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SUPERIOR COURT

141 001

STATE OF CONNECTICUT

DOCKET NO. CR07-241860

SUPERlOR COURT

v.

JUDICIAL DISTRICT FOR NEW HAVEN Judicial Olstrlct of New HsTven

AT NEW HAVEN SUPERIOR COUR

FILED

FEBRUARY 4~ 2011 FEB 04 2011

STATE OF CONNECTICUT,

JOSHUA KOMISARJEVSKY.

CHIEF CLERK1S OFFICE DEFENDANT JOSHUA KOMISARJEVSKY'S MOTION TO DISMISS

COUNTS ONE THROUGH SIX (THE CAPITAL MURDER CHARGES)

AND POINTS AND AUTHORITIES IN SUPPORT THEREOF

COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel

and pursuant to General Statutes § 54¥56, to Practice Book § 41-8, to the Fifth and Fourteenth

Constitution, hereby moves for dismissal of the capital felony counts filed in the above-captioned

Amendments to the United States Constitution and to Articles §§ 8,9 of the Connecticut

matter on or about July 26,2007 - Count One (Murder, Multiple Victims, C.O.s. § 53a~54b(7);

Count Two (Murder of Person Under 16 Years of Age, C.G.S. § 53a-54b(8); Counts Three, Four

and Five (Murder: Victim of Kidnapping in violation ofC.G.S. § 53a-54b(5»; and Count Six

(Murder, Victim of Sexual Assault in the First Degree, C.G.S. § 53a-S4b(6»; - inasmuch as co-

defendant Steven Hayes has been convicted and sentenced to death relative to the murders of the

victims associated with these capital felonies, thereby rendering further prosecutionof Mr,

. .

Komisarjevsky in this regard a violation of due process. See State v. Hayes, Docket No. CR07-

241860. In support of this motion, Mr. Komisarjevsky states as follows:

1. On October 5, 20 1 O~ a jury sitting in the Superior Court for the Judicial District of

New Haven convicted Steven Hayes of Murder, Multiple Victims, C.G.S. § 53a-54b(7); Murder

of Person Under 16 Years of Age, C.O.s. § 53a·S4b(8); Murder; Victim of Kidnapping, C.O.s.

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§ 53a-54b(5); and Murder, Victim of Sexual Assault in the First Degree, C.G.S. § 53a-54b(6). As the parties to the instant case are well aware, the evidence adduced during the Hayes trial and the verdicts arising therefrom reflect a reality known since almost immediately after the defendants' arrests: while Joshua Komisarjevsky shares a significant degree of responsibility for the tragedy that occurred on July 23, 2007, Steven Hayes is the more culpable co-defendant and the person principally responsible for victims' pointless deaths.

(a) Steven Hayes confessed (to a defense expert) to the rape and murder of Jennifer Hawke Petit and, indeed, Hayes never contested killing Mrs. Hawke Petit by his own hands;

(b) Whereas it is uncontested that the Petit daughters died of smoke inhalation, as established in Hayes~ the state presented evidence and argued that Hayes both poured the gasoline and ignited the fire:

l) The state presented evidence of two statements given by Steven Hayes (inadmissible in Mr. Komisarjevsky's case pursuant to Bruton v. United States, 391 U.S. 123 (1968) and its progeny) wherein he admitted pouring the gasoline, as well as evidence by a putative expert that the gasoline pour was "continuous";

2) The state introduced no evidence indicating or alleging that Mr. Komisarjevsky was involved with the pouring of the gasoline. On information and belief, Hayes never so alleged (because it is untrue); and

3) Although the state presented evidence that Hayes's supposedly alleged Mr.

Komrsadevskv lit the fire (a putative overheard conversation, which is again inadmissible here under Bruton) - something Mr. Komisarjevsky categorically denies and the evidence belies - the State argued to the jury at the close of its

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case-in-chief that Hayes, in fact, lit the fire. Specifically, the state asserted

unambiguously: "I mean common sense indicates that the last one out is the one

who lights the fire. And Komisatjevsky came out first, and when he came around

the comer, again, he was in the lead. Doesn't it suggest to you that the last one

out is the one to light the fire? Certainly, someone is not going to stand there

while another person lights the fire." 1011110 Tr. 36. As set forth herein the State

cannot uOW be heard to offer an inconsistent theory of liability in Mr.

Komisarjevsky's case.

On information and belief, the State possesses neither admissible or credible evidence indicating

that Joshua Komisarjevsky poured any gasoline or, more significantly, ignited the fire that

resulted in the Petit daughters' senseless deaths. Quite the opposite, Mr. Komisarjevsky

anticipates the state will seek to admit the confession he gave police upon arrest, wherein Mr.

