
to argue his theory of the case through counsel. That
jury, unlike the majority, heard all of the evidence and
convicted the petitioner.
In another illustration of the same problem, the
majority first briefly catalogues some of the evidence
relied on by the state at the petitioner’s trial, including:
upon supposedly discovering that the victim’s apart-
ment was on fire, the petitioner took a longer route
than necessary to use the neighbor’s telephone; when
he used the neighbor’s telephone, he called his wife
and the victim’s daughter instead of the police; he
claimed that the door to the victim’s apartment had
been locked, but it was not; he repeatedly asked the
police over the years whether he was a suspect in the
case; and, he gave conflicting accounts about how often
he had left his home and how often he had seen the
victim on the day of the murder. Astonishingly, the
majority then states: ‘‘Suffice it to say that we do not
believe that a jury would necessarily find any of this
conduct particularly odd or suspicious, even for the
average person, and would likely find it much less so
for the petitioner,’’ despite the fact that a jury already
has found all of this behavior, taken together with a
confession, to be quite a bit more than odd and suspi-
cious. Indeed, the jury found it to be proof of guilt
beyond a reasonable doubt.
The majority’s brief catalogue of the state’s evidence
further serves as an illustration of the primary method
by which the majority tries to dilute the strength of the
state’s case against the petitioner in the original trial
in order to bolster the materiality of the Ludlow note.
Rather than consider all of that evidence together, the
majority addresses it piecemeal, as demonstrated by
the majority’s suggestion that the conduct listed in its
brief catalogue should be evaluated without reference
to the fact that the petitioner confessed to the crime.
The majority uses this device repeatedly in its evalua-
tion to exaggerate the weaknesses and minimize the
strengths of the state’s case.
In addition to considering the state’s evidence in a
piecemeal fashion, the majority unabashedly considers
information that was not presented at the original trial
or to the habeas court on the petitioner’s second habeas
petition, such as the opinion of Richard Leo, a professor
who testified regarding false confessions in support of
the petitioner’s unsuccessful actual innocence claim in
his first habeas trial. Leo’s opinion has no bearing on
the materiality of the Ludlow note. The majority claims
that it is aware that its ‘‘focus, of course, is the import
of the burn time evidence relative to the strength of
the [state’s] case,’’ but, nevertheless, ‘‘recite[s]’’ Leo’s
statements to underscore its finding that the confes-
sions were unreliable. See footnote 86 of the majority
opinion. Related to the majority’s improper reliance on
Leo’s opinion is its perplexing discussion of the
research it has reviewed regarding the problem of false
confessions, research that was never presented or con-
sidered in connection with the second habeas petition.7
The majority fails to provide any explanation as to how
its research is connected to this appeal, reinforcing the
conclusion that the majority is simply convinced that
the petitioner’s confessions were false, and therefore
the majority is authorized to act outside the rule of law.
Additionally, by offering up the research that it has
itself reviewed, the majority appears to be trying on yet
another hat, that of an expert witness.
The majority also relies on certain testimony that the
petitioner unsuccessfully had offered in support of his
ineffective assistance of counsel claim in his first
habeas petition, specifically, the testimony of a Man-
chester resident that saw someone running from the
area of the crime scene at approximately 8 p.m. on the
night of the murder. That testimony has no bearing
whatsoever on the strength of the state’s case, notwith-
standing the majority’s sly remark that it will not com-
ment on the admissibility of this testimony at a new
trial. The first habeas court made a factual finding that
the petitioner had failed to establish a link between the
unidentified runner and the crime. Presumably, that
finding will stand absent a successful claim of clear
error. See State v. Arroyo, 284 Conn. 597, 609–10, 935
A.2d 975 (2007) (explaining that proffered evidence of
third-party culpability is inadmissible if that ‘‘[e]vidence
. . . would raise only a bare suspicion that a third party,
rather than the defendant, committed the charged
offense’’).
