02/04/2011 16:54 FAX 203 503 6884 SUPERIOR COURT oor STATE OF CONNECTICUT DOCKET NO. CRO7-241860 1 SUPERIOR COURT STATE OF CONNECTICUT, : JUDICIAL DISTRICT FOR NEW HAVEN v : | ATNEW HAVEN vegans scuer” JOSHUA KOMISARJEVSKY. : FEBRUARY 4, 2011 FEB 04 2011 CHIEF CLERK'S OFFICE DEFENDANT JOSHUA KOMISARJEVSKY’S MOTION TO DISMISS COUNTS ONE THROUGH SIX (THE CAPITAL MURDER CHARGES) AND POINTS AND AUTHORITIES IN SUPPORT THEREOF COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel and pursuant to General Statutes § 54-56, to Practice Book § 41-8, to the Fifth and Fourteenth Amendments to the United States Constitution and to Articles §§ 8, 9 of the Connecticut Constitution, hereby moves for dismissal of the capital felony counts filed in the above-captioned ‘matter on or about July 26, 2007 ~ Count One (Murder, Multiple Victims, C.G.S. § 53a-54b(7)); Count Two (Murder of Person Under 16 Years of Age, C.G.S. § 53a-54b(8)); Counts Three, Four and Five (Murder: Victim of Kidnapping in violation of C.G.S. § $3a-54b(5)); and Count Six (Murder, Victim of Sexual Assault in the First Degree, C.G.S, § 53a-54b(6)); — inasmuch as co- defendant Steven Hayes has been convicted and sentenced to death relative to the murders of the victims associated with these capital felonies, thereby rendering further prosecution of Mr. Komiserjevsky in this regard a violation of due process. See State v. Haves, Docket No. CROT- 241860. In support of this motion, Mr. Komisarjevsky states as follows: 1. On October 5, 2010, a jury sitting in the Superior Court for the Judicial District of ‘New Haven convicted Steven Hayes of Murder, Multiple Vietims, C.G.S. § 53a-546(7); Murder of Person Under 16 Years of Age, C.G.S. § 53a-54b(8); Murder: Victim of Kidnapping, C.G.S.02/04/2011 16:55 FAX 203 503 6884 SUPERIOR COURT fooz § 532-4b(5); and Murder, Victim of Sexual Assault in the First Degree, C.G.S, § 53a-S4b(6). As the parties to the instant case are well aware, the evidence adduced during the Haves trial and the verdicts arising therefrom reflect a reality known since almost immediately after the defendants’ arrests; while Joshua Komisarjevsky shares a significant degree of responsibility for the tragedy that occurred on July 23, 2007, Steven Hayes is the more culpable co-defendant and the person principally responsible for vietims’ pointless deaths. @) Steven Hayes confessed (to a defense expert) to the rape and murder of Jennifer Hawke Petit and, indeed, Hayes never contested killing Mrs. Hawke Petit by his own hands; (b) Whereas it is uncontested that the Petit daughters died of smoke inhalation, as established in Hayes, the state presented evidence and argued that Hayes both poured the gasoline and ignited the fire: 1) The state presented evidence of two statements given by Steven Hayes (inadmissible in Mr. Komisarjevsky’s case pursuant to Bruton v. United States, 391 U.S, 123 (1968) and its progeny) wherein he admitted pouring the gasoline, as well as evidence by a putative expert that the gasoline pour was “continuous”; 2) The state introduced no evidence indicating or alleging that Mr. Komisarjevsky was involved with the pouring of the gasoline. On information and belief, Hayes never so alleged (because it is untrue); and 3) Although the state presented evidence that Hayes's supposedly alleged Mr. Komisarjevsky lit the fire (a putative overheard conversation, which is again inadmissible here under Bruton) ~ something Mr. Komisarjevsky categorically denies and the evidence belies ~ the State argued to the jury at the close of its02/04/2011 16:55 FAX 203 503 684 SUPERIOR COURT ‘oos case-in-chief that Hayes, in fact, lit the fire. Specifically, the state asserted unambiguously: “I mean common sense indicates that the last one out is the one who lights the fire. And Komisarjevsky came out first, and when he came around the comer, again, he was in the lead, Doesn’t it suggest to you that the last one out is the one to light the fire? Certainly, someone is not going to stand there while another person lights the fire.” 10/1/10 Tr. 36, As set forth herein the State cannot now be heard to offer an inconsistent theory of liability in Mr. Komisarjevsky’s case. On information and belief, the State possesses neither admissible or credible evidence indicating that Joshua Komisarjevsky poured any gasoline or, more significantly, ignited the fire that resulted in the Petit daughters’ senseless deaths, Quite the opposite, Mr. Komisarjevsky anticipates the state will seck to admit the confession he gave police upon arrest, wherein Mr, Komisarjevsky advised authorities concerning the circumstances surrounding Hayes’s unexpected pouring and ignition of the gasoline. Whatever his misplaced motivations and intentions, Joshua Komisarjevsky never intemtetanyont to die, or to be party to any deaths. 