Richard LaPointe’s quarter century quest to undo his conviction (my backgrounder post) finally has the stamp of approval of the State’s highest court. Yesterday, in a fractious 4-2 opinion [PDF], the court affirmed two findings: 1. That there was a Brady violation when the prosecution did not disclose a potentially exculpatory note, and; 2. His first post-conviction attorney was ineffective for not pursuing that avenue almost a decade ago.
The basis is this: there was a note that was not turned over in which a police officer wrote notes from conversations with fire marshals. The note said: “30-40 min. Poss.” This has been interpreted to mean that the fire started at most 30-40 minutes before the fire marshals arrived. This is significant, because, if believed, it would put the start of the fire at a time during which LaPointe had a rock solid alibi. The question then was simply whether this note and the accompanying alibi defense would have created a reasonable probability that, if presented to the jury, the verdict would have been different.
The majority and the first dissent spend an awful amount of time on a particular legal nuance. The question was whether, in a true battle of experts, if the lower court judges believes one side over the other, not because of the witnesses themselves, but rather his or her opinion of the science and the impact of that on the verdict, can a higher court overturn that opinion or is that fact-finding, which a higher court is generally forbidden to do?
The dissent’s position is that it is never proper for an appellate court to reverse a lower court’s opinion on the impact of evidence on a trial and must always be taken as gospel, no matter how ridiculous it is.
I think it’s fairly common sense that a higher court should be able to evaluate a lower court’s opinion of science and its impact on a case. Otherwise a lower court could make all sorts of absurd findings – for example that the sun revolves around the earth, or gays can be cured – and then use those findings to uphold discriminatory laws and a higher court would be unable to do anything about it.
Frankly, the opposite is usually true: an appellate court upholds the finding that a withheld piece of evidence or a lawyer’s terrible performance or an improper jury instruction would have had no bearing on the outcome of a case.
The justices spend about 100 pages fighting about this. Most of it is a little tense, as is to be expected from divisive cases:
Justice Zarella contends that, in concluding that the third habeas court’s materiality determination is not entitled to deference, we have ‘‘summon[ed] down [our] deus ex machina’’ and decided an issue that the parties never raised, thereby ‘‘silencing’’ the respondent, inflicting ‘‘acute’’ harm on the state and ‘‘undermin[ing] the fairness of our judicial process.’’ Justice Zarella’s rhetoric may make for entertaining reading, but the facts categorically refute his accusations.
Some brief background is necessary in order to fully understand why Justice Zarella’s argument is both unfaithful to the record and baseless.
Clearly, Justice Zarella’s assertion that it is somehow unfair of us to decide the respondent’s claim against him fails because it is against all logic and common sense.
But the second dissent gets really nasty:
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.
It is not necessary to engage in any ‘‘divination’’ to discern the impetus driving the majority’s decision
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.
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
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.
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…
She then goes on to suggest that LaPointe, a man with some significant neurological shortcomings has been playing everyone for a fool for the last 25 years and that he is far more intelligent than he lets on.
The irony, of course, in all of this is known to those who watch oral arguments and read opinions. I suspect a majority of them would relate that Justice Espinosa is herself prone to these very failings she assigns to the majority. Her remarks, in this dissent, prompt this response from the majority, including the usually measured and moderate Chief Justice:
69 Justice Espinosa also has issued a dissenting opinion. To the extent that her opinion purports to raise any relevant points of law, they are identical to those raised by Justice Zarella, whose dissenting opinion we already have addressed. Thus, no substantive response to Justice Espinosa is called for.
We are constrained, however, to make the following brief observation. It often has been repeated and long understood that the principal purpose of the ‘‘great writ’’ of habeas corpus, which traces its origins to the Magna Carta, is ‘‘to serve as a bulwark against convictions that violate fundamental fairness.’’ (Internal quotation marks omitted.) Luurtsema v. Commissioner of Correction, 299 Conn. 740, 757, 758, 12 A.3d 817 (2011). ‘‘Because the writ is intended to safeguard individual freedom against arbitrary and lawless state action, it must be administered with the initiative and flexibility essential to [e]nsure that miscarriages of justice within its reach are surfaced and corrected.’’ (Internal quotation marks omitted.) Id., 757–58.
Today, a majority of this court, applying those venerable legal principles following a scrupulous and objective review of the trial record, upholds the decision of a unanimous panel of the Appellate Court in concluding simply that the state’s Brady violation, and the failure of the petitioner’s habeas counsel to recognize that violation, entitles the petitioner to a new trial.
Justice Espinosa reaches a different conclusion, which, of course, is her right. Rather than support her opinion with legal analysis and authority, however, she chooses, for reasons we cannot fathom, to dress her argument in language so derisive that it is unbefitting an opinion of this state’s highest court.
Perhaps worse, her interest lies only in launching groundless ad hominem attacks and claiming to be able to divine the (allegedly improper) personal motivations of the majority. We will not respond in kind to Justice Espinosa’s offensive accusations; we are content, instead, to rely on the merits of our analysis of the issues presented by this appeal. Unfortunately, in taking a different path, Justice Espinosa dishonors this court.