The majority’s reliance, in its assessment of the
strength of the state’s case, on information that was
never introduced into evidence at trial is even more
astonishing when considered in conjunction with the
majority’s selective failure, in that same assessment, to
give weight to evidence that was actually presented by
the state at trial. Most notably, the primary basis on
which the majority concludes that the state’s case
against the petitioner was ‘‘tenuous,’’ is its finding that
the petitioner’s confessions were false. In making its
case, the majority relies heavily on the fact that the
petitioner, who has an IQ of 92, suffers from Dandy-
Walker syndrome. The petitioner’s trial counsel, how-
ever, presented ample evidence of his mental disability
at trial in an attempt to call into question the voluntari-
ness and reliability of his confessions, including the
testimony of a clinical psychologist and a psychiatrist
who both testified, over the course of five days during
the trial, regarding the petitioner’s mental disability.
The jury also had the opportunity to consider this evi-
dence in the context of its observations of the petition-
er’s testimony over the course of three days, and his
demeanor during the two months of trial. The jury con-
sidered that evidence and concluded nonetheless that
the confessions were both voluntary and reliable.
The majority also contends that the testimony offered
by the state at trial detailing the petitioner’s police inter-
view and resulting confessions ‘‘provides significant
insight into . . . the petitioner’s state of mind during
questioning.’’ I agree that the testimony provides insight
into the petitioner’s state of mind. I observe that the
jury obviously drew different inferences than those
drawn by the majority, which, once again, reveals its
apparent bias through its slanted account of the evi-
dence. Specifically, although the majority acknowl-
edges that the petitioner himself explained to Detective
Paul Lombardo of the Manchester Police Department
the reasons for his reluctance to provide the details of
his crime, the majority substitutes its own theories as
to why the petitioner vacillated. The petitioner was very
clear about the basis for his resistance to providing
details—he did not want people to view him as a ‘‘sex
fiend’’ and was concerned that Martin would leave him
once she found out what he had done to her grand-
mother, the victim, Bernice Martin. The logic of the
petitioner’s thinking is fairly compelling—brutally rap-
ing and murdering the eighty-eight year old grand-
mother of your then wife, then setting a fire to destroy
the evidence, is horrific. It is one thing to confess to
doing it; it is quite another to state out loud the details
of what you did, knowing that whatever you say will
become public knowledge.
The petitioner’s thinking reveals a level of sophistica-
tion that is inconsistent with the majority’s portrayal
of him as ‘‘slow-witted, easily confused, child-like and
gullible . . . .’’ As the habeas court observed following
its review of the trial transcripts, a reasonable interpre-
tation of the petitioner’s confessions is ‘‘that the peti-
tioner intentionally gave the police a mixture of both
truthful and misleading information. The petitioner’s
behavior may be nothing more than manipulation and
duplicity.’’ That court further observed that its ‘‘thor-
ough review of the transcripts of the petitioner’s testi-
mony, both during the trial and the extensive motion
to suppress hearing, reflect an individual who answered
questions quite well but nevertheless was often evasive,
selective in his recall and bordering on so incredible
as to be not believable . . . .’’
Both the majority and the concurring opinions rely
on the fact that some of the details of the petitioner’s
third, more detailed statement to the police were not
corroborated by the evidence at the crime scene. For
example, both opinions point to the fact that the peti-
tioner incorrectly described the method of strangula-
tion and the clothing the victim had been wearing on
the night of the murder. It is ironic that the majority and
the concurring opinions have such high expectations of
the petitioner’s ability to recall details two years after
the crime, considering much of their theory of the case
depends on their view that the petitioner suffers from
a mental disability so severe that it renders his confes-
sion involuntary.
Consistent with the petitioner’s statements that he
was withholding information because he was con-
cerned with the consequences, he provided his most
detailed confession only after he had been assured that
Martin had been informed that he had committed the
crime, and that she still supported him and would stand
by him. In a masterful display of advocacy, however,
the majority decides not to accept the petitioner’s own
explanation as to why he was withholding details and
vacillating during the interview. Instead, the majority
supplies its own explanation for the petitioner’s eva-
siveness, postulating that his resistance supports the
conclusion that the confessions were false.
