02/04/2011 16:53 FAX 203 503 6884 SUPERIOR COURT Boor STATE OF CONNECTICUT DOCKET NO. CRO7-241860 : SUPERIOR COURT STATE OF CONNECTICUT, : JUDICIAL DISTRICTRgigas Bagyighal ewaayen aN FILED vy. Z AT NEW HAV} FEB 04 2011 JOSHUA KOMISARJEVSKY. : FEBRUARY 4, 2011 CHIEF CLERK'S OFFICE DEFENDANT JOSHUA KOMISARJEVSKY’S MOTION TO ALTERNATE SEATING POINTS AND AUTHORITIES IN SUPPORT THEREOF COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel and pursuant to Practice Book § 44-7, to the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, and to Article I § 8 of the Connecticut Constitution, and respectfully moves that the Court altemate the parties seating during jury selection and trial, including any penalty phase that may result, so as to bring fairness and equity to the proceedings. Jn support of this request, Mr. Komisarjevsky states as follows: 1, The United States Supreme Court has emphasized the need to scrutinize courtroom ‘Practices: Jn the administration of criminal justice, courts must carefully guard against the dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience. Estelle v, Williams, 425 U.S. 501, 503-04 (1976). 2, In criminal courtrooms across Connecticut, itis well established that the state always sits at the table closest to the jury and thus directly across from the witness stand, that is, between the parties the state always sits in closest possible proximity to jurors and witnesses. There is no02/04/2011 16:53 FAX 203 503 6ssd SUPERIOR COURT Booz law, rule or written policy mandating such. Cf, P.B. § 44-7 (“Whenever present, the defendant shall be seated where he or she can effectively consult with counsel and can see and hear the proceedings.”). The practice is merely one of unwritten, implicit understanding. The practice, which works to the state’s obvious advantage (or else, why does the state never deviate from it) and, thus, to a defendant’s disadvantage, violates a defendant’s Fifth (due process) and Sixth (fair trial) Amendment rights. 3. Major theorists of psychology over the past century have argued that physical distance cues have adaptive significance. See Lawrence E. Williams and John A. Bargh, Keeping One’s ‘Distance: The Influence of Spatial Distance Cues on Affect and Evaluation, 19 Psychol. Sci. 302, 303 (2008). The basic concept of spatial distance has profound effects on the cognitive processes involved in appraisal and affect.... These effects reveal the fundamental importance of distance cues ... in shaping people’s judgments and affective experiences, and highlight the ease with which aspects of the physical environment (and the spatial relations therein) can activate feelings of closeness or distance without one's awareness. Id. 307. From a basic sociological perspective, people understand that physical proximity is a reflection of our basic instincts of others. Said another way, we tend to physically distance ourselves from those for whom we do not harbor positive feelings. Isolating a defendant from the jury box sends the message that he is distanced for a reason, when, in fact, the only reason is unwritten and unexplored tradition, Compelling a defendant to sit farthest from the jury sends the message that he is a threat to either a juror’s person or peace of mind. This practice is dangerous to a defendant’s rights because it shadows a predetermined uncomfortable verdict or, at the very least, a level of anxiety in the nature of being a juror. This feeling of discomfort can be unconscious, as people unconsciously use information about space proximity within their environment to construct psychological frameworks of reference, as a natural part of the02/04/2011 16:53 FAX 203 503 6884 SUPERIOR COURT 003 situational appraisal process. See id. 302, 307; R.S. Lazarus, Cognition and Motivation in Emotion, 46 Am. Psychologist 352 (1991); Y. Trope, Identification and Inferential Processes in Dispositional Attribution, 93 Psychol. Rev. 239 (1986). The message of “keep a distance” from the defendant sent to jurors as a result of the standard seating arrangement may exacerbate their insecurities and influence the potential of a first impression into becoming more, particularly since the table positioning never changes. See Marsha Kaitz et al., Adult Attachment Style and Interpersonal Distance, 6 Attachment & Hum. Dev, 285, 300 (2004). The Court makes | comment on the weight of evidence, albeit implicit, by signaling that the defendant, due to strategic farthest placement from the jury, is either undesirable or a danger. 