STATE OF CONNECTICUT

Judicial District of New Havei SUPIAIOR COURT FIL£O

MAR 11 2011 i

DOCKET NO. CR07-241860

SUPERIOR COURT

'\HIEF CLERK'S OFr JUDICIAL DISTRICT FOR NEW HAVEN

STATE OF CONNECTICUT,

v.

AT NEW HAVEN

JOSHUA KOMISARJEVSKY.

MARCH 11,2011

DEFENDANT JOSHUA KOMISARJEVSKY'S MOTION REQUESTING THE COURT IMPOSE A SENTENCE OF LIFE IMPRISONMENT WITHOUT

THE POSSIBILITY OF PAROLE OR RELEASE UNDER ANY CIRCUNMSTANCE FOLLOWING A CONDITIONAL PLEA OF GUILTY TO ALL COUNTS

COMES NOW Joshua Kornisarjevsky, by and through the undersigned and pursuant to

General Statutes § 53a-35a, and respectfully requests that the Court accept his conditional plea of

guilty to all pending charges in the above-captioned matter subject to the Court indicating that

upon acceptance of such a plea it will impose a sentence of life imprisonment without the

possibility of parole or release for any reason. Steven Hayes admitted raping and strangling Mrs.

Hawke Petit; Steven Hayes purchased the gasoline and doused the house with it, including

specifically over Mrs. Hawke Petit's body; and, as the state has already argued, Steven Hayes lit

the fire that culminated in the unnecessary, senseless and tragic deaths of the Petit children.

Coupled with these realities is the fact while Joshua Komisarjevsky is guilty of many things, he

never intended the deaths of Jennifer Hawke Petit or her two daughters, which he explained to

law enforcement while giving a prompt and detailed rendition of events that has been

corroborated in large measure by the state's forensic evidence. Thus, and notwithstanding the

meritorious defenses he can present at trial, Joshua Komisarjevsky offers a conditional plea for

many and various reasons, but primarily to avoid another lengthy, expensive and emotionally

charged trial that will undoubtedly cause extreme mental anguish to the Petit and to the Hawke

families, to the community at-large and to his own family, friends and supporters. Further in

support of this request, Mr. Komisarjevsky states:

1. On July 23, 2007, Joshua Komisarjevsky, along with co-defendant Steven Hayes, was

arrested for his involvement in a home invasion that resulted in, among other things, the

unnecessary, senseless and tragic deaths of Jennifer Hawke-Petit and her two daughters. The

state subsequently charged Mr. Komisarjevsky with, inter alia, the six capital felony counts with

which he now stands accused. See C.G.S. § 53a-54a.

2. Whereas the state elected to prosecute Steven Hayes, the person most responsible for

the three deaths, first, last fall a jury convicted Hayes of, inter alia, capital felony and sentenced

him to death - a sentence the Court imposed on December 2,2010. See Docket No. CR07-

241859.

2

3. As detailed in the attached memorandum filed in support of this application, Joshua

Komisarjevsky's participation in these crimes is appreciably different than Hayes's. For

instance, none of the victims died at Mr. Kornisarjevsky's hand, nor did Mr. Komisarjevsky ever

intend for anyone to die or knowingly act in a way to intentionally bring about the victims'

deaths.

4. Immediately upon being apprehended, on July 23, 2007, Joshua Komisarjevsky made

statements to law enforcement personnel, including during hours of interrogation wherein Mr.

Komisarjevsky candidly and in great detail admitted what he and Hayes had done, individually and collectively. I

5. Contrary to the public perception surrounding efforts to provide Mr. Komisarjevsky

with a defense to which the federal and the Connecticut constitutions entitle all criminal

I To the extent the Court may deny this motion and this case proceeds to trial, nothing in this motion or accompanying memorandum should be construed as a waiver of Mr. Komisarjevsky's right to challenge the legality how these statements were obtained.

defendants, Joshua Komisarjevsky has never attempted to avoid responsibility for or to minimize his conduct as it relates to this case. To this end, since fall 2007 Mr. Kornisarjevsky has consistently and repeatedly informed the state of his willingness to plead guilty to all counts, despite legitimate and cognizable defenses to many of the most serious counts (i.e., capital felony), in exchange for a sentence oflife imprisonment without the possibility of parole or release under any circumstance. Mr. Komisarjevsky's decision is influenced, in part, by the longstanding reality that even having valid defenses to the capital felony and other counts, no court in Connecticut will realistically sentence him to anything less than (literal) life imprisonment, that is, the "best case scenario" for Mr. Komisarjevsky is that will die in prison at the end of his natural life regardless of the fact that his culpability for the charged murders is significantly less than Steven Hayes's. See NOlth Carolina v. Alford, 400 U.S. 25 (1970) (standard is whether a guilty plea represents "a voluntary and intelligent choice among the alternative courses of action open to the defendant"); Brady v. United States, 397 U.S. 742

(1970) (guilty plea that would not have been entered except for the desire to avoid a possible death penalty is not for that reason compelled within the meaning of the Fifth Amendment). The state has steadfastly refused to resolve this case by extending to Mr. Komisarjevsky the opportunity to plead guilty in return for a sentence of life without the possibility of release, even after the state secured death sentences against Steven Hayes as to each of the three victims.

6. The state's unwavering interest in killing Mr. Komisarjevsky notwithstanding, the Court is authorized to impose any sentence within the statutory parameters for the crimes charged, which, in capital felony cases, means one of two penalties: life imprisonment without the possibility of release or death. C.G.S. §§ 53a-35a and 53a-46a. As long as the sentence imposed by the Court is within the statutory parameters, the fact that the state desires a longer or

3

more severe sentence does not in any way limit the Court's discretionary sentencing powers. The Court's imposition of its discretionary sentencing powers is an everyday occurrence in our criminal justice system. That this is a capital case does not obviate the Court's authority or ability to do justice.

7. The Court may consider myriad factors concerning the case and Joshua Komisarjevsky in finding that a sentence of life without possibility of release is the appropriate and just sentence here. Such factors include, but are not limited to, Mr. Komisarjevsky's complete and immediate cooperation with authorities; Mr. Komisarjevsky's immediate and detailed confession, though which he admitted his involvement in the tragic home invasion of the Petit home; Mr. Komisarjevsky's lack of intent to kill anyone; Mr. Komisarjevsky's culpability relative to Steven Hayes; and Mr. Komisarjevsky's personal characteristics and numerous mitigating factors (see General Statutes § 53a-46a(d) and otherwise).

8. Although the Court's imposition ofa sentence of life without the possibility of release carries several pertinent ancillary benefits (for example, saving Connecticut taxpayers millions of dollars - no small consideration during this time of severe economic crisis in our state and our nation that has resulted in, among things, layoffs of civil servants and public employees), it is fundamentally a just and appropriate sentence, which should be imposed. Accepting Joshua Komisarjevsky's guilty plea in exchange for a life sentence provides finality to a process that otherwise will take years to conclude if the state's effort to kill Mr. Komisarjevsky is successful, and, at a minimum, it will save taxpayers some $50,000 per year just to house Mr.

Komisarjevsky. The grant of this motion also spares the community the trauma and expense of another trial similar to the Hayes trial, while concurrently accounting for Mr. Kornisarjevsky's right to a fair trial, which has been irrevocably comprised due to the extreme and unprecedented

4

press coverage that has enveloped this case since July 23, 2007 and reached a truly exceptional

level during the Hayes trial part of which centered on reporting and opining on Hayes's

demonization of'Mr. Komisarjevsky.

9. The Court may well be reluctant to impose a life sentence without possibility of

release given the state's objection and the sensational, unrelenting and misleading media

attention that continues to this day. Respectfully, however, we submit that life without

possibility of release is the just and appropriate sentence given the totality of the circumstances

as they concern this defendant, which are set forth more fully in the accompanying

memorandum.

WHEREFORE, for all of the reasons set forth above, together with such the reasons

advanced in the attached memorandum of law andlor may be offered at any hearing conducted in

BY: .IERE~OVAN' IN 305346 123 Elm Street-Unit 400

P.O. Box 554

Old Saybrook, CT 06475~4108 (860) 388-3750; Fax: (860) 388-3181

donolCln,.~htTT..trnrn-.........t

connection herewith, Joshua Komisarjevsky respectfully prays the Court grant the relief

requested.

Respectfully submitted,

JOSHUA KOMISARJEVSKY, Defendant

WALTER C. "t3ANSLEY, III, IN 407581 Bansley Law Offices, LLC

20 Academy Street

New Haven, CT 06510

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

SERT, IN 42 221 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229

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

Attorneys for Joshua Komisarjevsky

5

ORDER

The foregoing Motion having been considered, it is hereby

THE COURT

Ordered: GRANTED! DENIED

By: , J.