It is also significant that the majority dismisses out
of hand a powerful piece of corroborative evidence
relied on by the state at the petitioner’s original trial.
The majority summarizes that evidence very briefly,
acknowledging that the state relied on the fact that,
‘‘before any information regarding a possible sexual
assault became known to the police or the public, the
[petitioner] stated in a conversation with . . . a friend
of the Lapointe family . . . that ‘it was a shame they
killed an old lady, but they didn’t have to rape her,
too.’ ’’ State v. Lapointe, supra, 237 Conn. 699. The
majority then opines that the petitioner’s testimony at
trial offered a perfectly good explanation as to how he
came by that information—the petitioner stated that
he had overheard this information at the hospital. As
elsewhere, the information omitted by the majority
reveals its true agenda. This court summarized the rele-
vant facts: ‘‘When asked in a June, 1989 interview by
[Lombardo] how [the petitioner] had learned that the
victim had been sexually assaulted, the [petitioner]
responded that he had been informed by a doctor at
the hospital on the night of the murder that the victim
had been strangled, stabbed and sexually assaulted.
The medical personnel who had attended to the victim
unanimously testified, however, that they did not check
the victim for sexual assault trauma when she was at
the hospital that night and, further, that it would have
been highly unusual for them to have done so under the
circumstances. Other family members who had been
present at the hospital corroborated the testimony of
the medical personnel who said that there had been no
mention of sexual assault at the hospital.’’ Id., 699–700.
The majority ignores the weight of the testimony regard-
ing what was revealed at the hospital, and instead high-
lights the testimony of a single witness that supports
its conclusion. This is advocacy, not adjudication.
Perhaps the most deceptive aspect of the majority
opinion is its failure to give any weight to the fact
that the petitioner did present expert testimony at the
original trial regarding the burn time of the fire. The
majority strategically mischaracterizes that testimony
in considering the petitioner’s Brady material in the
context of the evidence presented at the original trial.
Specifically, at trial, the petitioner called Christopher
Marvin, who had served with the Manchester Fire
Department for twenty-two years, the last nine or ten
years of which he had held the rank of Deputy Fire
Marshal. Although the majority dismisses Marvin by
stating that he was ‘‘not a professional firefighter much
less a forensic fire expert,’’ Marvin was a certified fire
marshal who completed an initial 160 hours of required
training, and maintains certification by completing
ninety hours of required training every three years. He
testified that he had taken arson and fire investigation
courses through the state fire marshal’s office, the
national fire academy and also through college courses.
At the time of trial, he was attending college working
toward his degree in fire science. Considering Marvin’s
long years of service as a fire marshal, as well as his
extensive training, the majority’s reliance on his status
as a volunteer is deceptive by misdirecting the reader
from what is important, that is, his education and expe-
rience as a fire marshal. Marvin was qualified to offer
an expert opinion, and he did.
As part of its effort to downplay the significance of
Marvin’s trial testimony, the majority flatly misrepre-
sents it, suggesting that the petitioner did not call him
in order to question him regarding his investigation of
the fire, and implying that he was questioned regarding
the fire’s burn time only during redirect examination.
He was questioned extensively regarding his investiga-
tion of the fire during direct examination by defense
counsel, and he testified specifically regarding his con-
clusions, based on the evidence that he had observed,
regarding the burn time of the fire.
