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LAPOINTE v. COMMISSIONER OF CORRECTION—SECOND DISSENT

ESPINOSA, J., dissenting. I join Justice Zarella’s thorough and well reasoned dissent, which explains why

the applicable standard of review and governing principles 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 majority usurps the fact-finding role of the trial court in defiance of the constitutional limits on this court’s

jurisdiction, ignores this court’s own recently established 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 majority 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 conception of formal justice, the regular and impartial administration 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 foundational components of a just society, Rawls provided an

example of injustice to illustrate that even seemingly

innocuous, well-intentioned departures from impartiality 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 distortions of prejudice and bias as these effectively discriminate 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, however, 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 deferto the habeas court’s predicate 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 impartiality. The rule of law has been damaged by today’s decision, 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 demonstrates 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 parties 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

whetherit was material.’’ The majority further acknowledges that this court has expressly stated that the applicable standard of review is that ‘‘a trial court’s

determination as to materiality under [Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963)] presents a mixed question of law and fact subject to plenary review, with the underlying historical

facts subject to review for clear error.’’ (Internal quotation 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. Commissioner 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 majority, 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 respondent 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 constituted 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 petitioner 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 findings 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 concluded that the Ludlow note was not material. The

habeas court’s factual findings, however, are problematic 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 support 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 Ludlow 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 problematic for the majority. The answer is quite simple—the

majority apparently takes as its starting point the conclusion that the petitioner is innocent.2

It is not necessary 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 opinion, 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 petitioner’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 subsequent application of the majority’s new rule, the majority 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 petitioner is innocent, and, if left standing, those findings

would compel the conclusion that the habeas court

properly concluded that the Ludlow note was not material. 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 jurisdiction 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 pretend it is not there.

Because the majority cannot claim that the habeas

court made no factual findings, it is forced to acknowledge that the court did indeed make credibility ‘‘findings.’’ 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 findings, which it recasts as findings of persuasiveness,

rather than credibility. The majority appears to believe

that by substituting the word ‘‘persuasive’’ for ‘‘credible’’ 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 credibility 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 violation 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 credibility findings as to expert witnesses as somehow distinct 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 ofreview 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 witnesses, and irreconcilable with the fact finder’s discretion 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 criminal 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 Instructions, supra, instruction 2.5-1. This oversimplification

reflects either an inability to understand or an unwillingness to acknowledge the nuances involved in the factfinding process. The process of determining credibility

is an exercise of human judgment that cannot be accomplished 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 findings. 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 convicted.’’ 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 thatif 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 supportforthis 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 connection 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 ‘‘firsthand 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 ignoring 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 failure to mention even once in its 123 page decision a

recent Connecticut decision, which, like Bunch, discussed the appropriate level of deference afforded by

this court to the credibility determinations of the trial

courtin considering a claim predicated on newly discovered 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 credibility 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 majority’s dismissal of the dissenting justice’s novel theory

was not even remotely ambiguous—this court characterized 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 jurisdictional 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 ofreview,

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

withoutjurisdiction 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 jurisdictional 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 audacity 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 constitution, 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 contradicted 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 dissenting justices cry foul.

Under these circumstances, it is unconscionable to

fail to order supplemental briefing. The majority clumsily attempts to conceal the fact that it is adopting a

radical new standard ofreview 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 Wizard 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 maneuver, however, is that we should have seen this coming.

This court has been on a discernible path toward precisely 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 resolving 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 supervisory 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 necessary 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 exceptional 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 Practice 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 preserved 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 unwarranted path of issue spotting by appellate courts’’); D.

Klau, ‘‘Two Points Make a Line (And Suggest a Troubling Trend),’’ Appealingly Brief!, July 1, 2014, available

at http://appealinglybrief.com/2014/07/01/two-pointsmake-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 adversarial system of justice—norms like, ‘[i]t is a bedrock principle 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,’ ’’ Connecticut 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 tentatively 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 Environmental 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 encompassed by certified question, on basis that proper construction 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. Henderson, 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 sentence 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. Blumberg 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 uniformity of legal rules must yield to equity, thereby achieving 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 ourselves 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 cursory assertion that the Appellate Court’s decision cannot be reconciled with the applicable standard ofreview

to constitute a request to this court to revisit that standard 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 undertake 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 thattask admirably 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 convinced 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 dissecting 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 therefore 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 injustice 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 ‘‘consistent’’ 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 responsibility 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 accurate 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 apartment 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 suspicious. 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 evaluation 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 confessions 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 considered 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 Manchester 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, notwithstanding the majority’s sly remark that it will not comment 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 DandyWalker syndrome. The petitioner’s trial counsel, however, presented ample evidence of his mental disability

at trial in an attempt to call into question the voluntariness 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 petitioner’s testimony over the course of three days, and his

demeanor during the two months of trial. The jury considered 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 interview 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 evidence. Specifically, although the majority acknowledges 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 grandmother, the victim, Bernice Martin. The logic of the

petitioner’s thinking is fairly compelling—brutally raping and murdering the eighty-eight year old grandmother 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 sophistication 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 interpretation of the petitioner’s confessions is ‘‘that the petitioner 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 ‘‘thorough review of the transcripts of the petitioner’s testimony, 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 petitioner incorrectly described the method of strangulation 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 confession involuntary.

Consistent with the petitioner’s statements that he

was withholding information because he was concerned 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 evasiveness, 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 relevant 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 regarding what was revealed at the hospital, and instead highlights 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 experience 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 misrepresents 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 investigation of the fire during direct examination by defense

counsel, and he testified specifically regarding his conclusions, 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 conclusions 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 approximately 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, Marvin 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 cannot 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

particulartemperature range. Marvin explained on redirect 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 maximum 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 witnesses 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 verdict? No one contends that the note has any independent 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 persuasive 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 complete 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 testimony 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 bathing 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 petitioner’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 testimony]. . . . [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 downstairs . . . 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 astonishing that the majority has expended so much time

and effortin 123 pages arguing thatthe petitioner should

be able to present the ‘‘new’’ burn time evidence, and

has crafted a brand new rule for reviewing determinations of expert credibility, specifically so that the petitioner 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 majority 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 illustrates 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 findings by the habeas court (i.e., the habeas court’s finding

that the burn time could not be determined with precision, 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 findings), 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 precisely 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 individual. 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 special 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 ofreview, obfuscating its distortion 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 testimony—highlights what the majority opinion obscures.

Not only is this standard of review new, it is an outlandish distortion of basic principles of appellate procedure

and is pretextual in nature. The Chief Justice cites to

no authority in support of the rule, forthe simple reason

that none exists. This is a made up rule that benefits

one person—Richard Lapointe.

Although the majority and concurring opinions contort 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 judgment 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 whetherthere is a reasonable probability that a new jury would credit new witness testimony 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 credibility determination, as made by a jury, and the credibility 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 orderto 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 accomplished by the majority’s decision today makes Blumberg appear tame by comparison. These decisions jeopardize 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 Appellate 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 justifying 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 reconciled 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.