Escolar Documentos
Profissional Documentos
Cultura Documentos
v. : AT NEW HAVEN
moves the Court to reconsider its Order, and supporting Memorandum of Decision, dated April
1, 2011, granting the Hartford Courant Company’s motion to the Court’s March 16 Order sealing
the list of names Mr. Komisarjevsky provided pursuant to court order, on March 15, 2011. As
set forth more fully herein, the Court, in once again acquiescing to the demands of the media
without sufficient regard to Mr. Komisarjevsky’s right to a fair trial, has placed Mr.
Komisarjevsky in an impossible situation that serves to interfere with his ability to prepare for
trial, namely any potential penalty phase that may occur. In particular, not only does the Court
assert incorrectly that Mr. Komisarjevsky has raised only “generalized concerns” and employ an
unsustainable standard, but it also suggests that Mr. Komisarjevsky should have submitted
additional materials under seal when what is at issue is a list Mr. Komisarjevsky submitted
accounting for representations from the Court that, just as in the Hayes case, it would not be
released. For the reasons below, the Court must maintain Mr. Komisarjevsky’s list under seal or,
at a minimum, permit him to file a revised list for purposes of public consumption. In support of
many witnesses they anticipated calling during their respective cases-in-chief and during the
penalty phase, should the occasion arise. Mr. Komisarjevsky advised that he expected to call
between five and eight witnesses during his case-in-chief but was uncertain about the number
who might be called during the penalty phase given the extreme difficulty the defense has
Komisarjevsky, are reluctant to testify because of the deleterious effects they perceive will result
if their association with and support of Mr. Komisarjevsky and with this case is revealed
publicly. Recognizing the defense’s position, the Court required Mr. Komisarjevsky to provide a
list of names of potential witnesses who may testify on behalf of Mr. Komisarjevsky and of
names that may come up during trial. The Court ordered the parties to submit their respective
lists no later than March 15, 2011. The express purpose of the lists is for submission to venire
panels to ascertain whether prospective jurors know any of potential witnesses or individuals
associated with the parties in order that the parties can make a determination regarding
opposition memorandum, prior to submitting our list electronically, on March 15, Court Clerk
Edjah Jean-Louis advised us that the lists submitted in State v. Hayes, Docket No. CR07-
241859, were not released to the media or to the public at-large. Although Ms. Griffin contests
this fact, see Alaine Griffin, No One Picked In 1st Day Of Jury Selection in Cheshire Trial,
Hartford Courant (March 17, 2011) (“The witness list in Hayes’ trial was released at the start of
jury selection.”), New Haven Public Defender Thomas Ullmann, counsel for Hayes, confirms
Ms. Jean-Louis’s position. Ex. A. Regardless, as Attorney Donovan has attested, Mr.
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Komisarjevsky would not have submitted such a comprehensive list had he known that the Court
intended to release it to the public. Said another way, Mr. Komisarjevsky relied upon and was
effectively induced by the Court’s past practices when providing, in good faith, an accounting of
all potential witnesses and names that may arise during the course of the case, knowing and
believing from several years experience that the vast majority of those listed oppose public
disclosure.
3. The Courant and Ms. Griffin filed their motion on March 22, 2011. As Mr.
Komisarjevsky advised the Court, he did not see the motion until the morning of March 23,
around the same time he entered court to find an Order directing that any objections be filed by
close of business on March 28. Only after some discussion, did the Court amend its Order to
4. The original and the amended Order direct that “[a]ny party objecting to the Motion
shall … file under seal a list of specific names on that party’s witness list as to which further
sealing is claimed to be warranted under P.B. § 42-49A, together with appropriate affidavits.”
As reflected in Mr. Komisarjevsky’s opposition pleadings, he seeks to have the entire list filed
on March 15 maintained under seal, though, on further review, there are 25 names that could be
unsealed in that they appear on the State’s list (e.g., police officers, medical examiners), they
were disclosed during the Hayes trial (e.g., witnesses), and/or they are individuals whose names
may come up but who Mr. Komisarjevsky is highly unlikely to call as witnesses (e.g., members
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Hayes, Matthew Spadola, Carl
Hayes, Steven Theep, Phillip
Keenan, Maury Valerio, Kristin
Kenyon, Holly Viscomi, John
Komisarjevsky, Ben Vitello, Joseph
Komisarjevsky, Jude Williams, Susan
Laria, Michael
Moreover, Mr. Komisarjevsky did submit an appropriate affidavit from his lead counsel setting
forth Mr. Komisarjevsky’s particularized concerns, including threats made against his family and
a witness in the Hayes trial as well as a representative sample of the fears and concerns that have
consistently been conveyed to the defense the last several years — fears and concerns that have
tremendously impeded Mr. Komisarjevsky’s efforts to prepare for a possible penalty phase.