Marvin testified regarding his investigation of the fire,
the likely temperatures inside the apartment during the
fire, the rate at which the fire burned, and his conclu-
sions about the fire’s burn time. Significantly, during
direct examination by the petitioner’s trial counsel,
Marvin testified that he estimated that the fire had
burned for approximately fifteen to twenty minutes
before it reached its ‘‘highest heat buildup’’ at approxi-
mately 8:10 p.m. That time frame corresponds, in all
material respects, to the time frame mentioned in the
Ludlow note and the estimates given by the petitioner’s
new burn time experts. During cross-examination, Mar-
vin admitted that his estimate was rough and that the
state fire marshal who investigated the fire, Stephen
Igoe, was of the opinion that a burn time could not be
determined. Although the majority relies on Marvin’s
characterization of his estimate as a rough one in its
attempt to discount his testimony, his admission during
cross-examination that the number of variables
involved in determining the burn time of a fire makes
any estimate a rough one is consistent with the habeas
court’s factual finding that a burn time could not be
estimated with precision—of course, the majority can-
not mention this fact, since it is assiduously pretending
that the habeas court did not make that factual finding.
Marvin’s conclusion that it was not possible to offer
more than a very rough estimate was shared by the
other two fire investigators, Igoe and Joseph Roy, who,
he testified, also did not draw conclusions as to any
particular temperature range. Marvin explained on redi-
rect examination that the reason that his estimate was
very rough was because certain testing that could have
been performed at the scene—computer modeling and
computer testing, which would have permitted the
investigators to determine the exact temperatures of
the fire—had not been performed.
The majority also conveniently ignores the fact that
Marvin provided a very specific basis for his estimation
of the burn time, stating that he observed that there
were heat buildup marks on the kitchen clock that had
occurred when the clock hands had been at 8:10 p.m.,
leading him to conclude that the heat had reached maxi-
mum temperature at that time. He based his burn time
estimate on that specific observation, which he stated
provided a ‘‘base point’’ for determining the burn time
of the fire.
On redirect examination, the petitioner’s trial counsel
asked questions to expand on Marvin’s qualifications
as a fire investigator, asked a number of questions about
the scientific basis for his estimates, and also asked
about the fire’s burn rate and, again, about his burn
time estimate. Accordingly, the principal aspects of the
fire discussed during Marvin’s testimony at the criminal
trial (peak temperatures, significance of the smoke
damage, materials in the couch, speed at which the fire
burned on the couch, and duration of the fire) were
essentially the same facts disputed among the new burn
time experts almost two decades later at the habeas
hearing. The best that can be said, therefore, about the
petitioner’s Brady claim, is that he contends that had
the Ludlow note been disclosed to him, he would have
presented different, and in his view, better expert wit-
nesses to testify as to the burn time of the fire, in effect
getting a second bite at the expert apple. Presumably, in
weighing the effect of the Brady material, the majority
should have considered that an expert already testified
to exactly what the petitioner now claims he would
have an expert testify. The majority’s treatment of the
petitioner’s expert testimony, however, suggests that
this argument would be entirely new, provides yet
another demonstration of the majority’s assumption of
the role of advocate on behalf of the petitioner.
Ultimately, the most important question that the
majority must answer is this: Why is the Ludlow note
sufficient to undermine its confidence in the jury’s ver-
dict? No one contends that the note has any indepen-
dent significance. Indeed, no one actually knows what
the note means. And the testimony of the petitioner’s
experts regarding the burn time of the fire, standing on
its own, is irrelevant to the case. It is important to
recall that the only reason that the Ludlow note and
the testimony of the petitioner’s experts are relevant
at all is because they lead to the potential alibi testimony
of Martin. An assessment of her credibility is crucial
to the materiality of the petitioner’s Brady claim, which
is the only issue in this case. The significance and per-
suasive force of the petitioner’s burn time estimates
rise and fall on the strength of Martin as a witness.
Unfortunately for the petitioner, the habeas court found
Martin to be a terrible witness.
