This post was initially titled “knock me over with a feather” because the CT Supreme Court actually granted [concurrence] a habeas corpus petition today on the grounds of ineffective assistance of counsel. But to go on and on about that would be petty and I am not a petty person, so I’ll restrict my glee to these opening sentences and instead focus on the merits of the claim instead: that trial counsel was ineffective for failing to present testimony from 4 neutral eyewitnesses who would have supported the third-party culpability defense.

If nothing else, this decision serves as a primer on the law of third-party culpability, so it’s more for me than you.

As with everything else, the inquiry starts and ends with relevance:

‘‘The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.’’ (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000)

‘‘Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt.’’ (Internal quotation marks omitted.) State v. Smith, 280 Conn. 285, 304, 907 A.2d 73  2006). ‘‘In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the offense. Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the jury’s  determination. A trial court’s decision, therefore, that third party culpability evidence proffered by the defendant is admissible, necessarily entails a determination that the proffered evidence is relevant to the jury’s determination of whether a reasonable doubt exists as to the defendant’s  guilt.’’ State v. Arroyo, supra, 284 Conn. 609–10.

What is a “more than bare suspicion”? I’ll tell you when I see it. But I do know what “more that bare suspicion” isn’t:

Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 827, 810 A.2d 281 (2002) (no evidence to support third party claim, in part, because no one at scene implicated alleged third party), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003); see also Floyd v. Commissioner of Correction, 99 Conn. App. 526, 531–32, 914 A.2d 1049 (insufficient evidence to substantiate third party claim when predicated on alleged testimony of unlocated drug dealers who were also gang members), cert. denied, 282 Conn. 905, 920 A.2d 308 (2007); Santiago v. Commissioner of  Correction, 87 Conn. App. 568, 591–92, 867 A.2d 70 (third party statements did not contain sufficient substance to support viable third party claim), cert. denied, 273 Conn. 930, 873 A.2d 997 (2005); Alvarez v. Commissioner of Correction, 79 Conn. App. 847, 851, 832 A.2d 102  (insufficient evidence to support third party culpability defense when petitioner called only one witness at habeas hearing who did not even observe shooting), cert. denied, 266 Conn. 933, 837 A.2d 804 (2003); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 684, 751 A.2d  398 (testimony not sufficient to raise third party culpability defense because supporting witnesses’ statements were inconsistent), cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000).

So now you know. Sort of.

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