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 LAPOINTE v. COMMISSIONER OF CORRECTION—CONCURRENCE

   ROGERS, C. J., concurring. I agree with and join in the
conclusion reached by the majority that the judgment of
the Appellate Court ordering that the petitioner, Rich-
ard Lapointe, receive a new criminal trial must be
affirmed, because the petitioner proved that he was
prejudiced by his first habeas counsel’s deficient failure
to pursue a Brady1 claim predicated on the state’s sup-
pression of a note written by Detective Michael Ludlow
of the Manchester Police Department, who was the
initial lead investigator in the crimes underlying the
petitioner’s conviction (Ludlow note). See State v.
Lapointe, 138 Conn. App. 454, 53 A.3d 257 (2012). More
specifically, the petitioner has shown that, had the Lud-
low note been disclosed prior to his criminal trial, the
probability of a different outcome is sufficient to under-
mine confidence in the result of that trial.
  Although I embrace, for the most part, the thorough
and persuasive analysis employed by the majority to
reach this conclusion, I write separately to disavow the
majority’s repeated reliance on law review and social
science articles postdating the petitioner’s criminal trial
by many years as part of its assessment of the strength
of the evidence supporting the petitioner’s conviction
and, by extension, the likelihood that the addition of the
burn time evidence would have altered the outcome.2
Instead, I conclude that the record of the petitioner’s
criminal trial standing alone, without the embellishment
of subsequently produced research and literature that
was not in existence and, therefore, could not have
been considered by the jury at that trial, adequately
demonstrates that the case against the petitioner was
not a particularly compelling one.
   Because the majority opinion outlines the trial evi-
dence and its weaknesses in detail, a brief summary
here will suffice. The physical evidence against the peti-
tioner was practically nonexistent, such that the case
rested almost entirely upon his own incriminating state-
ments. Those statements were characterized by vacilla-
tion and equivocation, were expressed in an odd,
confirming fashion accompanied by repeated denials of
recollection and, on multiple points, were inconsistent
with the physical evidence. Significantly, the petitioner
inaccurately described the victim’s clothing, the num-
ber of stab wounds and the location in her apartment
at which they were inflicted, and the method of her
strangulation. It further was undisputed that the peti-
tioner suffered from a congenital malformation of the
skull that left him with cognitive, physical and sensory
deficits. Numerous acquaintances and relatives testified
as to his simplemindedness and gullibility. Several psy-
chiatrists and psychologists examined the petitioner
and also testified about his deficits, describing him simi-
larly as did the acquaintances and agreeing that he was
capable of confessing falsely to murder. Finally, various
witnesses’ testimony demonstrated that the knowledge
that the victim had been sexually assaulted was not, as
the state had asserted, uniquely in the possession of
the petitioner, but rather, was widespread.
   Instead of relying solely on the foregoing weaknesses
in the petitioner’s 1992 criminal trial to conclude that
confidence in the reliability of his conviction has been
undermined, the majority supplements the trial record
with secondary materials produced only recently,
within the last five or six years. My objection to the
use of these materials is twofold. First, as a temporal
matter, they were not in existence at the time of the
petitioner’s criminal trial and, therefore, could not have
been presented to, or considered by, the jury that con-
victed him. Accordingly, they should not be relied upon
by this court to evaluate the likelihood of a different
result had the Ludlow note been timely disclosed. Sec-
ond, as a jurisprudential matter, the majority, in dis-
cussing the content of extra-record materials in relation
to the specifics of this case, treads dangerously close
to employing those materials to make findings on appeal
in regard to the reliability of the petitioner’s confession.
This court repeatedly has drawn the distinction
between the proper use of extra-record materials such
as social science texts or journal articles as ‘‘legislative
facts . . . which help determine the content of law and
policy, and adjudicative facts . . . concerning the par-
ties and events of a particular case. . . . Legislative
facts may be judicially noticed [on appeal] without
affording the parties an opportunity to be heard, but
adjudicative facts, at least if central to the case, may
not.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Edwards, 314 Conn. 465, 478–79, 102 A.3d
52 (2014); see also State v. Rizzo, 303 Conn. 71, 97–98
n.16, 31 A.3d 1094 (2011); see also State v. Rizzo, supra,
184 n.81.