Although the majority claims that the resulting alibi
defense that the petitioner would be able to assert at
a new trial, predicated on the testimony of the new
burn time experts and Martin, would constitute ‘‘a com-
plete and potentially compelling alibi,’’ that claim is not
supported by the habeas court’s credibility findings as
to Martin. Martin testified before the habeas court in
this matter, so the habeas judge had the opportunity
to evaluate her credibility and the substance of her
testimony. The court expressly found that Martin’s testi-
mony did not provide the petitioner with ‘‘anything
that remotely amounts to an alibi.’’ During the habeas
hearing, Martin repeatedly testified that she does not
remember details from the day of the murder, she
appeared easily confused during the questioning, and
she contradicted some of her earlier testimony from
the suppression hearing.
At one point during the hearing, Martin indicated that
the petitioner may have, in fact, been out of the house
walking the dog when she came downstairs after bath-
ing her son. When asked where the petitioner was when
she was bathing her son, Martin replied: ‘‘I don’t know.
I didn’t—I don’t know. I went up to get Sean, my son,
ready, and I got him ready for bed. When we came
down, he wasn’t there, so I think he took the dog. I
don’t know. I’m—don’t want it—I don’t actually know
if—you know he went out. He probably went—could
have—he could have gone for a walk.’’ When the peti-
tioner’s counsel began to ask a follow-up question to
this answer, Martin interrupted and said: ‘‘Or I don’t
know where he was.’’ After showing Martin her prior
testimony from the suppression hearing, in which she
had testified that the petitioner was at home when she
came downstairs, the petitioner’s counsel asked her
whether the petitioner was at home, and she replied:
‘‘If he was there when I came downstairs, I came down
probably about the time my aunt called and then he
just left and went to my grandmother’s. If I—I’m saying,
I’m not—you know I’m not 100 percent positive.’’
The habeas court found Martin’s testimony to be
‘‘harmful to any alibi defense premised on [her testi-
mony]. . . . [Martin] testified that she did not know
whether [the petitioner] had been in the house (on
the night of the murder) while she was upstairs, if the
petitioner had been outside she would not have known,
and that she had no way of knowing if he had left the
house. It is difficult, if not impossible, to conclude that
[Martin’s] presence on another floor, while giving her
son a bath, not seeing or hearing the petitioner down-
stairs . . . provides the petitioner with anything that
remotely amounts to an alibi.’’
The habeas court’s finding regarding Martin’s lack of
credibility as a witness is devastating to the majority’s
conclusion that the petitioner has satisfied his burden
to prove the materiality of the Ludlow note. It is aston-
ishing that the majority has expended so much time
and effort in 123 pages arguing that the petitioner should
be able to present the ‘‘new’’ burn time evidence, and
has crafted a brand new rule for reviewing determina-
tions of expert credibility, specifically so that the peti-
tioner can present Martin’s ‘‘compelling’’ alibi
testimony. At the end of the majority’s yellow brick road
is Martin—who is not, by the way, an expert witness, so
the majority’s new rule does not apply—and who has
been found by the habeas court, as a matter of fact, to
lack credibility. Always prepared, however, the major-
ity simply employs its favorite strategy for dealing with
problematic findings—it simply pretends that the
habeas court did not find that Martin lacked credibility.
The majority’s failure to address, even once in its
lengthy discussion of materiality, the habeas court’s
crucial finding that Martin lacked credibility, provides
further evidence for my conclusion that the majority
began not with the applicable legal principles, but with
its apparent conviction that the petitioner is innocent.
The majority’s transparent advocacy merely illus-
trates the greater danger presented by today’s decision.
The majority acts without jurisdiction, flouts precedent
of this court from the prior two centuries, sandbags
the respondent, alternately ignores inconvenient find-
ings by the habeas court (i.e., the habeas court’s finding
that the burn time could not be determined with preci-
sion, and its finding that Martin was not credible) and
fails to accord deference to the remainder of those
findings (i.e., the habeas court’s expert credibility find-
ings), and brazenly insists that it is acting within the
rule of law. And today’s decision does not stand in
isolation, but is part of an emerging and disturbing
pattern in this court’s jurisprudence, beginning with
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 123, and
leading us to this point.