Although unmentioned in its Memorandum of Decision, the Court acknowledged the validity of
Mr. Komisarjevsky’s concerns on March 16: “I think that Mr. Bansley’s point is at least initially
persuasive that there’s some reason to believe that witnesses might -- potential witnesses might
receive unwelcome attention that might discourage their willingness to testify in court. So, I
think there’s reason to seal the list without prejudice and that will be done.”
5. Attached hereto is a supplemental affidavit from Attorney Donovan (Ex. B), which
details contact we have had with individuals on Mr. Komisarjevsky’s list since the Court issued
its Memorandum of Decision. Respectfully, this feedback substantiates the concerns raised in
our opposition memorandum while further confirming the nature of the threats, harassment and
intimidation that people have experienced, felt and fear, including harassment by the media
following Mr. Komisarjevsky’s arrest. Additionally, Mr. Komisarjevsky notes that among the
28 comments posted on the Courant’s Web site in response to Ms. Griffin’s story concerning the
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If anyone should be threatened it should be the Attorneys. They are all scum.
***
LMHtfd at 8:15 PM April 1, 2011
It may not have an effect on the trial, but certainly may lead to some witnesses receiving
death threats, being harassed or having people start Facebook pages to boycott their
businesses. All happened with one of Hayes' defense witnesses, a former employer. The
Courant later interviewed her and she said she didn't want to testify but was forced to due
to subpoena. Anyone will be reluctant to testify if they have to worry about some yahoo
making good on an anonymous threat.
***
moonshadow at 8:37 PM April 1, 2011
I agree with both of you - that releasing the list may cause some witnesses to be
completely intimidated, and even if subpoened, may not give clear testimony, but
Komisarjevsky will get the death penalty anyway.
And I wonder why the little daughter was taken from the parents? I hope there was a
good reason.
See http://discussions.courant.com/20/hartnews/hc-cheshire-witness-list-0402-20110401/10 and
http://discussions.courant.com/20/hartnews/hc-cheshire-witness-list-0402-20110401/10?page=2.
Attorney Donovan has intentionally avoided identifying them by name or anything beyond the
vaguest of identifiers (i.e., not gender, age, residence, etc.). Mr. Komisarjevsky does not intend
in public filings to identify these individuals by name since, in light of the predicament in which
he now finds himself, he lacks confidence that the Court will hold or maintain the privacy of
pleadings it orders, if those pleadings are filed under seal. Mr. Komisarjevsky relied on
representations about what occurred in the Hayes case only to have the Court deviate here, to
Mr. Komisarjevsky’s considerable detriment. Furthermore, to the extent that the Court’s March
23 Order is read as requiring an affidavit from each individual named on the list, as opposed to
considering the list as a whole, such a demand is inconsistent with the law, unworkable under the
time constraints established by the Court and likely impossible given the recent resistance the
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defense has encountered when trying to communicate with individuals on the list, especially
now. Mr. Komisarjevsky could not have realistically been expected to obtain some 100
affidavits from already reluctant parties in one week’s time. If the Court, in fact, requires such
affidavits, Mr. Komisarjevsky requests the list be held an additional six weeks to permit him an
7. The Court appears to find that Mr. Komisarjevsky’s list is a “judicial document.”
Mem. 2-3. Specifically, the Court asserts that the list was “‘filed with the court’ within the
meaning of P.B. § 42-49A” and that lists like that which Mr. Komisarjevsky submitted “are
ordinarily intended to be public.” Id. (italics in original; bold added). To clarify for the record,
Mr. Komisarjevsky did not “file” the list with the Court (i.e., he did not file it in the Clerk’s
Office to be date stamped and entered into the trial court file); he e-mailed the list to the Ms.
