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Komisarjevsky Seeks to Modify Judge's Witness Order

His defense lawyers have asked the judge to allow them to withhold the addresses for defense witnesses from prosecutors until after the guilt phase of the trial has ended.

Joshua Komisarjevsky’s defense lawyers have asked the judge to reconsider a ruling to order the defense to turn over its witnesses’ addresses to prosecutors.

The defense lawyers filed a motion on Sept. 2 requesting the judge allow the witnesses’ address remain undisclosed until the end of the first part of the trial, in which the jury would determine if Komisarjevsky is guilty or not guilty. (The full text of the motion can be seen in the attached pdf document).

Komisarjevsky, the second defendant to go to trial in the Cheshire home invasion triple-homicide case, faces the death penalty if he is convicted.

His co-defendant, Steven Hayes, was convicted last year and sentenced to death row.

During the home invasion on July 23, 2007, police reports said the pair kidnapped, raped, robbed and murdered Jennifer Hawke-Petit, severely beat her husband, Dr. William Petit, murdered their daughters, Hayley, 17, and Michaela, 11, and sexually assaulted Michaela.

The first part of Komisarjevsky’s trial is scheduled to start on Sept. 19. If convicted, the second, penalty phase of the trial would be held, in which the jury would weigh the aggravating and mitigating factors presented by the prosecutors and defense lawyer.

If the jury decides the mitigating factors, such as Komisarjevsky’s troubled childhood or a mental impairment, outweighed the aggravating factors, such as other violent crimes committed during the home invasion kidnapping and robbery, the jury could decide to sentence him to life in prison without the possibility of release or parole as an alternative to the death penalty.

The defense witnesses are believed to be those Komisarjevsky’s lawyers might call to testify during the penalty phase.

His lawyers, special public defenders Jeremiah Donovan, Walter C. Bansley III and Todd A. Bussert, said the witnesses might decide not to testify if they are interviewed by prosecutors from the State’s Attorney’s office.

In a previous ruling, Superior Court Judge Jon C. Blue rejected that argument. The new motion asks the judge to reverse that decision at least until the jury has decided if Komisarjevsky is guilty.

The defense lawyers said the Connecticut Practice Book, which sets rules for holding trials, does not require the release of witness addresses for the penalty phase until after completion of the "case in chief," which they said means the first phase of the trial.

They said no court has ever ruled whether that definition of the "case in chief" is correct.

Last month, the defense lawyers won a lengthy battle to keep the witness lists out of the hands of the news media when the Connecticut Supreme Court ruled in their favor.

The defense said releasing the lists could expose defense witnesses to threats and intimidation and jeopardize Komisarjevsky’s right to a fair trial.

It was a rare victory for the defense, which has lost almost ever effort to limit pre-trial publicity or keep Komisarjevsky’s fate from being decided by public opinion.

The case has generated intense news media coverage, and Komisarjevsky is viewed as possibly the most reviled criminal defendant in state history.

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