Komisarjevsky Defense Appeals Release of Witness Lists

Defense lawyers for Joshua Komisarjevsky this week appealed the judge’s decision to release the witness lists to the Hartford Courant.

Judge Jon C. Blue earlier extended a stay of his order releasing the lists until May 4 after the defense for the second Cheshire home invasion defendant said they intended to ask for an Appellate Court review.

The defense lawyers have argued that releasing the witness lists could jeopardize Komisarjevsky’s right to a fair trial.

Also this week, the defense and prosecution picked the ninth member of the jury, and the defense used more than half of its peremptory challenges for excusing jurors without cause.

Komisarjevsky, 30, faces the death penalty for the triple homicide in 2007 of Jennifer Hawke-Petit and her daughters, Hayley and Michaela, during a home invasion kidnapping and robbery that turned violent.

His co-defendant, Steven Hayes, 47, was convicted in a separate trial in 2010 and is on death row appealing his execution sentence.

Komisarjevsky’s defense lawyers are attorneys Jeremiah Donovan, Walter C. Bansley III and Todd Bussert, who have been appointed as special public defenders.

Their appeal asks the Appellate Court to determine if Judge Blue was wrong to order the witness lists released to the Courant.

The matter was as "a classic conflict between constitutional rights," pitting the newspaper’s freedom of the press against Komisarjevsky’s right to a fair trial.

The lists name witnesses who might be called during the trial or the penalty phase, so jurors could say if they know anyone who might be a participant in the trial.

The state prosecutors said they have no objection to releasing the lists, but the defense argued that it might discourage some of their witnesses from testifying because they fear becoming targets of threats and intimidation if they are viewed as being on Komisarjevsky’s side.

At least one witness who reluctantly testified in the penalty phase for Hayes was the target of threats and Internet bloggers attempted to organize a boycott of her restaurant.

In court papers earlier this month, defense lawyers for Komisarjevsky said Judge Blue was "ingratiating" himself with the news media at the expense of their client’s right to a fair trial.

They cited other decisions by Judge Blue, including one earlier this year to allow reporters to send messages via Twitter, a social networking Internet technology, from the courtroom during trial proceedings. That decision was also appealed to the Appellate Court, which upheld Judge Blue’s ruling.

A source that is knowledgeable on the jury selection in New Haven Superior Court said the ninth juror is a 30-year-old woman who lives in Branford and works for Yale University. Three other Yale employees are also on the jury.

Attorneys must choose 12 regular jurors, six alternates and three backup alternates for the trial, which is scheduled to start on Sept. 19.

The defense has now used 21 of its peremptory challenges, and the state has used 17. Each side gets a total of 40, which they can use to excuse a juror without giving a reason. Usually the reason is the lawyers feel the juror would probably favor the other side.

The defense for Hayes only used 30 peremptory challenges during jury selection. Chief Public Defender Thomas Ullmann recently said he wonders if using more of them might have resulted in a life sentence for Hayes.

It is extremely unlikely that Komisarjevsky would be found not guilty in his trial. He and Hayes were arrested fleeing from the crime scene, they confessed to the crime and they accused each other of being the mastermind. Dr. William Petit, the husband and father of the victims who was beaten and tied up by the pair, will identify them in court.

Also, Komisarjevsky offered to plead guilty in return for a sentence of life without possibility of release, which was rejected by state prosecutors and a Superior Court judge.

The question that the trial will answer will be should he be executed, which is why the peremptory challenges are so important.

During the penalty phase, jurors will be asked to weigh the aggravating factors in the crime, such as the sexual assault of the victims, against mitigating factors, such as events in the defendant’s childhood that might have caused psychological problems.

Jurors are instructed to make their decision based solely on the evidence presented in court and the judge’s instructions on the law, not on preconceived opinions they have from news reports, conversations with acquaintances or their own personal experiences.

According to a New Haven Register article published on April 22, one prospective juror swore at Komisarjevsky and called him a "murderer" immediately after the defense used a peremptory challenge to excuse her from serving on the jury.