DOCKET NO. CR07-241860

SUPERIOR COURT

STATE OF CONNECTICUT

STATE OF CONNECTICUT,

JUDICIAL DISTRICT FOR NEW HAVEN

v.

AT NEW HAVEN

JOSHUA KOMISARJEVSKY,

MARCH 11,2011

MEMORANDUM IN SUPPORT OF

DEFENDANT JOSHUA KOMISARJEVSKY'S MOTION REQUESTING THE COURT IMPOSE A SENTENCE OF LIFE IMPRISONMENT WITHOUT

THE POSSIBILITY OF PAROLE OR RELEASE UNDER ANY CIRCUNMSTANCE FOLLOWING A CONDITIONAL PLEA OF GUILTY TO ALL COUNTS

The defendant, Joshua Komisarjevsky, has moved the Court to exercise its discretion by

imposing the statutorily permissible sentence of life imprisonment without the possibility of

release following Mr. Komisarjevsky's conditional plea of guilty to all counts in the above-

captioned matter - a resolution that the state declines to allow. This memorandum is offered in

support thereof.

It is undisputed that Steven Hayes and Joshua Komisarjevsky entered into a joint venture

to conduct a home invasion that resulted in, among other things, the heartrending deaths of

Jennifer Hawke Petit and her two daughters. Yet, just like Mr. Komisarjevsky and Hayes were

and are very different people, so too their respective conduct in the events surrounding this

tragedy is different.

Nothing herein is meant, in any way, to minimize or excuse Joshua Komisarjevsky's

conduct or responsibility for the deaths of Jennifer Hawke Petit and her children. Rather, this

memorandum is intended to provide the Court facts personal to Joshua Komisarjevsky and his

participation in the crimes at issue that support the acceptance of conditional plea in exchange

for a sentence of life without the possibility of release, that is, to have Mr. Kornisarjevsky spend

the rest of his days in concrete. Irrespective of how the Court rules on this motion, Joshua Kornisarjevsky will die in prison. The only issue is whether Mr. Kornisarjevsky will die in at the hands of the state or at the ordinary expiration of his natural life.

BACKGROUND

I. JOSHUA KOMISARJEVSKY'S CONNECTION To STEVEN HAYES.

On June 6, 2006, the Connecticut Department of Corrections (DOC) transferred Joshua (Josh) Komisarjevsky to the Berman Treatment Center (Berman), an. intensive inpatient facility in Hartford, Connecticut. At Berman, Josh met Steven Hayes for the first time, and the pair shared a room briefly. Josh remembers Hayes then as "funny," "charismatic," and "a fat jolly guy." While at Berman, Josh, whose only child was born during his term of incarceration, participated in family group counseling and attended a Cocaine Anonymous group, which he later headed.

On July 30, 2006, Josh transferred from Berman to the Silliman House (Silliman), a residential re-entry work release facility. Josh remained at Silliman for approximately ten months. In August 2006, Josh found work with a contracting company as a skilled laborer. Josh was eventually promoted to foreman, working 70-80 hours a week. Emblematic of his performance, Josh's pay increased steadily from $10lhour to $21lhour in less than a year. In November 2006, one of Josh's supervisor wrote a reference letter in which he stated that Josh could not only be trusted to work alone but was put in charge of small crews oflaborers that had been with the company for years.

During his time at Silliman, Josh reunited with Hayes, his assigned roommate for some four months. Josh's contact with Hayes at Silliman was primarily in the evenings. Hayes

2

constantly needed help with money, with chores and with filling out forms. In our about

December 2006, Hayes violated the terms of his parole and returned to prison?

During his prior term of incarceration and time in the community on parole, Joshua

Komisarjevsky established and maintained a close relationship with his daughter. While at

Silliman, Josh grew concerned about his daughter's mother's drug use. In this regard, Josh

sought a furlough in February 2007. In support of the request, a Silliman staff member "Wrote:

"Client [Josh] is a role model of the house and is currently one of the two House Reps [house

representatives]; a leadership role that he has excelled in.' Client has secured and maintained

employment; has received many promotions and raises in pay, and even letters of

recommendation from his supervisor. Client remains disciplinary free and is focused on the

future." Joshua was approved for a 2l-day furlough under the sponsorship of his mother.

Because Josh was on furlough, the DOC assigned him a parole officer, on March 21,

3

2007, who reported that Josh had no disciplinary reports. In addition to the normal conditions of

parole, Josh was referred for a substance abuse evaluation and outpatient treatment, the latter of

which began on April 9,2007. On April 10,2007, Joshua Komisarjevsky was released from

2 Not until after his arrest in this case did Mr. Komisarjevsky learn that Hayes, while at the Gates Correctional Institution from December 2006 to March 2007, checked out 24 fictional books, the "majority" of which, according to the DOC, "pertain to very violent murders to include strangulation, rape, arson, serial killing, satanic torture and the burning of victims. Most victims are women." The titles include David Baldacci's Split Second, Dale Brown's Battle Born, Diane Guest's Lullaby, Colin Harrison's Manhattan Nocturne, Craig Holden's The River Sorrow, Greg Iles's Mortal Fear, Jonathan Kellerman's Twisted, Steven Krane's Teek, Rochelle Krich's Dead Air, John Lescroart's The First Law, Barbara Parker's Blood Relations, James Patterson's 1st to Die and Violets are Blue, RidleyPearson's Beyond Recognition, Steven Spruill's The Genesis Shield, Whitley Strieber's Unholy Fire and Steven White's Harm's Way. The DOC reported that two pages where missing from Unholy Fire, which it describes as concerning "[pjsychological terror and demonic possession", and that the preceding pages "describe a women (sic) being strangled, in detail." As of August 2007, the DOC was unable to locate seven of the books Hayes had checked out.

J Josh's responsibilities included setting up chore schedules, assisting other residents with job searches and acting as an ombudsman between the staff and the other residents.

Silliman House to his parents' home in Cheshire, which had formerly been his grandfather's home, at which time he began 90 days' electronic monitoring.

On April 19, 2007 , Josh spoke with his parole officer about difficulties he was experiencing visiting his daughter. Josh's concern about his daughter's mother's addiction issues led him to file a petition for custody of his daughter. After several hearings, the court, in May 2007, awarded Josh custody of his daughter. Josh maintained custody from that point through his arrest, providing and caring for his daughter with his family's support and assistance.

Subsequent to his release from Silliman, Josh continued to drive to Hartford to chair Cocaine Anonymous meetings. On May 3, 2007, the DOC paroled Hayes, who went to live with his mother and brother in Winsted. In June 2007, Hayes walked into one of the Cocaine Anonymous meetings Josh was heading. Soon thereafter, Hayes shared with Josh his unhappiness with his job. Josh, who was still working full-time for the contracting company,

had just started a side business to help earn extra income, and was awaiting his contractor's license. Believing Hayes to be energetic and personable, and available during the week while

J ash was working, Josh hired Hayes to assist him with the business and out of a sense of obligation to a fellow prisoner he wanted to help stay out of trouble.

To help the Court fully understand Josh's life at the time of the offense, we note that during the six weeks prior he was, among other things, (a) living with his parents and daughter in his childhood home in Cheshire; (b) working full-time with a Hartford-based contracting firm, supervising a crew oflaborers; (c) working evening and weekend side jobs as best as he was able in an effort to start his own contracting business; (d) chairing Cocaine Anonymous meetings in Hartford; (e) dating a the younger sister of a longtime friend; (f) driving and picking up his daughter as part of a court-ordered visitation schedule and because the child's mother did not

4

drive; and (g) engaged in ongoing court battles regarding custody and visitation issues. During this period of time, Josh started drinking and experienced difficulties sleeping. Notwithstanding the foregoing, Josh's parole officer's field notes indicate that Josh cooperated fully with all scheduled appointments, passed all drug screen tests and abided with all rules and conditions of his parole.

The pressure Josh felt to earn enough money to support his daughter (whose mother was paying no support), pay rent to his parents, and get a fledgling business off the ground mounted in the weeks and days leading up to the offense. Combined with this was pressure from Steven Hayes, who was having his own financial and personal problems, including the imminent prospect of being kicked out of his mother's home and needing to pay for a place to live so as to avoid another parole revocation. In the week preceding the offense, Hayes called Josh drunk one night and said he was going to kill himself, but Josh talked him out of it, assuring Hayes that he would help him get money for his own apartment, thereby satisfying his parole officer and staying out of prison.

II. THE INSTANT OFFENSE.

Joshua Komisarjevsky and Steven Hayes decided a couple of days before the instant offense to commit burglaries in order to obtain money and thereafter started to formulate a plan. It was not the first time Josh had committed a burglary. Josh began breaking into homes at a relatively young age. Although it evolved, Josh's modus operandi was fairly consistent over time. Josh, who preferred to act alone (independently) prided himself on being able to enter and exit dwellings without detection. Josh, who is relatively small in physical stature and has no prior convictions for crimes of violence, eschewed confrontation. Hayes, on the other hand, was apparently much more spontaneous and impulsive in his criminality, doing public' smash and

5

grabs' in broad daylight. The notion that Josh was the 'mastermind' who planned the instant home invasion is thus not entirely unfair; Josh had experience breaking into homes and Hayes did not. (As discussed below, however, Josh's willingness to commit a home invasion does not equate to a willingness to kill an innocent woman and her two innocent children.).