4, Not only are proximity and interpersonal distance social dynamics integral in human relationships, but once a level of social intimacy is established, it takes on a life of its own in the maintenance of those relationships. According to the principle of propinquity, other things being equal, people are most likely to be attracted to those in closest contact with them, See Richard W. Brislin, Contact as a Variable in Intergroup Interaction, 76 J. Soc. Psychol. 149 (1968). The closer an individual is to another person, the more positive the individual's attitude towards that person. See Aaron Wolfgang and Joan Wolfgang, Exploration of Attitudes via Physica Interpersonal Distance Toward the Obese, Drug Users, Homosexuals, Police and Other Marginal Figures, 27 J. Clinical Psychol. $10 (1971). A 1981 study of Harvard students proved that people who are in closer proximity to others are rated as more sincere, natural, likeable, and loving than others; these folks are also perceived to be less dominant by peers, Dan P. | McAdams and Joseph Powers, Themes of Intimacy in Behavior and Thought, 40 J. Personality & Soc, Psychol. 573, 584 (1981). A 1978 University of Miami study showed that relationships | ‘were seen as significantly less positive with increased distance. A, Rodney Wellens and Myron02/04/2011 16:53 FAX 203 503 6884 SUPERIOR COURT Boos L. Goldberg, The Effects of Interpersonal Dis entation Upon the P Relationships, 99 J. Psychol. 39 (1978). 5. The traditional seating srrangement in Courtroom 6A places the state within most people’s “comfort zone.” See, e.g., Gerald L, Stone & Cathy J. Morden, Effect of Distance on Verbal Productivity, 23 J. Counseling Psychol. 486, 488 (1976) (people talk longer about personal topics at an intermediate distance of five feet, versus two or nine feet). Also of concern to Mr. Komisatjevsky is that the arrangement places the victims" family and supporters in closer proximity to the jury, as that block of individuals historically sits immediately behind the state. “More immediate postures and positions of a communicator are associated with his greater liking -~» and leads the addressee to infer that the communicator likes him more.” Mark Sherer & Ronald W. Rogers, Effects of Therapist’s Nonverbal Communication on Rated Skill and Effectiveness, 36 J. Clinical Psychol. 696, 696-697 (1980)(quoting Albert Mehrabian, Nonverbal ‘Communication (1972)). Media reports surrounding the trial of Mr. Komisarjevsky’s co- defendant Steven Hayes establish that numerous jurors expressed the existence of an unspoken bond with the victims’ family. 6. Mr. Komisarjevsky seeks to sit not only closest to the jury box but also directly actoss from the witness stand so as to permit an unimpeded, unobstructed and uncluttered “face-to- face” confrontation with the witnesses against him. See Maryland v, Craig, 497 U.S. 836, 849 (1990) (“[O]ur precedents establish that ‘the Confrontation Clause reflects a preference for face- to-face confrontation at trial...'; quoting Ohio v. Roberts, 448 U.S. 56 (1980)).. 7. The Bill of Rights affords every advantage in a criminal trial to defendants out of recognition thet that liberty is valued most of all. In this, the stakes are both life and liberty. Placing a defendant in a capital case in the worst possible physical position in the courtroom. ,02/04/2011 16:53 FAX 203 503 6884 SUPERIOR COURT oos violates constitutional principles, particularly where the practice places jurors in a disadvantageous position to fulfill their duties in administering justice. WHEREFORE, for all of the reasons set forth above, together with such other reasons as may be advanced in any memorandum of law submitted and/or hearing conducted in connection herewith, Joshua Komisarjevsky respectfully prays the Coust grant the relief requested. Respectfully submitted, JOSHUA KOMISARJEYSKY, Defendant BY: IONOVAN, JN 305346 123 Elth Btreet--Unit 400 P.O. Box|554 20 Academy Strect | Old SayBrook, CT 06475-4108 New Haven, CT 06510 (860) 388-3750; Pax: (860) 388-3181 (203) 776-1900; Fax: (203) 773-1904 donolaw@sbeglobal.net Bansley3@BansleyLaw.com | Qn the Motion | TODD A. BUSSERT, JN 420221 Daria Berkowska, Certified Legal Inter 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495-9795 | thussert@bussertlaw.com | Altomeys for Joshua Komisarjevsky ORDER ‘The foregoing Motion having been considered, itis hereby Ordered: GRANTED / DENIED THE COURT02/04/2011 16:53 FAK 203 503 6884 SUPERIOR COURT Goose CERTIFICATE O) VICI Thereby certify that, in accordance with Connecticut Practice Book §§ 10-12, 10-13 and 10-14, a copy of the foregoing was served via hand this 4th day of February 2011 on the following: Michael Dearington, State's Attomey 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