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******************************************************LAPOINTE v

. COMMISSIONER OF CORRECTION—SECOND DISSENT ESPINOSA, J., dissenting. IjoinJustice Zarella’sthorough and well reasoned dissent, which explains why the applicable standard ofreview 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 unfetteredjudicial activism and reflects a complete misunderstanding of the proper role that this court should play within the rule oflaw. Withnoreservationswhatsoever, themajority usurps the fact-finding role ofthe 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 ofjudicial economy, the majority functions as factfinder, counselandreviewingcourt. Andthemajority accomplishes all ofthis apparently with good intent and in the name ofjustice.
John Rawls explained the relationship between the rule oflaw,justice and the legal system: ‘‘[T]he conception offormaljustice, the regularandimpartialadministration 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 oflaw isjustice. One ofthe greatest dangerstoajustsocietyispresentedwhenoneinpower 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 compelledbynecessity. Significantly, immediatelyafter defining the interrelationship between these foundational components ofajust society, Rawls provided an example of injustice to illustrate that even seemingly innocuous, well-intentioned departures from impartiality and regularitypose a dangerto the rule oflaw: ‘‘One kind ofunjust action is the failure ofjudges and others in authorityto applythe appropriate rule orto 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 punishpolitical enemies, butrather ofthe subtle distortions ofprejudice andbias as these effectively discriminate against certain groups in thejudicial process.’’ Id.

Justice is not achieved by suspending the rules in order to benefit a single individual through a judicialdecision. 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 judicialrobe 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 arguedby either ofthe 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. Byrefusingtodefertothehabeas court’spredicate credibility findings and its ultimate factual finding that the burn time ofthe 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 ofimpartiality. 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. AsJustice 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 orthis 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 underStrickland 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.) Themajorityconcedesthatatthehabeas court ‘‘the sole issue with respect to the Ludlow note was whetheritwasmaterial.’’ Themajorityfurtheracknowledges thatthis courthas expressly statedthatthe 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 majoritythenblithely applies plenary review to the entire materiality determination, including the habeas court’s factual findings.
As Justice Zarella points out in his dissent, neither oftheparties has raisedthe issue onwhichthe majority resolves this appeal. Certainly, the respondent, the Commissioner of Correction, does not ask this court to reconsider awell established standard ofreviewthatin this instance favors the state. Justice Zarella aptly contraststherespondent’sbriefinthepresentcasewith 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 ofwhether 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—ifthe respondent is on notice,

as the majoritypurports, that this court will reconsider the appropriate standard ofreview, whydidthe respondent fail to brief the issue?
Astothepetitioner, notonlyhashefailedtochallenge the factual findings of the habeas court, he has expresslyabandoned any claimthatthose 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 onthatsubordinate factualfinding, the court ultimately found that ‘‘the precise time the fire was set cannot be determined.’’ (Emphasis added.) The courtgroundeditslegalconclusionthattheLudlow 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 tothepetitioner’sproposedalibi defense, the courtalso foundthatthe petitioner’s onlyalibiwitness, his formerwife, 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 necessarytoengageinany‘‘divination’’todiscerntheimpetus 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. Ifthe majority’s conclusion is not compelled by the law, and is in fact prohibited by it, it is reasonable to question whathas led the majority to arrive at its conclusion. Second, the tinted lens through which the majority views the petitioner’s case suggests an answerto that question—that is, the biased language thatthe majorityusesto 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 indicatingthatithas craftedthis 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’sjustified concerns regarding the subsequent application ofthe majority’s new rule, the majority states that its reliance onBunchv. State, 964 N.E.2d 274, 293 (Ind. App. 2012), isjustified 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 concludedthatthe Ludlownote was notmaterial. 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 onitspower, 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 ofCon-necticut, Inc., 311 Conn. 123, 161–62, 84A.3d840 (2014) ( Blumberg). Second, as a substantive matter, and as Justice Zarella explains, because this court lacksjurisdiction to renderjudgment 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 ofdismantling 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 somehownotreally credibilityfindings. The majority also suggests that determinations of expert witness credibility in particular are not actually credibility findings, because when atrial court evaluates the credibilityofanexpert, itis ‘‘assess[ing]’’thefoundation

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 notbe disturbed unless they are clearly erroneous’’ [internal quotation marks omitted]).