On the Friday afternoon before the instant offense, Josh left work and headed to a side, sub-contracting job he had gotten; his daughter was with her mother's family. He worked until sundown and slept very little that night. The next morning, Josh started working the side job early. Throughout the day, Hayes pestered Josh about Hayes's need for money. Evidence presented during the Hayes trial corroborates that Saturday night, Josh and Hayes broke into homes in Cheshire. In neither instance did they obtain enough money to satisfy Hayes and, notably, on the occasion Hayes came into a house he picked up a large knife in the kitchen. Josh did not welcome such spontaneity or visceral eagerness to engage in violence. On Sunday morning, Josh returned to the job, trying to wrap it up so as to spend time with his daughter, who had returned that weekend. Upon finishing, Josh went to the Stop & Shop parking lot, where he waited to meet the contractor for payment. It was there that Josh observed a mother (Mrs. Hawke Petit) and her daughter walk into the store. They were driving what Josh thought to be a very nice car, and they left the store just as the contractor arrived and paid Josh. Josh followed them home and then departed.

As on Saturday, Hayes pestered Josh most of Sunday. Hayes, who was desperate for money, called and texted Josh incessantly about making plans to do a "heist and to get it going." Josh put him off, however. After getting paid and after following Mrs. Hawke Petit home, Josh went home and spent time with his daughter before putting her to bed. He also communicated with his girlfriend, who had moved with her family out-of-State. Eventually, around 10:00 pm,

6

Josh acceded to Hayes's entreaties and met him at the Stop & Shop parking lot, where Hayes left the red pickup truck he was driving, Thereafter the pair decided to commit a home invasion of the Petit home.

Upon being apprehended fleeing from the scene the following morning (after crashing headlong and at great speed into parked police cruisers), Josh and Hayes were each questioned by police. Hayes said little more than things "got out of control" and that he knew nothing about anyone inside the house. Josh, however, told the officer that the mother was dead - he knew the moment he saw her - but that the two daughters were alive. Josh further explained where the girls were located and stressed that their situation was urgent.

Police arrested Josh and Hayes and transported them to the police station for questioning.

Whereas Hayes was vague and evasive, and ultimately stopped talking once police indicated they wanted to tum on a tape recorder, Josh spoke infonnaUy for several hours, discussing the particulars of the crimes. Then, when police informed Josh that they wanted to take a recorded statement, he obliged, giving an extremely detailed and candid audio taped statement regarding, among other things, what occurred within the Petit home during the commission of the crimes.

Josh explained to police that when he met up with Hayes on Sunday night they drove around for a while thinking of ways they could get money, legally or illegally. For instance, Hayes proposed robbing people who had just taken money out of an ATM machine or robbing people coming from a bar where he used to work. Neither of these ideas appealed to Josh, who then told Hayes about the apparently affluent mother and daughter at the Stop & Shop. With Josh opining that the house might have money in it, the pair decided to perform another robbery. However, it was done mainly "on the fly and there was no planning involved or anything .... "

7

For instance, they used clothing they had to cover their faces, and Hayes had on his person an unloaded BB gun purchased on Saturday night.

Josh and Hayes approached the Petit house from the rear and noticed a relatively large man both in height and weight sleeping downstairs. Hayes told Josh that he did not think that he (Hayes) could creep into the house quietly enough to get close to the man. Hayes suggested that Josh enter the house and find an object to use to incapacitate the man. So, around 2:15am, Josh entered the house alone via the unlocked cellar door. Once inside, Josh found a baseball bat on the basement stairs, which he carried upstairs and into the back room where the man slept. Josh stood by the man (William Petit) for what seemed, at least, 15-20 minutes while Hayes stood outside the window motioning for Josh to strike the man and "get it over with and get it done so we could move on." Josh struck Dr. Petit, including on the head. Once he believed Dr. Petit was immobilized, Josh unlocked the door, allowing Hayes to enter the house.

The pair bound Dr. Petit's hands and feet using rope found in the house, advising him that they were there for money and once they had what they wanted they would be gone. The pair then went upstairs, with Josh holding the baseball bat and Hayes holding the BB gun. They found Mrs. Hawke Petit asleep with her youngest daughter in a bedroom. They tied each up with the rope. The pair then found the elder daughter and also restrained her with the rope. Again, they said they were only there for the money.

Hayes questioned Mrs. Hawke Petit regarding other valuables in the house. Hayes then went through the house looking for valuables. Frustrated with Hayes's behavior, Josh went downstairs to check on Dr. Petit, who he found bleeding badly. Josh, who had some EMT training, got a towel to help stop the bleeding.

8

In his rummaging, Hayes discovered a check register indicating that the Petits had $40,000 in a bank account. Hayes and Josh discussed getting Mrs. Hawke Petit to go to the bank and withdraw $15,000. They decided that is what they would do, meaning they had to wait until 9:00 a.m., when the bank opened. When Hayes resumed rummaging for valuables, Josh instructed that they needed to move his van so it would not attract attention in the morning. This led to an argument about how to move the van. Prior to moving the van, the pair restrained Mrs. Hawke Petit and the girls to their respective beds.

They got the keys to Mrs. Hawke Petit's car and left the house. Hayes drove the Petit vehicle, and Josh drove his van, which they left in a nearby condominium complex parking lot. They returned together to the house, and no one appeared to have moved during their absence. Hayes resumed rummaging for valuables, with the tension between Josh and Hayes increasing as time wore on. As an example, Josh was annoyed that Hayes walked in front of windows where he could be seen. Josh was uncomfortable with the situation and felt "very out of control in the whole thing."

As it became light outside, the pair became concerned that neighbors would see Dr. Petit in the sunroom. So, they decided to bring him down to the basement. Although shaky, Dr. Petit was able to walk on his own. Once in the basement, Dr. Petit was restrained against a lolly column. Josh did not believe Dr. Petit was bleeding as badly as he had been. Josh went upstairs, took cushions off the living room couch and returned to the basement, sliding a cushion under Dr. Petit's head and lacing another one between the column and Dr. Petit's back.

Back upstairs, Josh was approached by Hayes, who motioned for Josh to follow him to an office where they could not be overheard. Hayes said they were going to need gasoline to burn the house because of DNA; they were convicted felons, and their DNA was on record. Hayes

9

said that even a drop of sweat or a hair falling off a head would put them back in jail. Josh was

surprised at the gasoline remark, but Hayes told him that they would take the occupants with

them in one of the family's vehicles before burning down the house.

Josh went downstairs. About 15 minutes later Hayes began yelling at Josh because of the

DNA and because Josh had used Hayes's real name in front of the family. Hayes began saying

they had to kill the family and bum the house down on top of them, not as conversation or

discussion and but as a statement of "how it is going to be." Josh said that he was not going to

kill anyone; "That was not in, that was not the plan. I'm not killing anyone. You know, that's

it, that's not how it's going down. Like, we were here simply for the money, get in and get

out. ... "

Hayes went into the garage and took several bottles of water and windshield wiper fluid

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and dumped the contents into a sink. Hayes informed Josh that he was going to get gas. Hayes

left the house in Mrs. Hawke Petit's car and returned with four containers filled with gas, which

he placed in the garage." While Hayes was away, Josh went into the youngest daughter's

bedroom and took several photos of her using his cell phone. When Hayes returned, Mrs.

Hawke Petit got dressed and prepared to go to the bank.

Around 9:00 a.m., Hayes left the house with Mrs. Hawke Petit to go to the bank to

withdraw money. During Hayes's absence, Josh took a picture of and sexually assaulted the

youngest daughter, later explaining the details of the incident to police. When Hayes returned,

the $15,000 was in four or five envelopes that he had in his hands. Josh reached for the

4 Unbeknownst to Josh, Hayes took a backpack of items he had stolen from the house and dropped them off in the pickup truck at the Stop & Shop parking lot. Among the items were jars of change and a pair of the elder Petit daughter's shoes. The former is consistent with Hayes being an impulsive criminal. The latter is consistent with Hayes's sexual fetishism, which, starting at a young age, involved sniffing women's shoes and having women's shoes shoved into his face during sex.

envelopes, but Hayes pulled them away. Hayes directed Josh to re-tie Mrs. Hawke Petit in the

living room.

Josh described how events then unfolded:

[Hayes] pulled me to the side ... we go into the dining room which was on the other side of the house, and says uh, very matter offactly, okay you, you ready, we gotta, we gotta kill them and bum the house down. I'm like, I'm not killing anyone, there's no way. I was, I'm not, I'm not there's, we have the money, there's not a problem, you know, they've done everything, don't know who we are, they can't recognize us.

