'A Classic Conflict Between Constitutional Rights'

The legal battle over the release of witness lists in the Joshua Komisarjevsky trial is between conflicting constitutional rights, according to a professor.

Professor William V. Dunlap said either way the court decides the conflict it could result in an appeal, although not necessarily a successful one.

The battle is between the , which seeks the , and Komisarjevsky’s who might in the penalty phase.

for capital felony murder and other charges in the 2007 Cheshire home invasion triple homicide case.

The witness lists were to be released yesterday, but New Haven Superior Court Judge Jon C. Blue extended a stay of the release order until next Wednesday to give lawyers a chance to respond to a motion to keep the identity of the defendant’s daughter secret in court.

in Judge Blue’s courtroom in New Haven. This week, , reportedly a woman from Bethany.

Most of the news about the case recently involved the witness lists, which were prepared so jurors could see if they knew anyone participating in the trial, something that usually is cause for excusing a person from serving on the jury.

, Judge Blue sealed the lists, but The Courant filed a motion to vacate the order to seal. The defense objected on the grounds it could threaten Komisarjevsky’s right to a fair trial, but the judge ruled the defense had not shown that overruling the newspaper’s First Amendment right to public records was necessary to protecting the defendant’s rights.

"This is a classic conflict between constitutional rights," said Dunlap, who was asked by Patch to review the legal arguments and comment on it.

Dunlap teaches constitutional and criminal law at Quinnipiac Law School in Hamden.

The defense noted that a witness in the penalty phase of the trial of Komisarjevsky’s co-defendant, , received anonymous hate mail and threats after reluctantly testifying about Hayes’s demeanor as a dishwasher at her restaurant. Internet bloggers also attempted to organize a boycott of her small restaurant in retaliation.

Also, witness lists were kept sealed during the Hayes trial in 2010. Defense lawyers said that was their reason for promising witnesses that the Komisarjevsky witness lists would be sealed.

Dunlap said those arguments were not sufficient under the law to override the newspaper’s right to the witness lists. The defense must show a specific threat or intimation to discourage witness from testifying, he said, which it did not do.

Had Judge Blue ruled in favor of the defense, Dunlap said The Courant might have had grounds for appeal.

Appellate judges don’t like to overrule trial court decisions, as long as the lower courts follow the law, he said.

But what happens if the witness lists are released and a witness balks at testifying because of it?

Dunlap noted that there were many speculative possibilities that he did not want to comment on. "I have no idea what problems that might create," he said.

But if Komarisjevsky is found guilty and given the death penalty, and then the defense is able to show a witness in the penalty phase wouldn’t testify because the newspaper printed his or her name, that could be sufficient to argue that the defendant’s rights to a fair trial were violated, Dunlap said.

"I think it probably would be a basis for appeal," he added.