Today’s decision could be viewed as illustrating pre-
cisely the type of ‘‘subtle [distortion] of prejudice and
bias’’ of which Rawls warned, thus giving rise to a risk
of the appearance of impropriety. J. Rawls, supra, § 38,
p. 235. Prejudice and bias can discriminate against
groups not only by departing from the impartial rules
to apply a more negative rule to a certain group, but
also by a departure from those rules, as in the present
case, to apply a more favorable rule to a single individ-
ual. While bestowing a benefit that is not required by
and contrary to the rules on an individual may appear
to be benign, the flaw in that overly simplistic view is
demonstrated by comparing the case of the fortunate
individual to others who did not benefit from the spe-
cial treatment.
In the present case, in an extreme departure from
the impartial administration of public rules, the majority
does not defer to the credibility findings of the habeas
court. The majority bobs and weaves its way around
the applicable standard of review, obfuscating its distor-
tion of the law in a manner that somewhat conceals
the drastic nature of its departure from those rules.
Ironically, the Chief Justice, by succinctly stating the
new standard in her concurring opinion—namely, that
we properly may revisit the findings of the habeas court
because: (1) its credibility findings are not ‘‘ultimate’’
factual findings, but rather assessments of whether
there is a reasonable probability that a jury could credit
the testimony of the witnesses; and (2) because the
habeas court did not expressly state that it relied on
the demeanor of the witnesses, allowing this court to
infer that it relied only on the substance of their testi-
mony—highlights what the majority opinion obscures.
Not only is this standard of review new, it is an outland-
ish distortion of basic principles of appellate procedure
and is pretextual in nature. The Chief Justice cites to
no authority in support of the rule, for the simple reason
that none exists. This is a made up rule that benefits
one person—Richard Lapointe.
Although the majority and concurring opinions con-
tort both logic and the law in order to justify their
departure from hitherto unquestioned rules of appellate
procedure, this court, in a decision affirming the judg-
ment of the Appellate Court, very recently rejected an
invitation from a different petitioner to do precisely
what it does today. See Sanchez v. Commissioner of
Correction, 314 Conn. 585, 602 n.12, 611 and n.16, 103
A.3d 954 (2014). As Justice Zarella emphasizes in his
dissent, this court in Sanchez properly adhered to the
established rule that whether there is a reasonable prob-
ability that a new jury would credit new witness testi-
mony presents a question of fact for the habeas court
that we review only for clear error. In adhering to this
principle, we specifically considered and properly
rejected, in a unanimous decision, the reasoning of the
dissenting judge at the Appellate Court; id., 602 n.12;
who had drawn a distinction between a traditional cred-
ibility determination, as made by a jury, and the credibil-
ity determination made by a habeas court, which he
characterized as merely ‘‘assessments of the likelihood’’
that the jury would credit the witnesses. Sanchez v.
Commissioner of Correction, 138 Conn. App. 594, 605
n.2, 53 A.3d 1031 (2012) (Sheldon, J., dissenting).
Our proper refusal to depart from the impartial and
regular administration of the applicable legal principles
as to Jorge Sanchez, the petitioner in Sanchez, stands
in sharp contrast to the special rule that the majority
has made up in the present case for Richard Lapointe,
whose case has been a cause ce´le`bre for decades. I
emphasize that our decision in Sanchez was proper—it
is only when contrasted with the majority’s superhuman
efforts to benefit the petitioner in the present case that
our adherence to the law in Sanchez casts light on the
unfairness of the majority’s manufactured rule in the
present case. Undoubtedly, Jorge Sanchez would have
welcomed a court that saw fit to depart from the rules
in order to benefit him individually. Instead, he received
the impartial administration of the applicable legal
rules, which meant that this court and the Appellate
Court properly deferred to the habeas court’s credibility
findings. Indeed, Jorge Sanchez might well ask: ‘‘If this
is not a new rule, why was it not applied to me?’’