* * * *

[W]e're going back and forth about urn, he's like, well then, you know, I'll kill the two daughters and you can kill the mom. I was like, I'm not killing anyone. I was like, I don't know how to put it more matter offactly, there's uh, no one's dying by my hand today. There, that's not going to happen. It's, it can't,

* * * *

I didn't want to kill anyone .... Like, like, it's not going to happen and we kept going back and forth about it. And finally he was like, you know what, f" *k it, I'll, I'll take care of them, all three of them .. " So he was walking around with a stocking uh, talking about he was going to just strangle them, all three of the women .... [Hayes] leaves to go into the living room where the mother is. And after a couple of minutes, he comes back and then over to the dining room where I am. But then he leaves again and to the other end of the house and made it back and went back and forth like, you know, 4 or 5 times. . .. It seemed like he was trying to like, psyche himself up for whatever, you know, like ... to do what he thought he needed to do ... and I'm sitting there and like, uh, I'm like beside myself, I'm like, I don't know what to do.

1 I

* * * *

[T]he 4th or 5th time that he had walked back into ... the room that I was in, the dining room, uh, he left me, and, and then he was in there for like, the room, 15 minutes ... [a Jlone with the mom yeah and I'm assuming he's just, still trying to psyche himself up, and urn, at which time I hear this noise down in the basement and, I certainly recognized it as the bilco door that led to the outside.

Hayes ordered Josh to check the basement, and on his way Josh witnessed Mrs. Hawke

Petit's lifeless body. Josh then went into the basement and discovered that Dr. Petit had left the

house.

I went back upstairs and told [Hayes] that he's gone. We gotta get out of here right now, we have, we have to leave right this second .... We gotta get out ... [WJe have to go now, like, there's no option .... And [Hayes's] taking all this time ... I don't know what is what he was thinking. He ends up taking the bag with the money in it, and, you know, shoving it in my chest and telling me to go start the car .... And I'm like, where's the keys, where's the key, where's the key. And he's like, I don't know, over there somewhere and we're going back and

forth, like, with our heads chopped off. And you know he darts into the

garage ... 1 tum around and start looking for these keys I tum back around

and, uh, he's pouring a whole bunch of gasoline on the kitchen floor and down the front hallway which leads to the stairwell.

* * * *

He then went up the stairs, uh, with two bottles urn and ... 1 followed him up the stairs, cause I, I couldn't understand like, I was like, you can't seriously be contemplating, burning these, these two girls alive .... I just like, that's unconscionable .... It is unreal .... It's really unreal. It's, you just can't. And urn. I was a little relieved, well not relieved but, that he had not poured it in the bedrooms, but, he had poured it up the stairway, down the hallway, and into the master bedroom ... I went to [the younger daughter]'s room, there was no gasoline in there, she was still in her bed. ... I closed the door and then I went down to the back towards the stairway, then past the oldest daughter's room ... I closed that door and I went downstairs.

12

Asked why he closed the doors, Josh answered: "1 can't imagine anyone being burned

alive .... 1 got myself in this horrible position, but ... they did what they were supposed to do.

There was no reason for them to die .... I don't understand this, this isn't the plan; we were

supposed to just get the money and get out, like hey. They haven't seen our faces, so what, 1

f**ked up you know. 1 used your name, there's a million Steves in this world." Josh closed the

doors to buy time, but he did not untie the daughters. Josh ran outside, thinking Hayes was

behind him. But when he got to the front of the garage, Josh realized Hayes was behind him no

longer.

Hayes had run upstairs again. Josh went back to the house, realizing he was being

watched from a neighbor's house. Hayes came back downstairs, throwing another empty

gasoline container into the kitchen as Josh approached the back door. Josh started toward the car

"screaming ... we gotta get out of here, this is madness." Hayes was trying to light matches, and

Josh kept "telling him we gotta go, we gotta go, we gotta go." Hayes was finally able to light a

It is incontestable that Joshua Komisarjevsky never intended the deaths of Mrs. Hawke

match and then ran to the vehicle.

Petit or her two daughters. Steven Hayes (belatedly) admitted raping and strangling Mrs. Hawke

Petit; Steven Hayes purchased the gasoline and doused the house with it, including specifically

over Mrs. Hawke Petit's body; and, as the state has already argued to the Hayes jury, Steven

Hayes lit the fire that culminated in the unnecessary, senseless and tragic deaths of the Petit

children. Also, whereas Mr. Komisarjevsky wore gloves the entire evening, up to the point

policed seized them, expert testimony offered by the state in the Hayes trial established that there

was no trace of gasoline on Mr. Komisarjevsky's gloves, making it clear that Mr. Komisarjevsky

had nothing to do with pouring the gas throughout the house.

13

Mr. Kornisarjevsky is clearly criminally culpable for crimes for which he should be

imprisoned for the remainder of his natural life without the possibility of release. In view of the

available evidence, however, Mr. Komisarjevsky should not be sentenced to death.

ARGUMENT

I. THE COURT, DURING THE PRETRIAL STAGES OF A CAPITAL FELONY PROSECUTION, CAN INDICATE TO THE DEFENDANT A CONTEMPLATED SENTENCE OF LIFE IMPlUSONMENT WITHOUT THE POSSIBILITY OF RELEASE UPON THE ENTRY OF A GUILTY PLEA.

In addition to the other charged offenses, Joshua Komisarjevsky seeks to enter a

conditional guilty plea to the charged capital felonies, General Statutes § 53a-54b, the authorized

sentence for each of which is "a term of life imprisonment without the possibility of release

unless a sentence of death is imposed in accordance with Connecticut General Statute 53a-46a."

C.O.S. § 53a-35a(1). General Statutes § 53a-46a(a) provides that when a person is being

prosecuted for a potential death sentence, a hearing must be held in accordance with General

In this instance, Joshua Komisarjevsky is willing to plead guilty and accept a sentence of

Statutes § 53a-46a(b) except under certain circumstances delineated in that subsection.

life imprisonment without the possibility of release, that is, one of the two available sentences

the law provides. There are two possible scenariosunder which such a resolution can occur.

First, Mr. Komisarjevsky agrees to plead guilty and the state agrees to a sentence oflife

imprisonment without the possibility of release. This type of plea agreement (i.e., between the

parties) occurs frequently in Connecticut's criminal courts", and it is consistent with the language

of General Statutes § 53a-35a. A § 53a-46a(a) hearing is unnecessary since the defendant, by the

terms of the agreement, is not "subjected to the penalty of death." Notwithstanding Mr.

Komisarjevsky's stated willingness to conclude the case in this fashion since almost the

14

inception of this prosecution, the parties have been unable to reach an agreement given the

state's apparent insistence on killing Mr. Komisarjevsky. This leads us to the second possible

scenario, a "court-indicated sentence," Which here means the defendant agrees to plead guilty

and the Court agrees to impose a sentence of life imprisonment without the possibility of release

over any objection that the state may raise. This type of plea also occurs on a daily basis in

criminal cases throughout the state. And, because life imprisonment without the possibility of

release is within the range of established and available sentences no § 53a-46a hearing is

required since the defendant is not "subjected to the penalty of death."

5 Notably, courts retain the ability to reject a plea agreement between the parties ifit is found that the proposed sentence is inadequate for the crime committed. Additionally, courts always retain the power to reduce an agreed upon recommendation in the interests of justice.

II. ALLOWING AN OBJECTION FROM THE STATE TO PRECLUDE THE COURT'S EXERCISE OF ITS AUTHORITY, IN IMPOSING A SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF RELEASE, VIOLATES BOTH SEPARATION OF POWER AND DUE PROCESS PRINCIPLES.

One hallmark of an independent judiciary is the unfettered ability to administer justice

through discretionary sentencing. Sentencing discretion by the judiciary is foreclosed if General

Statutes §§ 53a-35a(1) and 53a-46a are interpreted to allow the state to veto a Court-indicated

sentence and compel a penalty hearing. If that were to occur, sentencing discretion would

effectively be allocated to the state in clear violation of the federal and state constitutions.

A. Statutory Construction that Precludes the Court From Imposing an Indicated Sentence Over State Objection Violates Separation of Power Principles.

Foreclosing the imposition of certain statutorily permissible sentences by prosecutorial

fiat not only cuts deeply against the grain of Connecticut sentencing law, it also violates the

separation of powers considerations. "The powers of government shall be divided into three

15

distinct departments, and each of them confided to a separate magistracy, to wit, those which are

legislative, to one; those which are executive, to another; and those which are judicial, to

another." Conn. Const. Art. II. The test for determining whether a challenged statute infringes

on unconstitutionally on the power "confided" to the judiciary is well established:

[A J two part inquiry has emerged to evaluate the constitutionality of a statute that is alleged to violate separation of powers principles by impermissibly infringing on the judicial authority ... A statute will be held unconstitutional on those grounds if: (l) it governs subject matter that not only falls within the judicial power, but also lies exclusively within judicial control; or (2) it significantly interferes with the orderly functioning of the Superior Court's judicial role.