Themajority’sattemptto selectivelycategorize 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

afactfinder’sobservationsofthedemeanorofawitness 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 ‘‘ ‘bestjudgment,’ ’’ 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 habeasjudge to say the magic word ‘‘demeanor,’’ in order for this court to applythe standardofreviewwehave appliedwithout 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 ajury, ‘‘may disregard the [expert’s] testimony in whole orinpart.’’ Connecticut CriminalJury Instructions, supra, instruction 2.5-1. This oversimplification reflectseitheraninabilitytounderstandoranunwillingness to acknowledge the nuances involved in the factfinding process. The process of determining credibility isanexercise ofhumanjudgmentthatcannotbeaccomplished 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 ofthe dissenting justices inthis appealthattheparties hadno notice that themajoritywouldabandonourestablishedstandardof review for credibility findings, the majority turns to the analysis ofthe 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’’ ajury 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 ofCorrection, 138 Conn. App. 454, 479, 53 A.3d 257 (2012). The holding ofthe 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 ajury 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 concludedthatifajurywereto creditthatevidence, the jurycould conclude thatthepetitionerhad successfullyestablished 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 ofcredibility findings—but only as to expert credibility findings, andonlyintheBradyandStricklandcontexts, andonlywhenthehabeas courtomitsto state expressly that it considered the demeanor of the witness—is de

novo.Assupportforthisjaw-droppingstatement,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 forits astonishing new rule. In connection with a claim based on newly discovered evidence, notBrady material, the Indiana Appellate Court stated in 2012 that it would not deferto atrial court’s findings regarding the credibility of experts because that type of credibility determination is not based on a ‘‘firsthandevaluationof[thewitness’] demeanor’’butinstead 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 explainhowwe arrivedin Indiana, orwhywe 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 courtinconsideringaclaimpredicatedonnewlydiscovered evidence. See Skakel v. State, 295 Conn. 447, 991 A.2d414 (2010). Not surprisingly, the majorityinSkakel flatly rejected as ‘‘unprecedented’’ and contrary to our law; id., 487n.25; thesuggestionofthe dissentingjustice thatthis court shouldnot deferto the trial court’s credibility findings with respect to the videotaped testimony ofa witness, where the trial court had expressly stated thatbecause the witness hadnottestified atthe hearing

onthe petitionforanewtrial, that courtwas ‘‘unable toevaluate 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 onlyfailsto distinguishthis court’s decisioninSkakel

— it does not even deign that decision worthy ofmention, and instead relies on Indiana case law.

Nordoesthe majorityexplainhowitsreclassification of expert credibility findings made within the Brady andStrickland contexts somehow overcomes thejurisdictionalbarestablishedbyourconstitution, orwhy, for that matter, a different standard ofreview ofcredibility findings should apply in Brady and Strickland cases. Instead, the majority acts as though it just discovered

analreadyexistingruledictatingthestandardofreview,

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 withoutjurisdictioninviolationofourstateconstitution 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 Zarellain his dissenting opinion explaining thejurisdictional 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 ofthe fact that we recently and expressly rejected in Skakel v. State, supra, 295 Conn. 447, theveryprinciplesonwhich theBunch court relied, thatthe majorityhas 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 ourstate constitution, which clearly prohibit precisely what the majoritydoestoday—engagingin de novo reviewofthe 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 majoritylooks to Indianaforpermission, finds facts and simply insists that it is not doing so. It applies anastonishing 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 radicalnewstandardofreviewthatisbeyondthepower and contrary to the very essence ofthis court, in order to justify revisiting the habeas court’s factual findings intheabsenceofaclaimofclearerror, withoutallowing 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 ofhand is reminiscent ofthe Wizard of Oz exhorting Dorothy to ‘‘[p]ay no attention to thatmanbehindthe curtain!’’Atthatpointinthe 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 ofabuse ofjudicial 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 ofConnecticut, 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 supervisorypower, 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 ofthe factthatwe were blurring the line betweenjudging 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 thenewissue.5Id., 128. Second, wemustgivetheparties the opportunitytobeheard ontheissue. Id. Third, there must be ‘‘no unfairprejudice to the party against whom the issue is to be decided.’’ Id. The court specifically emphasizedthatalthoughallthreeconditionsarenecessary before we may sua sponte raise and consider anew 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 ‘‘inthe interests ofjustice’’ 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 surprisedyetpolite 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 authorityunderBlumberg ‘‘ifat 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 whichthis courthas exercisedits supervisoryauthority suggest that this court ‘‘has abandoned longstanding

normsthathavegovernedtheoperationofouradversarial system ofjustice—norms like, ‘[i]t is abedrockprinciple 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 onlytentatively into the Blumberg waters. Since that decision

was releasedlastyear, this courthas invokedBlumberg three times, andhas generallyadheredto the guidelines establishedtherein. SeeLanev. CommissionerofEnvironmentalProtection, 314 Conn. 1, 15–16n.16, 100A.3d 384 (2014) (resolving defendant’s claim that we could not address question of whether statute retroactively appliedtoplaintiffs’ conductbecause itwasnot encompassed by certified question, on basis that proper construction of statute as applied to plaintiffs necessarilymust 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 underplain 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 creditedwithstatingthatwithgreatpower
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., Statev.Medrano, 308 Conn. 604, 648, 65 A.3d 503 (2013) ( Norcott, J