Jean-Louis, and copied in the state — but only having been informed that the list in Hayes was
not disclosed to the public. The Court’s failure to acknowledge this representation, on which
Mr. Komisarjevsky has informed the Court he relied, as well as its initially stated justification
for sealing is troubling. The Memorandum of Decision can be fairly read as an effort by the
Court to shift all responsibility onto Mr. Komisarjevsky while absolving itself of having
Donovan’s affidavit in support of the Motion to Disqualify, there is concern about how the Court
8. These considerations notwithstanding, the list is not a judicial document, that is, it is
not a “document filed that a court reasonably may rely on in support of its adjudicatory function”
Diocesan Corp., 292 Conn. 1, 39, 46 (2009) (emphasis in original), cert. denied sub nom,
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Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., -- U.S. --, 130 S.Ct. 500
(2009). Importantly, the Connecticut Supreme Court’s definition of what constitutes a “judicial
document” differs substantively from the Practice Book’s concerns about the public right of
access to documents “filed with the court.” Rosado, 292 Conn. 46 (“If this court were to
interpret the word ‘filed’ literally, Connecticut would apply a broader approach to the
presumption of public access than any jurisdiction to have considered this issue.”). There is no
valid claim, nor did the Courant or Ms. Griffin assert, that the list is necessary for the Court to
adjudicate any issue. See, e.g., Sienkiewicz v. Ragaglia, 2011 WL 1169089 (Conn.Super. March
2, 2011). Consequently, the presumptive right of access is far weaker than it might be in the
ordinary course. See United States v. Graham, 257 F.3d 143, 149-50 (2d Cir. 2001) (weight is
greater where documents are “introduced at trial” or otherwise “material to the court’s
disposition of the case on the merits” and weaker where the “do not serve as the basis for a
substantive determination”, with presumption concerning documents that play a “negligible role”
in the court’s exercise of its power being “appreciably weaker”) (citing, inter alia, United States
v. Amodeo, 71 F.3d 1044, 1049-50 (2d Cir. 1995)). The Memorandum of Decision is devoid of
such analysis.
9. In terms of judicial documents that bear on the adjudicatory function, it is notable that
during the Hayes trial the Court sua sponte entered a limited sealing order with respect to crime
scene and other photographs depicting the victims, permitting reporters to view the photographs
in the Clerk’s Office but denying reproduction or public dissemination. Respectfully, this is an
example of the Court giving greater weight and consideration to the interests of the victims, or,
more specifically, the victims’ family inasmuch as the victims are deceased, than to a
defendant’s right to a fair trial. As set forth in Mr. Komisarjevsky’s Motion to Disqualify, he
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maintains serious reservations about the Court’s approach to this case relative to elevating his
constitutional right to a fair trial over the victims’ family’s claimed rights or the media’s alleged
rights and interests. Indeed, the Memorandum of Decision makes no reference to the Court’s
obligation to ensure that Mr. Komisarjevsky receive a fair trial, specifically to minimize the
impact of publicity. See Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 13
(1986); Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“[B]ecause of the Constitution’s
pervasive concern for these due process rights, a trial judge may surely take protective measures
10. The granting of the Courant’s motion is yet another example of the Court ingratiating
(a) As set forth in Mr. Komisarjevsky’s Motion to Disqualify and established at the hearing
related thereto, during the course of the Hayes trial, the Court observed being “under the
public eye” and characterized this case as a “fish bowl” experience — the clear import
being that all concerned operate under the media’s watchful gaze. The Court also handed
out homemade cookies to the media in the hallway outside Courtroom 6A, on the
(b) Over Mr. Komisarjevsky’s objection, the Court is permitting this case to be broadcast via
(and the use of electronic devices generally) the Court asserted that “[n]o evidence was
presented at the hearing” but ignored (i.e., did not take up or address) the authority set
by members of the media, is a form of broadcast journalism, albeit relatively new. See,
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e.g., Megan Garber, Twitter as broadcast: What #newtwitter might mean for networked
journalism (Sept. 15, 2010). Again, as set forth in Paragraph 10 of Attorney Donovan’s
affidavit in support of the Motion to Disqualify, there is concern about how the Court
(c) Also over Mr. Komisarjevsky’s objection, the Court is reserving two rows of seats for the
media directly behind the defense. Notable in this regard is that during the hearing on the
issue, the Court took the extraordinary step of sua sponte inquiring of reporters then
present about where they wished to sit. It was not until Mr. Komisarjevsky objected that
The Court’s actions and its pattern of rulings on media-related issues expose a bias where
accommodation of media requests trumps Mr. Komisarjevsky’s right to a fair trial. Indeed, in
this instance the Court makes no reference to the fact of Mr. Komisarjevsky being advised that
the list in Hayes was not released or that Mr. Komisarjevsky relied on this information, nor did
the Court afford a hearing or opportunity to revise the list before granting the Courant and Ms.