State v. McCahill, 261 Corm. 492, 505 (2002) (internal quotation marks omitted); see also, State

v. Angel C., 245 Conn. 93 (1998); Bartholomew v. Schweizer, 217 Corm. 671 (1991).

Interpreting General Statutes §§ 53a-35a(1) and 53a-46a(a) to afford the state power over the

court's sentencing discretion violates both parts of the relevant inquiry .

.L Section 53a-35aCl) governs subject matter that falls within the judicial power and lies exclusively within judicial control.

"The constitution assigns to the legislature the power to enact laws defining crimes and

fixing the degree and method ofpunislunent." State v. Darden, 171 Conn. 677,679 (1976). So

too "the judiciary's power to impose a particular sentence is defined by the legislature." Id. at

680. With very few exceptions, the Connecticut legislature has given the courts broad discretion

in imposing appropriate sentences.? One exception is capital felony cases, where the range of

statutorily defined sentencing options is narrowed to two: life imprisonment without the

possibility of release (i.e., a mandatory minimum life sentence) or death. C.O.S. § 53a-35a(I).

The legislature having established a particular range of sentences for a given offense, the

judiciary may choose and assign a given sentence within the prescribed range. See State v.

Miranda, 260 Conn. 93, 130, (2002) ("It is axiomatic that a trial court has wide discretion to

tailor a just sentence in order to fit a particular defendant and his crimes, as long as the final

sentence falls within the statutory limits."); State v. Huey, 199 Conn. 121, 126 (1986) (same);

C.G.S. § 53a-35a ("the [sentence] shall be fixed by the court"); id. § 53a-36. The state's power

to influence a capital defendant's eventual sentence is limited to the decision to charge a capital

felony; to persist in that charge; and, following conviction, to advocating that a jury return a

death sentence. At all other times, the sentencing power lies exclusively within judicial control.

6 This remained true even following the elimination of indeterminate sentencing in 1981. Compare C.G.S. § 53a-35 with id. § 53a-28. Despite these legislative efforts to curb sentencing disparity, judicial discretion is still broadly respected and, more importantly, required. All noncapital-felonies are categorized into one of four classes (A-D), each of which carries a range of statutorily prescribed sentences that set forth prison te1111s of varying lengths. C.O.S. § 53a-35a. As an example, most class B felonies, for are punishable with a sentence of between one and 20 years' imprisonment.

16

2. Denying the Court the power to impose an indicated sentence interferes impermissibly with the orderly functioning of the judicial role.

As described above, permitting the state veto power over a court's indicated sentence of

life imprisonment without the possibility of release effectively prevents this court - and courts

in all cases in which the prosecution insists on pursuing the death penalty - from accepting a

defendant's guilty plea in exchange for the harshest penalty, other than death, prescribed by law.

The Connecticut Supreme Court addressed such considerations in State v. McCahill, when it

affirmed a separation of powers challenge to a statute providing that "[a] person who has been

convicted of any offense, except ... [ one] involving the use, attempted use or threatened use of

physical force against another person ... may be released pending final disposition of the case."

261 Conn. at 506. The court struck down the operable statute, holding that its operation

"presents a significant interference with the orderly functioning of the superior court's judicial

role .... We consider the separation of powers challenge to have merit because of the superior

17

court's regular role in supervising the prosecution of individuals charged with crimes involving

the use of physical force against ariother person" Id. 509-10.

While there are fewer capital cases than forceful assault prosecutions, part of the superior

court's "regular role" is to supervise, manage and try cases, including a supervisory role over the

courtroom, the litigants, the proceedings and the very application of justice itself. The

sentencing function is the primary outlet for that application of justice, and the legislature has

given judges broad discretion necessary to impose fair and appropriate sentences. Sentencing

power with accompanying discretion supports and enhances the orderly functioning of the

court's judicial role. Deviation from established organizational and operational standards in

capital cases, as compared to all other cases, is inconsistent with this singularly unique judicial

role and violates the separation of powers principles.

.1. An indicated sentence in a capital case reflects comis' ability to balance the competing the state's and the defendant's interests in determining the appropriate disposition.

In State v. Daniels, 209 Conn. 225 (1988), the Connecticut Supreme Court affirmed, over

the state's objection, a trial court's decision to impose a life sentence following a hung jury in the

sentencing phase of a capital case.

A proper exercise of discretion involvers] a balancing process which weighs the interests of the state and society in having the defendant again stand trial against the interest of the defendant ... in not being subjected to a new trial.. .. The discretion to be exercised must be informed and guided by considerations of fundamental fairness that are ingrained in the concept of due process oflaw.

The trial court's comments both at the sentencing stage and in its articulation reveal, just such a balancing .... The court's comments about the unworkability of the statute and the futility of pursuing a second penalty phase, along with its statements about the victims' family, the inhabitants of the area and the resources of the state's attorney's office and the public defender's office, evidenced its concern for the interests of the state and society.

18

Id. 238, (citations and quotation marks omitted).

Daniels approves the court's exercise of its discretionary power in a capital proceeding,

precisely the sort of judicial discretion that a prosecutorial veto forecloses. Procedural posture

differences notwithstanding, Daniels makes clear the Court, not the state, is vested with the

discretion to conduct the balancing required to dispose of a capital case fairly and appropriately.

Any statutory construction that transfers the discretion to the state violates separation of powers

principles.

B. A Statutory Construction that Precludes the Court From Imposing an Indicated Sentence Over State Objection Violates the Due Process Guarantees of the United States and Connecticut Constitutions.

Even if constitutionally valid on its face, application of the capital sentencing statutory

scheme violates the due process guarantees of the United States and Connecticut constitutions

because it limits the range of statutorily prescribed sentences available to the defendant and

prevents courts use of its discretion. U.S Const. Amend. XIV; Conn. Const. Art. I, §8 .

.L By effectively limiting the full range of available statutorily prescribed sentences the statute denies the defendant due process of law.

The Connecticut legislature provides two possible penalties for defendants who have

convicted of a capital felony: life imprisonment without the possibility of release or death.

General Statutes § 53a-46a contemplates that, subject to guidelines regarding mitigating and

aggravating factors, each of these sentences may be imposed by either the presiding judge or the

impaneled jury. This guided sentencing discretion is tracks modem death penalty jurisprudence,

which mandates that the "ultimate sanction" may only be imposed after an individualized

determination of guilt and of worthiness of the sentence. See,~, Woodson v. North Carolina,

428 U.S. 280 (1976) (outlawing mandatory death sentences); State v. Ross, 230 Conn. 183,238

(1994) (death penalty statute "guid[es] the capital sentencer's discretion .... and provid[esJ a

meaningful basis for distinction" between cases), cert. denied, 513 U.S. 1165 (1995).

Should this court conclude that it cannot impose the indicated sentence Joshua

Komisarjevsky seeks, he shall be denied the full protection of Connecticut's capital sentencing

statute. Of the five sentencing outcomes ostensibly available -life imprisonment without

release imposed by three-judge panel, death imposed by three-judge panel, life imprisonment

without release as determined by jury, death as determined by jury and life imprisonment

without release imposed by one presiding or trial judge - only the first four would, in fact, be

available.

The statutory framework would thus serve to give the prosecutor the power, by refusing

to consent to judicial sentencing, to always block a guilty plea offered in exchange for a sentence

of life imprisonment without release. This, in courts, forecloses courts from the use of a court-

19

Mr. Komisarjevsky concedes that he does not have a right to receive any particular

indicated sentence to be imposed after a guilty plea, a procedure which is authorized and used

throughout the state in cases involving every type of crime except a capital felony prosecution.

This foreclosure denies Mr. Komisarjevsky the due process oflaw.

sentence as the result of a guilty plea. However, like any criminal defendant, he has the right to

receive a court-indicated sentence as long as that sentence is within the court's sentencing

authority, even if the prosecution disagrees. As the Connecticut Supreme Court recognizes:

It is undisputed that the defendant possesses a liberty interest that is implicated during the sentencing process ... [therefore] the sentencing process, as well as the trial itself, must satisfy the requirements of the due process clause ... the defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.

State v. Kelly, 256 Conn. 23, 84 (2001) (internal quotation marks and citations omitted). In this

20

case, the statutorily authorized sentencing range is severely and fundamentally limited if the

Court allows the state to veto it.

2. Prohibiting judges from balancing the competing interests of the defendant and the state in their determination of the appropriate disposition of a capital felony case ignores considerations of fundamental fairness that are ingrained in the concept of due process oflaw.