I do not offer my observations of the majority opinion,
or of our prior precedent, lightly. I do so because I owe
a duty to this court and to the rule of law. I believe
that Blumberg was an ill-conceived exercise of our
supervisory authority, and the abuse of power accom-
plished by the majority’s decision today makes Blum-
berg appear tame by comparison. These decisions jeop-
ardize the faith of the bar and the public in this court
as an institution that serves the law, rather than rules
over it. This court has been following an alarming path.
We have done damage to the rule of law, which we
have a duty to protect. At this point, we have a choice:
Shall we crown ourselves as philosopher-kings or
resume our proper role as servants of the law? One can
only ask where the path will lead to next.
1
The ‘‘Ludlow note’’ is a note authored by Detective Michael Ludlow of
the Manchester Police Department containing the following notation: ‘‘30–40
mins. [p]oss.’’
2
I observe that courts routinely instruct juries that innocence is not for
them to decide. The only question in a criminal trial is whether the state
has proven a defendant guilty beyond a reasonable doubt. That is exactly
what the state did at the petitioner’s original trial twenty-three years ago,
and the petitioner has not offered any evidence sufficient to undermine
confidence in the jury’s verdict.
I also observe that the Appellate Court concluded that the habeas court
properly rejected the petitioner’s claim of actual innocence, and that the
question of whether the petitioner proved his actual innocence claim is not
before us in this certified appeal. Lapointe v. Commissioner of Correction,
138 Conn. App. 454, 456, 53 A.3d 257 (2012).
3
The majority objects vociferously to Justice Zarella’s objective and
uncontroversial characterization of the Appellate Court holding, which is
consistent with my reading of the decision. The majority claims that this
very straightforward reading of the decision is ‘‘absurd’’ and ‘‘verges on
insulting’’ because such a reading would draw the inference that the Appel-
late Court incorrectly applied the Brady standard. The majority’s outrage
is ironic considering that the majority is importing to the Appellate Court
an intent to review factual findings de novo.
4
In a footnote, the majority also discusses a decision of the Appellate
Division of the New Jersey Superior Court. See State v. Behn, 375 N.J. Super.
409, 868 A.2d 329, cert. denied, 183 N.J. 591, 874 A.2d 1108 (2005). See
footnote 41 of the majority opinion. Because that case is not on point, I
need not address it.
5
Of course, the fact that there were no exceptional circumstances justi-
fying a departure from the established rules in Blumberg itself sent a signal
that did not go unnoticed. See C. Tait & E. Prescott, Connecticut Appellate
Practice and Procedure (4th Ed. 2014) § 8-2:5, p. 455 (‘‘The controversy in
Blumberg arose [out of] a private insurance dispute between the parties,
and the issue raised sua sponte involved an application of an established
common-law contract doctrine called ‘prevention.’ Thus, the issue raised
did not appear to have substantial public importance that extended beyond
the parties, and any lack of clarity regarding the prevention doctrine could
await refinement in a later case in which the parties had raised the claim
and the trial court had decided it.’’).
6
The majority claims that it ‘‘defies credulity to assert [as do the dissenting
justices] that the respondent was not on notice that we would decide the
claim . . . .’’ The best answer to that accusation is the respondent’s brief,
which merely asserts that the Appellate Court’s conclusion cannot be recon-
ciled with the applicable standard of review, and devotes a paragraph to
citing case law that sets forth the proper standard. Litigants include this
type of material in briefs to this court as a matter of course and as part of
their due diligence. The respondent’s assertion that the Appellate Court
decision is inconsistent with the standard of review cannot reasonably be
read to constitute an invitation to this court to reconsider that standard.
Indeed, it would be absurd for the respondent to request that this court
revisit a favorable standard of review.
7
I observe that the Chief Justice agrees with me in her concurring opinion
on at least this most uncontroversial and obvious point, that the majority’s
reliance on research that was never considered at the original trial or by
the second habeas court is improper.