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Judge Denies Komisarjevsky New Probable Cause Hearings

Superior Court Jon C. Blue rules that the revised charges against Komisarjevsky are not substantially different from the original charges.

The trial judge for the second Cheshire home invasion case has denied a defense motion to hold new probable cause hearings on nine counts against the defendant, Joshua Komisarjevsky.

Superior Court Judge Jon C. Blue issued a decision today stating that none of the charges were substantially different or subject to more serious penalties than the original charges filed shortly after the home invasion triple homicides took place.

The nine charges included some of the most serious ones, which might lead to Komisarjevsky’s execution by lethal injection if he is convicted and the jury decides to give him the death penalty.

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The jurors could decide to sentence Komisarjevsky to life in prison without possibility of release or parole if they feel the mitigating factors outweigh the aggravating factors presented during the penalty phase of the trial.

Komisarjevsky is accused with murdering Jennifer Hawke-Petit and her daughters, Hayley, 17, and Michaela, 11, during the home invasion kidnapping. Other charges accuse him of sexually assaulting Michaela during the kidnapping.

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Steven Hayes, his co-defendant, was convicted in a separate trial in 2010 and sentenced to die by lethal injection.

The probably cause hearing issue arose because in March 2011, at the beginning of jury selection, State’s Attorney Michael Dearington filed revised charges against Komisarjevsky.

Originally, a few days after the triple homicide, the state filed 21 charges against Komisarjevsky. At that time Komisarjevsky waived his right to a probably cause hearing.

But when the revised charges were filed, Special Public Defender Jeremiah Donovan, one of Komisarjevsky’s lawyers, made an oral motion in court for new probably cause hearings on the new charges.

In his decision today, Judge Blue said he denied that motion without prejudice because it might have disrupted the jury selection process.

However, following the completion of jury selection in June, a new motion was introduced and arguments were heard this Thursday.

The defense claimed that any change in the charges, even the addition of a comma, should require a new probable cause hearing.

The judge agreed instead with prosecutors that revised charges do not require new probably cause hearings if the revisions are insubstantial enough.

He cited a 1992 case, State v. Diaz, which ruled that the purpose of a probable cause hearing was only to determine whether there is sufficient evidence to try a defendant on the charges that he participated in a particular crime.

Judge Blue said he divided the new charges into three categories. He said five of the counts were virtually identical with the original charges, "with only minor changes in phraseology," and so they did not require new probably cause hearings.

A second group of three charges were lesser offenses than the original charges. "A waiver of a probable cause hearing on a greater offense is likewise a waiver of a probable cause hearing on a lesser included offense," Judge Blue said, thus ruling that new probable cause hearing were not required on those charges either.

The remaining charge was different because it alleges that Komisarjevsky "did intentionally aid" Hayes in causing the death of Jennifer Hawke-Petit during the home invasion on July 23, 2007.

But Judge Blue ruled the allegation of accomplice liability does not trigger the right to a new probable cause hearing.

"There is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility," Judge Blue said.

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