As noted above, superior court judges bear the responsibility of balancing "the interests

of the state and society" in determining the procedural disposition of a capital case. State v.

Daniels, 209 Conn. at 238. To be meaningful, this exercise of discretion "must be informed and

guided by considerations of fundamental fairness that are ingrained in the concept of due process

of law." Id. Denying judges the ability to conduct this balancing process in every case,

including those where the state is in opposition, creates the risk that these "considerations of

fundamental fairness" will be ignored and that the constitutional requirements of due process will not be satisfied. Such a risk is intolerable in a capital felony case.

Dissenting from the denial of certiorari in Callins v. Collins, 5]0 U.S. 1141 (1994), Justice Blackmun wrote: "to be fair, a capital sentencing scheme must treat each person convicted of a capital offense with the degree of respect due the uniqueness of the individual. That means affording the sentencer the power and discretion to grant mercy in a particular case." Id. 1143 (quotations marks and citations omitted). Due process cannot be reliably achieved through perpetuating prosecutoriaI power that prevents a court from imposing, what it considers, a fair sentence, in the interest of justice, that is within the sentencing framework provided by the legislature.

A court's ability to sentence a criminal defendant to a specified term within the statutorily authorized penalty range is at the core of a defendant's due process sentencing rights. Due process is also at the foundation of the court's discretionary power to impose a sentence as long as it is within the framework delineated by the legislature. Where the court believes that an agreed sentencing recommendation is too lenient, it may reject the plea agreement negotiated by the parties, and return them to their status before the entry of the plea. Similarly, the court may find, based upon a variety of factors, that the state's pursuit of the death penalty is unreasonable. The court's power to impose the more lenient sentence oflife imprisonment without the possibility of release, premised on its assessment of a variety of factors, and in the interests of justice, must not be foreclosed by prosecutorial veto. Negating this traditional judicial role in sentencing violates principles of fundamental fairness.

21

c. A Statutory Construction that Precludes the Court From Imposing an Indicated Sentence Over State Objection Encourages the Arbitrary Application of the Death Penalty in violation of the Federal and State Constitutions' Prohibitions Against Cruel and Unusual Punishment.

Any statutory interpretation that allocates to the state the exclusive power to determine

how a capital defendant will be sentenced risks the greatest danger inherent in the application of

capital punishment: arbitrary application of the death penalty - the potential for which triggers

both federal and state protections against cruel and unusual punishment.

.L Prosecution veto power over a Court's indicated sentence encourages the arbitrary imposition of the death penalty.

Connecticut statutes provide a defendant in a criminal case the right to elect a jury or a

court trial. C.G.S. § 54-82.7 The state has no right to veto that election. Should the state obtain a

conviction, it is the court that must impose a sentence within the statutory range for the offense

for which the defendant was found guilty. Outside of mandatory minimum sentences, the court

22

retains its inherent power to mitigate a sentence. Whether a sentencing system is predicated

upon guideline sentencing (~, the federal system) or a wide range of definite sentencing

discretion (~, the Connecticut system), the dourt has always been viewed in its neutral and

detached role as a judge, with no allegiance to either side, as far less arbitrary in the imposition

of sentence than a prosecutor who, while obligated to be fair in dealings with the defendant, is

advocating the state's interest in the outcome of a case. Sentence review is a further extension of

this judicial sentencing role. C.G.S. § 51-195. The dourt's role is no different whether imposing

a sentence pre-trial or post-conviction.

7 The defendant acknowledges that there is no constitutional right to a court trial; the right is granted by statute. See Singer v. United States, 380 U.S. 24, 34 (1965); State v. Hinckley, 198 Conn. 77, 91, (1985). Similarly, the court, outside of an agreed maximum sentence, has the power to reject an agreed upon recommendation as being too lenient given the totality of the circumstances of the case. While the court cannot summarily impose a higher sentence than that agreed to by the parties, it can allow the defendant to withdraw his or her plea and place the case back into trial status.

Pretrial discussions, a part of everyday practice in Connecticut, are designed to achieve

several objectives:

1) Enable the Court to determine if the parties can reach a meeting of the minds in terms of settling the matter;

2) Enable the Court to determine if it, in its caseload management role, can offer an indicated sentence that would result in a negotiated plea, a guarantee to the defendant that the Court will impose no greater sentence than that indicated in spite of what is sought by the state; and

3) Management of the case through discovery and trial preparation, should the case be incapable of a negotiated settlement short oftrial.

Traditionally, therefore, Connecticut courts have taken an active role in negotiating

settlements in criminal cases. It is not uncommon for a judge to tell defense counsel that even

though the state thinks the case is worth 40 years on a murder plea, from what it has learned in

pre-trial discussions, the case is worth 30 years; if the defendant is willing to enter a plea to the

charge of murder, the judge will guarantee the defendant a sentence of 30 years. There is no

valid reason to bar the Court from engaging in this process with a capital felony case. Frankly,

there is all the more reason for the Court to do so. If the Court thinks that pretrial discussions

support life imprisonment without possibility of release as a fundamentally fair sentence, the

Court has the inherent power to make this promise to the defendant in return for a plea to capital

felony.

To construe Connecticut's sentencing and death penalty statutes to preclude this option

would allow a perverse inequity to infiltrate the sentencing process. General Statutes § 53a-

46a(b) enhances the state's ability to channel the disposition of a death-eligible crime by

choosing, for example, the crime to charge and whether to pursue the death penalty. In so doing,

it gives rise to the most ignoble type of arbitrariness - not that the death penalty will be

imposed randomly, as some take "arbitrary" to mean, but that the power to determine how the

23

penalty will be imposed lies with the wrong authority. Such a construction favors prosecutors'

outcome-based goals over the individualized sentencing considerations that the United States and

Connecticut Supreme Courts have held essential to the constitutional application of the death

penalty. A distinguished group of law professors eloquently articulated this tragic flaw:

[T]he choice between imprisonment and death essentially depends on whether a particular prosecutor ... perceives sufficient value in the defendant's life to offset the horror that the defendant's crime arouses in this prosecutor. ... Such judgments are inherently recondite, idiosyncratic, and temperamental, varying widely from county to county and courtroom to courtroom. How could it be otherwise?

Anthony O. Amsterdam, et aI., Amici Curiae Brief of New York University Law School

Professors in People v. Harris, 27 N.Y.U. Rev. Law & Soc. Change 399, 449 (2001-'02).

This court has the opportunity to answer the question. By granting the instant motion to

impose a sentence of life imprisonment without the possibility of release, the Court can adhere to

the letter and spirit of constitutional precedent and protect Joshua Kornisarjevsky against the

24

inappropriate and arbitrary imposition of the "ultimate sanction."

2. By encouraging the arbitrary applica60n ofthe death penalty, General Statutes § 53a-46a(b) violates federal and state constitutional prohibitions against cruel and unusual punishment.

Of the many arguments presented in the Supreme Court's landmark ruling Furman v.

Georgia, 408 U.S. 238 (1972), the only one advocated by a majority of the Court - and thus the

basis of the holding - is that the Eighth Amendment prohibition against cruel and unusual

punishments forbids the arbitrary imposition of criminal sanctions. "The high service rendered

by the' cruel and unusual' punishment clause of the Eighth Amendment is to require legislatures

to write penal laws that are evenhanded, nonselective, and nonarbitrary." Id. 256 (Douglas, J.,

concurring). As a result of Furman, the Eighth Amendment has become the benchmark by

which Courts have assessed capital statutes, and a wariness of "arbitrariness" is the touchstone

triggering their review.

Although the Connecticut Constitution contains no explicit language similar to the Eighth

Amendment, our Supreme Court has held that the prohibition against cruel and unusual

punishments is embedded in the Connecticut constitution's guarantees of due process. See State

v. Ross, 230 Conn. at 246. Furthermore, the Connecticut Supreme Court has been explicit in its

insistence that the application of the death penalty must be achieved through appropriate

channels designed to mitigate the risk of arbitrary application. In Ross, despite rejecting the

argument that the death penalty is so inherently cruel and lacking in moral and sociological

justification that it is unconstitutional on its face because it offends evolving standards of human

decency, the Court held that "as a constitutional minimum ... a death penalty statute ... must

channel the discretion of the sentencing judge or jury so as to assure that the death penalty is

being imposed consistently and reliably." rd. 252. As argued ante, General Statutes § 53a-

25

46a(b) misallocates the power to select the sentencing entity and thereby encourages the arbitrary

application of the death penalty. In so doing, the statute fails the tests set forth in Furman and

Ross, and it violates both federal and state constitutional prohibitions against cruel and unusual

punishment.