   I also want to emphasize certain points with respect
to the majority’s conclusion in part II B of its opinion
that it need not defer to the habeas court’s determina-
tion regarding the credibility of the petitioner’s expert
witnesses. Specifically, I would emphasize that this
court is concluding that it need not defer to the habeas
court’s credibility determination only because: (1) the
habeas court is not making an ultimate finding as to
the credibility of the expert witnesses, but is determin-
ing only whether there is a reasonable probability that
the jury could credit their testimony, pursuant to the
materiality standard of Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963);3 and (2) the habeas court did not
base its credibility determination on the expert witness’
personal demeanor, but on a factor that this court is
in as good a position to assess, namely, the substance
of the testimony. The majority is not holding, and I
would strongly reject any suggestion, that this court
may ever second-guess the factual findings of the ulti-
mate finder of fact, even when those findings were
based on the cold record. The majority also is not hold-
ing that the habeas court need not be provided with an
opportunity to assess a witness’ credibility on the stand,
even when it is addressing a claim pursuant to Strick-
land or Brady. Rather, it is concluding that, when the
habeas court has had that opportunity, and has con-
cluded only that the substance of the testimony under-
mines its credibility, this court is in as good a position
as the habeas court to make that assessment.
   Accordingly, I do not share Justice Zarella’s fear,
expressed in his dissenting opinion, that, as the result
of the majority opinion, the habeas court will no longer
have any important role to play when addressing Strick-
land and Brady claims. The habeas court still must be
afforded an opportunity to assess credibility based on
the personal demeanor of witnesses and this court will
continue to defer to such assessments. The majority
concludes only that, when a credibility assessment is
not based on the witness’ demeanor or on other factors
that this court is not in a position to evaluate, but is
based solely on the substance of the evidence, this court
is not required to defer to the assessment. In addition,
I believe that the rule that the majority adopts today
should apply primarily to the testimony of expert wit-
nesses, for whom demeanor generally is much less
important than the witness’ qualifications and the
soundness of his opinion when a finder of fact is
assessing his or her credibility, and should rarely if
ever apply to factual testimony. See State Board of
Physicians v. Bernstein, 167 Md. App. 714, 760, 894
A.2d 621 (2006) (‘‘[d]emeanor most often is a factor in
deciding the credibility of a fact witness who is testi-
fying about a fact that may be true or false, not of an
expert who is offering his opinion based on assumed
facts’’);4 id., 760–61 (Maryland Board of Physicians was
not required to defer to administrative law judge’s
assessments of credibility of expert witnesses when
assessments were not based on demeanor). Accord-
ingly, I have no reason to believe that the rule will be
invoked with a high degree of frequency.
   In all other respects, I agree with the majority opinion
and its ultimate holding that the judgment of the Appel-
late Court should be affirmed.
  1
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
  2
    The petitioner was convicted, after a jury trial, in 1992. The articles
relied upon by the majority were written between 2009 and 2013. See, e.g.,
part III C of the majority opinion (citing 2011 publication by B. Garrett);
footnote 74 of the majority opinion (citing 2013 article by D. Harkins and
2010 article by B. Garrett); footnote 83 of the majority opinion (citing 2012
article by G. Gudjonsson, 2009 article by R. Leo, and 2011 article by J. Masip).
  3
    Obviously, there are situations in which the habeas court does act as
the ultimate finder of fact. For example, if a petitioner raised an ineffective
assistance of counsel claim on the ground that his trial attorney was either
drunk or asleep during most of the criminal trial, the habeas court’s factual
findings on that issue would be final and binding on the reviewing court.
   4
     I recognize that, as Justice Zarella has pointed out in his dissenting
opinion, this court has held that the ultimate fact finder should consider
the demeanor of an expert witness when determining his or her credibility
and that this court must defer to that determination. I again emphasize that
nothing in this opinion or in the majority opinion is to the contrary. Rather,
the majority holds only that, when a habeas court is addressing a Brady
claim, has had the opportunity to consider the demeanor of an expert witness
and has found the witness’ testimony to lack credibility on the basis of its
substance, this court need not defer to that assessment.