Komisarjevsky advised authorities concerning the circumstances surrounding Hayes's

unexpected pouring and ignition of the gasoline. Whatever his misplaced motivations and

[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that Justice shall be done.. .. It is as much his d.uty to refrain from improper methods calculated to produce a

intentions, Joshua Komisarjevsky never intemied'111Iyn1fe to die, or to be party to any deaths.

2. The state, as a prosecuting authority, holds a special place in the administration of

criminal justice. See, ~ Conn. Rules of Prof, Conduct Rille 3.8~Special Responsibilities of a

Prosecutor, Commentary C"A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate,"). As the United States Supreme Court long ago recognized:

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conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other gtounds~ Stirone v. United

States, 361 U.S. 212 (1960). Justice White offered his perspective in United States v. Wade:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be .... [Pjrosecutors represent the interests of society as a whole, including the interests of the defendant as a member of that society. In practice, however, the prosecutor makes decisions on behalf of the government and, in effect, defines the public interest in specific cases.

338 U.S. 218, 256-67 (1967) (White, J., dissenting in part and concurring in part).

3. There is little question that the public interest surrounding the instant matter involves

seeing Mr. Komisarjevsky convicted for his role in the charged of tenses as well as to never again

spend a day in free society. Mr. Komlsarievsky.undecstanda and concurs; he has offered to plead

guilty in exchange for a life sentence for the last three-plus years. Whereas the state has

remained steadfast in its stated intention to seek the death penalty in Mr. Komisarjevsky's case,

the fact that it has already secured that result against Steven Hayes as to all three victims renders

the continued pursuit ofthe above-referenced capital felony counts an effort in violation of due

process. Through the death sentence obtained in Hayes, the state has established that Steven

Hayes murdered Jennifer Hawke Petit and her two young daughters, therein precluding the state

from attempting to hold Mr. Komisarjevsky responsible for those murders. Specifically, the state

cannot be permitted to take Joshua Komisarjevsky's life for Steven Hayes's crimes.

4. "[Tjhe Due Process Clause forbids a state from using inconsistent, irreconcilable

theories to secure convictions against two or more defendants in prosecutions for the same

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offenses arising out of the same event.... Even if our adversary system is in many ways, a gamble, that system is poorly served when a prosecutor, the state's own instrument of justice, stacks the deck in his favor. The State's duty to its citizens does not allow it to pursue as many convictions [or execute as many people] as possible without regard to faimess and the search for truth," Smith v. Groose, 205 F.3d 1045, 1049, 1052 (8th Cir. 2000); see Stumpfv. Mitchell, 367 F.3d 594, 611 (6th Cir2004) ("we now join our sister circuits in finding that the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation"), vacated.Q!l other grounds, Bradshaw v. Stumpf, 545 U.S. 175, 186-88 (2005); Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997) (en bane) ("it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime"), rev'd Q!! other grounds, 523 U.S. 538 (1998). Relying on Smith, our Supreme Court affirmed that "the use of inherently factually contradictory theories violates the principles of due process."

State v. Colon, 272 Conn. 106,244 (2004); ~ Council v. Commr. of Correction, 114 Conn.App. 99, cert. denied, 292 Conn. 918 (2009).

WHEREFORE, for all of the reasons set forth above, together with such other reasons as may be advanced in any memorandum of law submitted and/or hearing conducted in connection herewith, Joshua Komisarjevsky respectfully prays the Court grant the relief requested.

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SUPERIOR COURT

I4J 006

. .

SL Y, III~ IN 407581

.-:..-----_

Bans1e ffices, C

20 Academy Street

New Haven, CT 06510

(203) 776-1900; Fax: (203) 773-1904 Bansley3@Bans1eyLaw.com

Respectfully submitted,

JOSHUA KOMISARJEVSKY, Defendant

Street-P .. B x 554

Old aybrook, CT 06475-4108

(860) 388-3750; Fax: (860) 388-3181 dono1aw@sbcglobaLnet

SERT, JNLf20221 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229

(203) 495-9790; Fax: (203) 495-9795 tbussert@bussertlaw.com

Attorneys for Joshua Komisarjevsky

THE COURT

.-ORDER

The foregoing Motion having been considered, it is hereby

Ordered: GRANTED / DENIED

By: , J.

I . I

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CERTIFICATE OF SERVICE

I hereby certify that) in accordance with Connecticut Practice Book § § 10-12, I O~ 13 and

10-14, a copy of the foregoing was served via hand this 4th day of February 2011 on the

Michael Dearington, State's Attorney

Gary W. Nicholson, Senior Assistant State's Attorney Office of the State's Attorney

235 Church Street

NewS::l~0651O ~

following:

~

Todd Bussert

Commissioner of the Superior Court

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