D. A Textual and a Historical Analysis of the Statutes Reveals that Judicial Discretion Was to be Maintained.

The text of Public Act 73-137, which enacted Connecticut's "modem" (post-Furman),

death penalty suggests that a separate sentencing hearing is mandatory in capital felony cases,

but it does so fairly weakly. Subsection (a) states that "[aJ person shall be subjected to the

penalty of death for a capital felony only if a hearing is held .... " Therefore, it is logical to reason

that there can be occasions where no hearing is held. Subsection (b) states, that with one

exception (not applicable here), judges "shall" conduct a separate hearing following a capital

Section 53a-35as's text and legislative history clearly gives trial courts discretion to

felony conviction or guilty plea. The legislative history supports the interpretation of the

mandatory hearing. See Conn. Joint Standing Committee Hearings, Judiciary, 1973 Sess.,

pp.419-421; S. Proc., 1973 Sess., pp.1912-1913 .

.L General Statutes § 53a-35a grants the Court absolute sentencing discretion within a permissible statutory range.

sentence a defendant to life imprisonment without a hearing. Because this section was enacted in

1980 it supersedes the mandatory language contained in General Statutes § 53a-46a(b), which

became law in 1973.

First, the text of § 53a-35a gives the court discretion to sentence the defendant to life

imprisonment and mandates a fact finding hearing only where the judge decides not to do so.

The initial clause provides that "the term shall be fixed by the court as follows .... " What follows

26

textually is a range of sentences for the various classes of offenses. For a capital felony, § 53a-

35a(1) provides two options: "life imprisonment without the possibility of release" and "death ...

imposed in accordance with § 53a-46a." The most sensible, plain reading of these two parts of

the statute are that they grant the judge the discretion to either (l) sentence the defendant to life

in prison or (2) not do so and thereby require a § 53a-46a hearing to determine whether or not

death will be imposed. There is absolutely nothing in the language of § 53a-35a that

distinguishes ajudge's sentencing powers with respect to capital felonies from sentencing

powers with respect to any other class of felonies. See C.G.S. §§ 53a-35a(2)-(9).

Second, § 53a-35a's legislative history, which instituted determinate sentencing, makes

clear that it grants judges immense discretionary power to sentence however they see fit, so long

as they stay within the statutory ranges. The bill "s proponent, Rep. Onorato, argued on the

House floor that "judicial discretion in sentencing is both appropriate and necessary," and noted

that "[t]his bill ... leaves it up to the judges to impose the proper sentence." 23 H.R. Proc., Pt.14,

1980 Sess., pp.4336, 4338. Opponents of the bill also understood it to increase the judges'

power. Rep. Berman expressed concern with disparity in sentencing, first arguing that the bill

[a] judge has the total range within that sentencing structure ... [If] its one to twenty, or whatever, he can pick a sentence and that is the sentence that the individual will do ... Anything within the statutory range ... [W]e've just left this entirely up to the judge.

did nothing to address the problem. Berman then noted that the bill, in fact, goes in the opposite

direction because:

23 H.R.Proc., Pt.14,1980 Sess., p. 4330.

Therefore, both the text and the legislative history of § 53a-35a support Mr.

Komisarjevsky's view that the statute grants judges the power to sentence at their discretion

within the statutory ranges. This power includes the discretion to sentence a capital defendant to

27

life imprisonment without the possibility of release. C.O.S. § 53a-35a(1).

2. General Statutes § 53a-35b was only intended to clarify the minimum penalty for capital felony and does not substantively redefine the capital sentencing procedures.

Enacted in 1985, § 53a-35b provides for "life imprisonment without the possibility of

release, imposed pursuant to subsection (g) of section 53a-46a, in which case the sentence shall

be imprisonment for the remainder of the defendant's natural life." While some may read this

provision to imply that life imprisonment without the possibility of release may only be imposed

after a separate hearing, thereby eliminating the possibility of unilateral judicial sentencing, the

legislative history does not support such an interpretation. The statute defining life

imprisonment without the possibility of release increased the minimum sentence for capital

felony from 60 years to a true and factual life imprisonment. The legislative history of this

statute makes absolutely clear that the purpose of the "imposed pursuant to" language was to

The "imposed pursuant to" clause was added by an amendment to the bill, and the

make absolutely clear that the sentencing increase applied only to capital felony.

sponsor of the amendment described its purpose as follows:

The amendment would clarify the fact that life without the possibility of release is only available to capital felonies ... It's just to clarify that. It seemed unclear.

28S. Proc., Pt.10, 1985 Sess., p.3474. Similarly, Sen. Johnston, speaking in favor of the

amendment, stated that the amendment "clarifies that [sentencing increase] would only apply to

capital felonies." H.R. Proc., Pt.17,1985 Sess., p.6114. Thus, the purpose of the reference to

subsection (g) in the statute was simply that this clause of the bill only applied to capital felonies.

It was clearly not intended to substantively redefine the capital sentencing procedures by

28

eliminating the judicial discretion already codified in § 53a-35a.

The text of the determinate sentencing statute and the legislative history of the statute

defining life imprisonment support Mr. Komisarjevsky's view that the Court is statutorily

authorized to sentence a capital defendant to life imprisonment without the possibility of release

even if no hearing is held.

III. BECAUSE No VALID STATE INTERESTS ADEQUATELY JUSTIFY EXECUTING JOSHUA KOMISARJEVSKY, THE IMPOSITION OF THE DEATH PENALTY IN THIS CASE VIOLATES THE EIGHTH AMENDMENT'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

The Supreme Court of the United States has consistently held that the imposition of

capital punishment must be found to serve a legitimate state interest to comport with the

protections provided by the Eighth Amendment. In Furman, Justice Brerman, writing as part of

the plurality, observed:

The final principle inherent in the [Cruel and Unusual Clause of the Eighth Amendment] is that a severe punishment must not be excessive. A punishment is

excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it, is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive.

Furman v. Georgia, 408 U.S. at 279.

Subsequently, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court stated: "Although we

cannot 'invalidate a category of penalties because we deem less severe penalties adequate to

serve the ends of penology,' the sanction imposed cannot be so totally without penological

justification that it results in the gratuitous infliction of suffering." Id. 182-83 (citations

omitted). The majority then noted two principle state interests served by the death penalty:

"retribution and deterrence of capital crimes by prospective offenders." rd. 183. The Supreme

Court thus appears to have left open the argument in a given case that state interests are not

served by imposition of the death penalty, and, therefore, the Eighth Amendment bars execution.

The willingness of Joshua Komisarjevsky to conditionally plead guilty and accept a

sentence of life imprisonment without the possibility of release severely undercuts the any

penological interest that the state may claim in pursuing the death penalty. The only valid state

interests explicitly recognized by the United States Supreme Court are incapacitation, deterrence,

and retribution. None of these justifications adequately support the imposition of the death

penalty in this case, especially in, light of the high cost of infliction of capital punishment. The

United States Supreme Court has not enthusiastically endorsed incapacitation as a valid state

interest justifying imposition of the death penalty. Rather, the Court merely mentioned in a

footnote that "[a ]nother purpose that has been discussed is the incapacitation of dangerous

criminals and the consequent prevention of crimes they may otherwise commit in the future."

29

Gregg Vo Georgia, 428 U.S. at 183 n.28. The lack of analysis of this purpose, and the fact that its

mention was confined to a single footnote, undercuts its legitimacy as a justification.

Deterrence also fails as a sufficient justification for imposition of the death penalty in this

case. In Gregg, the majority pointed to the lack of consensus as to whether the death penalty

functions effectively: "the value of capital punishment as a deterrent of crime is a complex

factual issue the resolution of which properly rests with the legislature." rd. 186. More recently,

in Ring Vo Arizona, 536 U.S. 584,614 (2002), Justice Breyer, in a concurring opinion, stated his

belief that "retribution provides the main justification for capital punishment."

I note the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to incapacitate offenders, or to rehabilitate criminals. Studies of deterrence are, at most, inconclusive. As to incapacitation, few offenders sentenced to life without parole (as an alternative to death), commit further crimes. And rehabi1itation, obviously, is beside the point.

Id. 615 (citations omitted).

30

Thus, there seems to be a trend in the Supreme Court against relying on the rationale of

deterrence as a means of shielding capital punishment from Eighth Amendment proscription.

Further, the trend in the literature in the decades since Gregg has largely been to refute the few

studies that had supported the deterrence rationale in the 1970's. Studies find no deterrent effect

but rather an exacerbating, brutalizing effect of capital punishment. 8 Thus, even if the Court was

8 See,~, Jeffrey Fagan, Death and Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment, 4 Ohio S1. Jml of Crm Law 255 (2006) ("there is no reliable, scientifically sound evidence that shows that [executions] can exert a deterrent effect ... These flaws and omissions in a body of scientific evidence render it unreliable as a basis for law or policy that generate life-and-death decisions. To accept it uncritically invites errors that have the most severe human costs."); John J. Donahue and Justin Wolfers, The Death Penalty: No Evidence for Deterrence, The Economists' Voice, April 2006 (concluding that the estimates claiming that the death penalty saves numerous lives are simply not credible); John J. Donahue and Justin

Wolfers, The Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L.R. 794 (2005) ("aggregating over all of our estimates, it is entirely unclear even whether the preponderance of the evidence suggests that the death penalty causes more or less murder"); Robert Weisberg, The Death Penalty Meets Social Science, 1 Annual Review of Law and Social

justified in articulating and relying on the deterrence rationale in the face of the uncertainty at the

time of Gregg, it seems that deterrence has become substantially less compelling in the

intervening years, as lustice Breyer recognized in Ring.