., concurring) (‘‘[o]ur supervisorypowers are invoked only in the rare circumstance where

. . . traditional protections are inadequate to ensure the fair and just administration ofthe 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 oflaw

ensuresjustice within the legal system, there are some instances when justice is more properly aligned with principles ofequity. In those rare instances, the uniformity oflegal rules must yield to equity, thereby achieving justice.
On the otherhand, our extraordinary authorityto 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, ouruse ofit is virtually unreviewable—withfewexceptions,weareanswerable 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 supervisorypower arrogantly, without an awareness of its accompanying responsibility. The practical effect is obvious. By literally drawing a road map of all of the instancesinwhichwe nowhave given ourselveslicense to skirt around bedrock principles of appellate law, Blumberg encourages abuse ofour 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 ofpower 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 resultthatthe majorityreaches 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 contortsthe respondent’s routine and cursory assertion that the Appellate Court’s decision cannotbereconciledwiththeapplicablestandardofreview 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 fromthe language ofthe opinionitself. Fromthe outset, it is clear that the lens through which the majority focuses on the facts of the case is obscured by its apparentbias infavor ofthe petitioner. I will notundertake a detailed critique of the majority’s discussion of the merits of the petitioner’s appeal. As I have stated, JusticeZarellaalreadyhasaccomplishedthattaskadmirably in his dissenting opinion. I emphasize only some aspects ofthemajority’s discussioninordertohighlight 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 ofjail 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] intoanother’smind’’toknowthatperson’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).Absentastatementsettingforthaperson’sintent,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 inthe majority opinion. Despite neverhaving 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 forthe rule oflawbyreferring to ‘‘the sinking discomfortthatcomeswiththerealizationthataninjustice 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 forthe content ofthe 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 ofthe 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 extremelyvulnerable andimpairedman, 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 suggestitis willingto 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-mindedpersonwho isfamiliarwiththe 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 havesuchfamiliarityanddidhavesuchconfidence: The jury ofthe petitioner’s peers. The majority repeatedlyignores the fact that the petitioner had the opportunity to present whatever evidence he chose in support of his defense, to ajury 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 ofthe 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 conflictingaccounts abouthowoften 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 ajury 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 briefcatalogue ofthe state’s evidence further serves as an illustration ofthe primary method by which the majority tries to dilute the strength ofthe 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

ortothe habeas courtonthepetitioner’s secondhabeas petition, suchasthe opinion ofRichardLeo, aprofessor 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 ofthe 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 ofthe [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 offalse confessions, research that was neverpresented or considered in connection withthe 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 authorizedto act outside the rule oflaw. Additionally, by offering up the research that it has itselfreviewed, the majority appears to be trying on yet another hat, that of an expert witness.
The majority also relies on certain testimonythat 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 ofthe crime scene at approximately 8 p.m. on the night of the murder. That testimony has no bearing whatsoever on the strength ofthe 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-partyculpabilityisinadmissibleifthat ‘‘[e]vidence

. . . would raise only abare suspicionthat athirdparty, 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 ofhis 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 ofits observations ofthe petitioner’s testimony over the course of three days, and his demeanor during the two months oftrial. Thejury considered that evidence and concluded nonetheless that the confessions were both voluntary and reliable.

Themajorityalso contendsthatthetestimonyoffered bythe state attrialdetailingthepetitioner’spoliceinterview and resulting confessions ‘‘provides significant insight into

. . . the petitioner’s state of mind during questioning.’’ I agreethatthetestimonyprovidesinsight 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 thatthe petitionerhimselfexplainedto 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 towhythepetitionervacillated. Thepetitionerwasvery 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 ofyour 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.

Thepetitioner’s thinkingreveals alevel ofsophistication 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 ofthe trial transcripts, areasonable 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 suppresshearing, reflectanindividualwho answered questions quite wellbutneverthelesswas 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 onthe night ofthe murder. Itis ironicthatthe majorityand the concurring opinions have suchhigh expectations of the petitioner’s ability to recall details two years after the crime, considering much oftheir theory ofthe 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, andthat she still supportedhim andwould 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 summarizedthe 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 unanimouslytestified, however, thattheydidnot check the victim for sexual assault trauma when she was at the hospital that night and, further, that it would have beenhighlyunusual forthemto have done so underthe 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 ofsexual assault at the hospital.’’ Id., 699–700. Themajorityignorestheweightofthetestimonyregarding 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 aprofessional firefighter much less a forensic fire expert,’’ Marvin was a certified fire marshal who completed an initial 160 hours ofrequired 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 nationalfire academyand 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.