2, ‘The state, as a prosecuting authority, holds a special place in the administration of criminal justice. See, e.g., Conn. Rules of Prof. Conduct Rule 3.8—Special Responsibilities of a Prosecutor, Commentary (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”). As the United States Supreme Court long ago recognized: [The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done... It is as much his duty to refrain from improper methods calculated to produce a02/04/2011 16:55 FAX 203 503 6884 SUPERIOR COURT aoos conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212 (1960). Justice White offered his perspective in United States v. Wade: Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime, To this extent, our so-called adversary system is not adversary at all; nor should it be... [P]rosecutors represent the interests of society as a whole, including the interests of the | defendant as a member of that society, In practice, however, the prosecutor makes decisions on behalf of the government and, in effect, defines the public interest in specific cases. 338 U.S. 218, 256-67 (1967) (White, J., dissenting in part and concurring in part). 3. There is little question that the public interest surrounding the instant matter involves seeing Mr. Komisarjevsky convicted for his role in the charged offenses as well as to never again spend a day in free society. Mr. Komisarjevsky understands and concurs; he has offered to plead guilty in exchange for @ life sentence for the last three-plus years. Whereas the state has remained steadfast in its stated intention to seek the death penalty in Mr, Komisarjevsky’s case, the fact that it has already secured that result against Steven Hayes as to all three victims renders the continued pursuit of the above-referenced capital felony counts an effort in violation of due process. Through the death sentence obtained in Haves, the state has established that Steven Hayes murdered Jennifer Hawke Petit and her two young daughters, therein precluding the state from attempting to hold Mr. Komisarjevsky responsible for those murders. Specifically, the state cannot be permitted to take Joshua Komisarjevsky’s life for Steven Hayes’s crimes. 4, “[T]he Due Process Clause forbids a state from using inconsistent, irreconcilable | theories to secure convictions against two or more defendants in prosecutions for the same |02/04/2011 16:55 FAX 203 503 688d SUPERIOR COURT os offenses arising out of the same event... Even if our adversary system is in many ways, a gamble, that system is poorly served when a prosecutor, the state’s own instrument of justice, stacks the deck in his favor. The State's duty to its citizens does not allow it to pursue as many convictions [or execute as many people] as possible without regard to faimess and the search for truth.” Smith v. Groose, 205 F.3d 1045, 1049, 1052 (8th Cir, 2000); see Stumpf v. Mitchell, 367 F.3d 594, 611 (6th Cir.2004) (“we now join our sister circuits in finding that the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation”), vacated on other grounds, Bradshaw v. Stumpf, 545 U.S. 175, 186-88 (2005); ‘Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997) (en banc) (“it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime”), rev'd on other grounds, 523 U.S. 538 (1998). Relying on Smith, our Supreme Court affirmed that “the use of inherently factually contradictory theories violates the principles of due process.” State v. Colon, 272 Conn. 106, 244 (2004); see Council v. Commr, of Correction, 114 Conn.App. 99, cert, denied, 292 Conn. 918 (2009). WHEREFORE, for all of the reasons set forth above, together with such other reasons as may be advanced in any memorandum of law submitted and/or hearing conducted in connection herewith, Joshua Komisarjevsky respectfully prays the Court grant the relief requested,02/04/2011 16:88 FAX 203 503 6884 SUPERIOR COURT ove Respectfully submitted, JOSHUA KOMISARJEVSKY, Defendant TIT, IN 407581 20 Academy Street ‘New Haven, CT 06510 (860) 388-3750; Fax: (860) 388-3181 (203) 776-1900; Fax: (203) 773-1904 donolaw@sbeglobal.net Bansley3@BansleyLaw.com TODD A-BOSSERT, IN 420221 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495-9795 tbussert@bussertlaw.com Attorneys for Joshua Komisarjevsky -ORDER— ‘The foregoing Motion having been considered, it is hereby Ordered: GRANTED / DENIED THE COURT By;02/04/2011 16: 5 FAX 203 503 6884 SUPERIOR COURT oor CERTIFICATE OF SERVICE 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 Attomey Office of the State's Attomey 235 Church Street New Haven, CT 06510 Todd Bussert Commissioner of the Superior Court