Finally, the Supreme Court articulated the state's interest in retribution. But, Mr.

Komisarjevsky's willingness to spend the entirety of his life in prison leaves only the barest

marginal benefit in execution (i.e., the extent to which death serves the state's interest in

retribution better than life imprisonment). Although the defense believes this interest to be

barbaric, retribution has already been achieved with the death penalty being imposed on Steven

Hayes. It was Steven Hayes who strangled to death Mrs. Hawke Petit. It was Steven Hayes who

brought the gasoline to the house. It was Steven Hayes who poured the gasoline throughout the

house. It was Steven Hayes who lit the match that ignited the gasoline. And, it was Steven

Hayes who lied to the police about what happened.

31

The state's interest in the death of Joshua Komisarjevsky seems particularly attenuated

because ofMr. Komisarjevsky's relative youth - he is now 30 years old - ensures that a life

sentence will be a severe punishment. Finally, as Justice Brennan put it in Furman: "When the

overwhelming number of criminals who commit capital crimes go to prison, it cannot be

concluded that death serves the purpose of retribution more effectively than imprisonment. The

Science 151 (2005) (noting that many new studies claiming to find that the death penalty deters murder have been legitimately criticized for omitting key variables and for not addressing the potential distorting effect of one high-executing state, Texas); John Sorenson, Robert Wrinkle, Victoria Brewer, & James Marquart, Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas, 45 Crime and Delinquency 481-93 (1999) (number of executions unrelated to murder rates in general, and to felony rates); William Bailey, Deterrence. Brutalization, and the Death Penalty: Another Examination of Oklahoma's Return to Capital Punishment, 36 Criminology 711-33 (1998) (no evidence for a deterrent effect of executions, but finding a significant increase in stranger killings and non-felony stranger killings after Oklahoma resumed executions after a 25-year moratorium); Keith Harries & Derral Cheatwood, THE GEOGRAPHY OF EXECUTION: THE CAPITAL PUNISHMENT QUAGMIRE IN

AMERICA (1997) (finding no support for a deterrent effect of capital punishment at the county level but finding higher violent crime rates in death penalty counties).

asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the

execution of a random few." Furman v. Georgia, 408 U.S. at 304-05.

The above factors, alone and in combination, are extremely weak factors upon which to

justify seeking the death penalty over life imprisonment for Joshua Komisarjevsky.

Furthermore, they become considerably less compelling in light of the extremely high costs to

the state of seeking the death penalty rather than accepting Mr. Komisarjevsky's guilty plea and

sentence to life imprisonment without the possibility of release.

IV. THE COST TO THE STATE OF CONNECTICUT AND ITS TAXPAYERS OF TRYING AND EXECUTING A CAPITAL DEFENDANT FAR EXCEEDS THE COST OF ACCEPTING A GUILTY PLEA FROM THAT DEFENDANT AND INCARCERATING HIM FOR THE REST OF HIS NATURAL LIFE.

One of the most widespread and persistent misconceptions regarding the imposition of

32

the death penalty is its cost relative to the available alternatives. Many people, on both sides of

the capital punishment debate, assume wrongly that because the death penalty presumably ends

the convicted person's life more quickly it must be less expensive than a lifetime of

incarceration." In fact, the nation's experience since Funnan has proven otherwise. The

heightened procedural protections that apply to a capital trial and the subsequent appeals process

require the expenditure of significantly greater judicial, prosecutorial and defense resources than

does a non-capital murder trial (and certainly more than the acceptance of a guilty plea), The

increased legal process and heightened scrutiny required by the courts to ensure reliability of

death sentences also extends the duration of the proceedings. All in all, the process of putting a

person to death is slow, contentious, and costly.

9 See Wayne A. Logan, Casting New Light on an Old Subject: Death Penalty Abolitionism for a New Millennium, 1 00 Mich. L. Rev. 1336, 1338 n.19 (2002) (citing U.S. Department of Justice survey results that 20% of people support the death penalty in part because they believe it saves the taxpayer money).

Even Connecticut's relatively limited employment of the death penalty has cost taxpayers

far more than would reliance on prison sentences alone. It is true, as the report of the

Connecticut Death Penalty Commission states, that "[based on Connecticut's limited experience

with capital felony cases, it is very difficult to compare [the Department of Correction'S] actual

cost of implementing the death, penalty to the cost of life imprisonment without the possibility of

release."IO The available information, however, strongly suggests that the implementation of the

death penalty in Connecticut is a fiscally irresponsible proposition, particularly during the

current period of severe economic crisis in our state and throughout the United States.

In Connecticut, there are five major categories of "public" expenses incurred in

prosecuting and executing a capital defendant: the cost to local police departments and/or the

Department of Public Safety to investigate the case and to provide forensic laboratory services;

.

the cost to the Division of Criminal Justice to prosecute the crime from arrest and trial through

33

appeals and all post-conviction proceedings; the cost to the Division of Public Defender Services

CDPDS) of defending the accused throughout the trial, appeal and post-conviction proceedings; II

the cost to the Judicial Department of staffing courts during all court proceedings and, in this

case, transporting the defendant to and from court proceedings; and the cost to the Department of

Correction of incarcerating and transporting the defendant to post-conviction court proceedings

through execution. 12 The average annual cost per inmate in a Connecticut state prison is $44,165

while the average annual cost per inmate in the Northern Correctional Institution, where death

10 State of Connecticut Commission on the Death Penalty, Study Pursuant to Public Act No. 01- 151 of the Imposition of the Death Penalty in Connecticut, Submitted to the General Assembly January 8, 2003 at 12.

II Mr. Komisarjevsky, like virtually all capital defendants in the state, is indigent and is represented by counsel appointed through the DPDS.

12 Other expenses, such as the cost of conducting the execution itself, may well be significant.

row is located, is $100,385. [3 In stark contrast, there is only one significant "public" cost

category involved in the acceptance of a guilty plea in exchange for a sentence of life

imprisonment without release: the cost to the prison system of incarcerating the defendant for the

remainder of his life in a facility with an annual per inmate cost close in amount to the average

cost. 14

On information and belief, reliable expense information is currently available for only

two of the six categories listed above.15 Even these uncertainties, however, are not enough to

undermine the conclusion that the existing evidence compels. One such piece of evidence is the

enormous expenditure of resources by the DPDS in capital cases. The DPDS has estimated that

the major portion of its cost in defending capital cases in 2007-2008 was $2,383,334, or 5% of

the agency's entire budget. 16 At the same time the total number of capital cases (37) being

handled at the trial level or on appeal represented .066% ofthe DPDS's total caseIoad. 17

34

Accordingly, the expenses incurred by the DPDS in a capital case are roughly 75 times the cost

of an average criminal case.

13 Cost of Incarceration and Cost of a Career Criminal, Office of Legislative Research Report No. 2008- R-0099, February 13,2008.

14 Certainly there will be expenses incurred by the prosecutor, defense counsel, and Court prior to the plea. These costs, however, are de minimis compared to the incarceration expenses.

15 The Division of Public Defender Services and the Department of Correction have produced information useful in estimating the expenses they incur in the average capital case; on information and belief, the State's Attorney Office and the Judicial Branch yet to do the same. See Report of Connecticut Death Penalty Commission 9-11 (January 2003); The Annual Report 2008 of the Chief Public Defender, p. 27-28, (January 1,2009).

16 Id. Included in these totals are capital cases, like this one, requiring the services of special public defenders due to conflicts of interest. In accordance with Public Defender Commission policy and accepted professional standards, at least two attorneys must be assigned to represent each capital defendant.

17 Id.

Respectfully submitted,

JOSHUA KOMISARJEVSKY, Defendant

BY ~

JEREMIA DONOVAN, IN 305346

123 Elm Street--Unit 400

P.O. Box 554

Old Saybrook, CT 06475-4108 (860) 388-3750; Fax: (860) 388-3181 donolaw@sbcglobal.net

TO~~420221

103 Whitney A venue, Suite 4 New Haven, CT 06510-1229

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

Attorneys for Joshua Komisarjevsky

35

CERTIFICA TE OF SERVICE

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

10-14, a copy of the foregoing motion and memorandum were served via hand this 11th day of

March 2011 on the following:

Michael Dearington, State's Attorney

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

235 Church Street

New Haven, CT 06510

Todd Bussert

Commissioner of the Superior Court

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