Marvintestifiedregardinghisinvestigationofthefire, the likelytemperatures 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 bythe petitioner’s

newburntime 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’scharacterization of his estimate as a rough one in its attemptto discounthis 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 assiduouslypretending 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 othertwo fire investigators, Igoe andJoseph Roy, who, he testified, also did not draw conclusions as to any particulartemperature range. Marvin explainedonredirect 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 Marvinprovided avery specific basis forhis 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., leadinghimto concludethattheheathadreachedmaximum 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.
Onredirectexamination, thepetitioner’strialcounsel asked questions to expand on Marvin’s qualifications

asafireinvestigator, askedanumberofquestionsabout 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 ofthe fire discussed during Marvin’stestimonyatthe 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 essentiallythe same facts disputed amongthe newburn 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 ofthe fire, in effect gettingasecondbite atthe expertapple. Presumably, in weighing the effect ofthe 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 ofthe 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 thejury’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 ofthe 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 atallisbecausetheyleadtothepotentialalibitestimony of Martin. An assessment of her credibility is crucial to the materiality ofthepetitioner’sBrady 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. Unfortunatelyforthepetitioner, thehabeas courtfound 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 burntime experts and Martin, would constitute ‘‘acomplete andpotentially 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 courtexpresslyfoundthatMartin’stestimony 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 onepoint duringthe hearing, Martinindicatedthat the petitioner may have, in fact, been out of the house walking the dog when she came downstairs after bathingherson. When askedwhere thepetitionerwaswhen 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: ‘‘Ifhe was there when I came downstairs, I came down probably about the time my aunt called and then hejustleft andwentto mygrandmother’s. IfI—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 petitionerhadbeen outside she would nothave known, and that she had no way of knowing if he had left the house. It is difficult, ifnot 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 ofthe Ludlow note. It is astonishing that the majority has expended so much time andeffortin 123pagesarguingthatthepetitionershould 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. Atthe endofthemajority’syellowbrickroad is Martin—who is not, bythe way, an expertwitness, 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 dangerpresentedbytoday’s decision. The majority acts withoutjurisdiction, flouts precedent of this court from the prior two centuries, sandbags the respondent, alternately ignores inconvenient findings bythe 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 ofConnecticut, 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’’ ofwhich Rawls warned, thus giving rise to a risk ofthe appearance ofimpropriety. 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 theimpartialadministrationofpublicrules,themajority does not defer to the credibility findings ofthe habeas court. The majority bobs and weaves its way around theapplicablestandardofreview, obfuscatingitsdistortion 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

weproperlymayrevisitthe findings ofthe habeas court because: (1) its credibility findings are not ‘‘ultimate’’ factual findings, but rather assessments of whether there is areasonable probabilitythat ajury 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 onlyis this standard ofreviewnew, itis an outlandish distortion ofbasicprinciples ofappellate procedure and is pretextual in nature. The Chief Justice cites to

no authorityinsupportoftherule, forthe simplereason 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 departurefromhitherto unquestionedrules ofappellate 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 establishedrulethatwhetherthereisareasonableprobability that a newjury 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 ofthedissenting judge at the Appellate Court; id., 602 n.12; whohad drawnadistinctionbetweenatraditionalcredibilitydetermination, asmadebyajury, andthe credibility determination made by a habeas court, which he characterizedasmerely‘‘assessments ofthelikelihood’’ that the jury would credit the witnesses. Sanchez v. Commissioner ofCorrection, 138 Conn. App. 594, 605 n.2, 53 A.3d 1031 (2012) ( Sheldon, J., dissenting).
Our proper refusal to depart from the impartial and regularadministration ofthe applicable legalprinciples

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 inSanchez was proper—it isonlywhencontrastedwiththemajority’ssuperhuman 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 inordertobenefithimindividually. Instead, hereceived the impartial administration of the applicable legal rules, which meant that this court and the Appellate Courtproperlydeferredtothehabeas court’s credibility findings. Indeed, Jorge Sanchez might well ask: ‘‘Ifthis is not a new rule, why was it not applied to me?’’

Idonotoffermyobservationsofthemajorityopinion,

or ofourpriorprecedent, 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 appeartame by comparison. These decisionsjeopardize 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 ourproper role as servants ofthe 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 ManchesterPolice Departmentcontainingthefollowingnotation: ‘‘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 ofwhether the petitioner proved his actual innocence claim is not before us in this certified appeal. Lapointe v. Commissioner ofCorrection, 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 thisvery 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 ofthe NewJersey Superior Court. SeeStatev. 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 inBlumberg itselfsent 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 Themajorityclaimsthatit‘‘defies credulityto assert [as dothe 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 merelyasserts thattheAppellate Court’s conclusion cannotbe 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 thatthe ChiefJustice agrees withme 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.