The Supreme Court's decision to overturn Richard Lapointe's 1992 murder conviction has me rethinking the Stations of the Cross. I'm not referring to Jesus' journey on the day he was crucified. I'm thinking of the more mundane trail of tears the families of those convicted of crimes walk.
Before Lapointe, it went something like this:
"I'm sorry to hear your husband/son/lover was convicted at trial. It will be very hard to undo that, if it can be undone at all.
"First, you can take a direct appeal. All of the words spoken at trial and the various pieces of paper, whether motions, exhibits or notes, constitute something called the record. The Appellate Court looks only at the record actually produced at trial to see if the trial was fair.
"If you lose the appeal, there is something called a habeas corpus petition. That is a trial about the trial. A judge, and not a jury, listens and decides this case. You can introduce new evidence about such things as the trial lawyer's performance. These cases are rarely won, but you can appeal a bad decision here too.
"Of course, you can always file a second, or even a third, or fourth, habeas corpus petition attacking the performance of prior habeas and jury trial counsel. Each new petition is harder to win than the previous one.
"Yes, we do this sort of work, but the state also will appoint a lawyer to do it. Some of the appointed lawyers are quite good. Others are just getting their feet wet at the expense of those whom they represent. But on balance, you ought to apply for counsel before spending money yourself. Odds are long, as I say."
I was preparing to walk a woman through the Stations of the Cross after reading the Lapointe decision. But it no longer rang true. Miracles can happen. The court can ignore settled law to create an exception for unique cases. It can decide issues never briefed by the parties. It can do that most ephemeral of things—"justice"—and set the condemned man free even decades after all reasonable probability of hope has been lost.
"Look," I told the caller, "the odds of success are very low in post-conviction work. But every now and then you get a ruling as in the Lapointe case, a ruling so shocking it seems as though anything is possible."
She wanted to know what I meant.
I couldn't explain.
How could I tell her that the high court can, when it chooses, create distinctions hitherto unheard of in our law? Appellate courts don't review credibility, correct? Well, not so. It can conduct a "foundational analysis" and decide which experts it believes, trial court be damned.
I'll read the Lapointe decision many times more before this high-minded gibberish begins to sound like law. Did our justices really trawl the nation's law libraries to find an Indiana appellate court case to craft this doctrine?
And what about justice as a game of spin the bottle? Did the justices really decide the Lapointe case based on an issue the parties did not raise? Well, that's not so bad, I suppose, so long as the court gives the parties a chance to be heard on the issue. Wait. What? The court did no such thing?
This new species of oraclism is terrifying. A Delphic court?
I'm glad a new trial was ordered for Lapointe, don't get me wrong. John Williams and I argued his appeal before this very court many, many years ago. The police treatment of this impaired man was an outrage. What's more, even if he committed the crime of killing his grandmother—and even the latest decision by the Supreme Court does not rule out that possibility—he's spent decades behind bars. He's old now; set him free.
But I read that Lapointe decision with a heavy heart. Only Justice Peter Zarella's dissent rings true and reflects the Stations of the Cross. The majority decision reads like a bad, and unedited, trial brief, replete with the kitchen sink, the floor tiles and refrigerator racks. It's now famous footnote 69, the one sniping at Justice Carmen Espinosa, represents a new low-water mark in snarkiness.
Criminal law practitioners now have every reason to throw everything they can muster against the wall of every court that will open its doors. The rule of law won't determine what sticks. Quirky justices will decide.
Good for Richard Lapointe, but bad for the rest of us. It's as though the law took a holiday in this case. I hope other defendants get as lucky.