Griffin’s motion.
11. Granting Mr. Komisarjevsky leave to seek a stay from a reviewing court is, as the
Court well knows, a hollow and relatively meaningless gesture. Barring this Court’s
reconsideration of its erroneous decision, no realistic opportunity exists for Mr. Komisarjevsky
to obtain review of, let alone a stay of, an inherently discretionary determination. Although the
Court’s decision is of great importance to Mr. Komisarjevsky, counsel cannot say in good faith
and candor that this issue is a matter of substantial public interest, a condition precedent to
seeking review pursuant to General Statutes § 52-265a and Practice Book § 83-1.
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12. In the course of preparing for Mr. Komisarjevsky’s defense, namely a penalty phase
presentation, the defense has interviewed approximately one hundred potential witnesses and has
been refused interviews by another approximate one hundred potential witnesses. As this
statistic suggests, an obstacle that the defense has consistently encountered throughout its
investigation is the reluctance of potential witnesses to even meet with defense investigators, let
alone agree to provide information or to testify on behalf of Mr. Komisarjevsky. The unrelenting
and inarguably unprecedented media attention associated with this case has been a significant
impediment in this regard. Nearly every witness interviewed has voiced concern about
becoming involved due to the extensive media coverage and/or the extremely deleterious
connotation that they perceive will be directed at them if their assistance to the defense is
disclosed. The defense has carefully advised prospective witnesses about the importance of their
assistance relative to possibly sparing Mr. Komisarjevsky the death penalty while also assuring
individuals that the defense will do everything permitted by law to protect their privacy, unless it
was necessary for them to testify, at which time their identity would necessarily be made known.
The release of Mr. Komisarjevsky’s list will greatly erode whatever rapport and credibility the
defense has established with potential witnesses over the course of time. In sum, the Court’s
intention to release Mr. Komisarjevsky’s list will unquestionably exacerbate the defense’s ability
to prepare a penalty phase presentation and, correspondingly, will impede even more Mr.
13. As reflected through prior filings, hearings and argument, Mr. Komisarjevsky
submits that the intense media attention that this case has generated coupled with the denial of a
change of venue denies Mr. Komisarjevsky the right to a fair trial, as guaranteed by both the
United States Constitution and the Connecticut Constitution. Mr. Komisarjevsky’s right to a fair
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trial, particularly under circumstances where he may well lose his life, should be zealously
safeguarded, including by the Court. Although Mr. Komisarjevsky’s recognizes the rights of the
press, his right to a fair trial far outweighs any claimed right of access to a document that Mr.
Komisarjevsky believed would not be subject to release when he submitted it. If the Court
intended to release the list of the public, it should have so advised, and definitely not have
advised to the contrary, in order that Mr. Komisarjevsky could have acted accordingly.
WHEREFORE, for all of the reasons set forth above, together with such other reasons as
may be advanced during any hearing conducted in connection herewith, Joshua Komisarjevsky
respectfully prays the Court reconsider its Memorandum of Decision and reverse its Order
Respectfully submitted,
JOSHUA KOMISARJEVSKY, Defendant
BY:
JEREMIAH DONOVAN, JN 305346 WALTER C. BANSLEY, III, JN 407581
123 Elm Street--Unit 400 Bansley Law Offices, LLC
P.O. Box 554 20 Academy Street
Old Saybrook, CT 06475-4108 New Haven, CT 06510
(860) 388-3750; Fax: (860) 388-3181 (203) 776-1900; Fax: (203) 773-1904
donolaw@sbcglobal.net Bansley3@BansleyLaw.com
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STATE OF CONNECTICUT
v. : AT NEW HAVEN
JOSHUA KOMISARJEVSKY. :
THOMAS ULLMANN, hereby deposes and says that the following is true:
1. I am a member in good standing of the Bar and the Public Defender for the Judicial
2. Along with Attorney Patrick Culligan, Chief of the Office of the Public Defender’s
Capital Unit, I was counsel for Steven Hayes in State v. Hayes, Docket No. CR07-241859.
