Manchester Journal Inquirer, Sept. 2, 2010
Why Lapointe should get new trial
David R. Cameron
After nine days of testimony spread out over three months, the habeas hearing of Richard Lapointe ended in early August. His lawyers and the state will submit post-trial briefs by the end of the year and Superior Court Judge John J. Nazzaro will decide in early 2011 whether to vacate Lapointe’s conviction and order a new trial for the sexual assault and murder of Bernice Martin, his wife’s 88-year-old grandmother, in Manchester on March 8, 1987.
As the hearing concluded, Nazzaro congratulated the lawyers on both sides for their outstanding work. They were indeed excellent. But Nazzaro is likely to spend more time in the months ahead thinking about other lawyers – those who defended Lapointe in the criminal trial and represented him in his first habeas hearing a decade ago.
The issue before the judge is not Lapointe’s guilt or innocence; it’s whether his trial and previous habeas counsel provided ineffective assistance, thereby depriving him of his due process right to counsel under the Sixth Amendment.
After the Connecticut Supreme Court upheld Lapointe’s conviction, he filed a petition for a writ of habeas corpus asking that his conviction be thrown out. The petition was heard and dismissed in 2000. Lapointe then filed another petition in which he claimed his counsel in the first habeas hearing, Henry Theodore Vogt, was ineffective in failing to recognize or offer proof regarding the state’s suppression of exculpatory evidence and the ineffective assistance of his trial counsel.
In 2007, after a four-day hearing, Superior Court Judge Stanley T. Fuger, Jr. granted the state’s motion to dismiss the petition. But last year, the Connecticut Appellate Court ruled Fuger had improperly granted the motion with respect to two aspects of the petition and remanded the case for further proceedings.
One aspect concerned notes taken by former Manchester detective Michael Ludlow about the “burn time” of the fire the murderer set in Martin’s apartment. The second aspect concerned his allegation that Vogt failed to argue that the trial counsel failed to use existing evidence to prove the unreliability of his three signed statements confessing to the crime or raise the possibility that someone else committed the crime.
The courts have established a high bar for proving that an attorney provided ineffective assistance. In its landmark ruling in Strickland v. Washington (1984), the U.S. Supreme Court said the proper standard for judging an attorney’s performance is “reasonably effective assistance, considering all the circumstances.” The performance must be shown to have been below an “objective standard of reasonableness.” It must not only be deficient, involving errors so serious that the attorney was not functioning as the “counsel” that is guaranteed in the Sixth Amendment to the U.S. Constitution, but must have prejudiced the defense, meaning the errors were so serious as to deprive the person of a fair trial, one whose result is reliable.
In assessing the performance, the court said every effort must be made to eliminate the distorting effects of hindsight, reconstruct the circumstances of the challenged conduct, and evaluate the conduct from the counsel’s perspective at the time. Because of the difficulties in making such an evaluation, it said a court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance.
But even with that high bar, it may be difficult for Nazzaro to avoid concluding that Lapointe’s trial and previous habeas counsel provided ineffective assistance.
Patrick J. Culligan and Christopher Cosgrove, who served as Lapointe’s trial counsel, acknowledged they didn’t call an expert to testify about the “burn time” of the fire – that is, when it was most likely set. Cosgrove acknowledged that, although the state had disclosed prior to the trial the existence of a tape recording of a two-hour interview of Lapointe’s wife by a Manchester detective, the defense didn’t play the tape at the trial, didn’t introduce the transcript of the interview as evidence, didn’t call his then-former wife as a witness, and didn’t seek a subpoena for her appearance. The secretly-recorded tape, played in its entirety at the recent hearing, supports Lapointe’s alibi that he was home watching television with his wife and son at the time the crime was committed.
Cosgrove couldn’t recall if they asked whether the clothing Lapointe claimed, incorrectly, in one of his statements Martin was wearing was found at the scene. He said they didn’t ask the forensic scientist about the clothes Martin was wearing or gloves, too large for Lapointe, found in the bedroom that had Martin’s hair on them. He couldn’t recall whether they made an issue of a pubic hair from neither Lapointe nor Martin that was found on the sweater she had been wearing. He acknowledged it would have been reasonable to put the clothing into evidence.
Vogt, a commercial lawyer, acknowledged that prior to representing Lapointe in his first habeas appeal he had never represented anyone in a habeas petition. He acknowledged he had limited experience in criminal cases and had never represented anyone as lead attorney in a criminal trial before a jury. He acknowledged receiving the notes that included the reference to the burn time of the fire before the 2000 habeas hearing but couldn’t recall whether he sought to admit them as evidence. He acknowledged that he represented they didn’t contain any exculpatory evidence and that he didn’t present any evidence, including testimony by an arson expert, regarding the burn time of the fire. He also acknowledged, as Judge Samuel Freed noted in dismissing the petition, that he failed to ask Culligan and Cosgrove why they didn’t present available evidence at the trial in order to buttress his claim that they provided Lapointe ineffective assistance.
Will the testimony from Lapointe’s former lawyers, coupled with all of the other testimony in the hearing, lead Nazzaro to decide to vacate his conviction and order a new trial?
We’ll find out next winter or spring.
David R. Cameron is a professor of political science at Yale University.