3. I have been asked by counsel for Joshua Komisarjevsky whether the written witness
list we provided the Court in connection with jury selection in Mr. Hayes’s case last year was
disclosed publicly. To the best of my knowledge and recollection, the written list we provided
I declare under penalty of perjury that the foregoing is true and correct to the best of my
v. : AT NEW HAVEN
JOSHUA KOMISARJEVSKY. :
JEREMIAH DONOVAN, hereby deposes and says that the following is true:
1. I am a member in good standing of the Bars of Connecticut and New York. I am also
a member in good standing of the United States Court of Appeals for the Second Circuit, and of
and have served in that capacity since on or about July 31, 2007.
Reconsideration of the Court’s Order granting the Motion to Vacate the sealing order related to
Mr. Komisarjevsky’s list of names of potential witnesses and individuals who may be mentioned
5. Since the filing of the Court’s Memorandum of Decision mid-day on April 1, we have
had contact with a number of the individuals named on Mr. Komisarjevsky’s list concerning the
daughter, whose name is on the list, was previously the subject of death threats,
which led to her removal from Mr. Komisarjevsky’s parents’ custody, police drive-
bys for at least six months and an adult escort at school, and that there is concern if
the minor daughter’s name is released to the public, particularly given the current lack
extended family member who works at the same location as one of Dr. Petit’s
extended family members reports that following Mr. Komisarjevsky’s arrest members
of the media sat across the street from his/her house (“hounded”) causing him/her
distress;
(c) The previously referenced childhood friend, who resides in Cheshire and was (is)
house unannounced, and s/he is concerned about the safety of his/her family (“will be
(d) An extended family member, who has previously spoken with the defense, is
extremely upset and now states a refusal to testify, noting how the media “hounded”
Mr. Komisarjevsky’s elderly grandmother, who lived in another state and had just lost
her husband, shortly after his arrest, causing the grandmother to become “upset and
(e) An older extended family member, who has previously spoken with the defense, is
fearful about her name being linked to Mr. Komisarjevsky, particularly as a relative;
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(f) A longtime family friend, who owns a small business and is dealing with a serious
personal family issue, is upset and concerned about the prospect of a loss in business;
(g) A childhood friend with a relatively unique last name, whose spouse helps care for
one of Dr. Petit’s immediate family members, is upset and concerned about
(h) Former family friends (parents and childen), including a former girlfriend of Mr.
defense due to the emotional stress that this case causes, report that one of the parents
sought therapy to help cope with said stress and remains emotionally fragile;
(i) A former friend is very upset and reports that any harassment would cause him to be
(j) A former prisoner with whom Mr. Komisarjevsky served time is angry and, despite
(k) A former pastor reports that he does not want his church exposed in any way.
6. What we have found is that equal to the fear of the potential consequences that may
befall them is individuals’ concern about emotional trauma, which many report experiencing
every time they are exposed to media coverage about this case. Furthermore, many individuals
are experiencing serious personal issues, such as financial crisis, illness and death of loved ones,
that, standing alone, leaves them vulnerable emotionally and impedes our ability to communicate
with them
7. Our mitigation specialist, who has been involved with more than 20 capital cases,
reports that what she has encountered in this case is unique to her experience, that is, she has
never encountered such a pervasive sense of fear and reprisal by so many individuals with
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connections to a defendant. She is finding that the threat of exposure is increasing individuals
reluctance to communicate with our defense team, and that individuals with whom we spoke
previously are now backing off their statements while others are citing never before noted
I declare under penalty of perjury that the foregoing is true and correct to the best of my
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CERTIFICATE OF SERVICE
I hereby certify that, in accordance with Connecticut Practice Book §§ 10-12, 10-13 and
10-14, a copy of the foregoing was served via electronic mail and first class mail, postage
_______________________________________
Todd Bussert
Commissioner of the Superior Court