02/28/2011 MON 12:25 FAX 203 867 6240 NH CRIMINAL DIV No. CRO7-241860 STATE OF CONNECTICUT ) SUPERIOR COURT v. ) - NEWHAVEN JUDICIAL DISTRICT JOSHUA KOMISARJEVSKY ) FEBRUARY 28, 2011 MEMORANDUM OF DECISION RE DEFENDANT JOSHUA KOMISARJEVSKY’S MOTION FOR CHANGE OF VENUE The defendant, Joshua Komisarjevsky, is currently awaiting trial on a multicount information, including several counts of capital felony; Conn. Gon. Stat. § 53a-54b, The alleged crimes arise out of a home invasion and triple homicide in Cheshire. The case has aroused intense public interest. Komisarjevsky’s co-defendant, Steven Hayes, was tried separately for his role in the homicides in the fall of 2010. State v, Hayes, No. CRO7-0241859 (N.H.J.D. 2010). On November 8, 2010, the jury in State v. Hayes returned special verdicts mandating a sentence of death. Conn. Gen. Stat, § 53a-46a(f). Hayes was formally sentenced to death on December 2, 2010, On February 4, 2011, Komisarjevsky (hereinafter referred to as “the defendant”) filed the motion for change of venue now before the court. The motion is based on what it terms “the unprecedented, prejudicial publicity surrounding this case, as exacerbated by the recent trial of ‘Mr. Komisarjevsky’s co-defendant, Steven Hayes.” Il specifically advocates a transfer to the Stamford-Norwalk Judicial District. The motion was heard on February 24, 2011. At the hearing, the defendant elicited testimony from Steven Penrod, a professor of psychology A tit ohn 2yQESINGE of Criminal Justice. Penrod testified that, in early January 39440 $.yu3y: 4803 dota OTP NBAVH AH a Booz02/28/2011 MON 12:26 FAX 203 867 6240 NH CRIMINAL DIV Boos 2011, persons working under his supervision conducted a telephone poll of residents of the New Haven, Fairficld, Danbury and Stamford-Norwalk Judicial Districts.' The poll found the highest level of “case recognition” that Penrod had ever seen, ranging from 97% in Stamford-Norwalk to 99.5% in New Haven, A smaller, but still substantial, percentage of respondents - ranging from 70% in Stamford-Norwalk to 85% in New Haven - expressed an opinion that Komisarjevsky was guilty. (Ex. C, Table 32) Penrod’s findings were not uniformly dismal, 70.6% of his New Haven respondents reported that they could render a verdict based only on the evidence. ({d., Table 26,) When asked if they could personally be a fair and impartial juror in the case, 32.2% of the New Haven respondents answered “definitely yes,” and an additional 18% said “probably yes.” (12.7% said “not sure,” and another 2% refused to provide an answer.) (Id., Table 27. Penrod testified that his statistical findings had a margin of error of 5% to 6%. A second defense witness, Celia R. Lofink, submitted a flash drive containing 1,808 media reports concerning the Komisarjevsky and Hayes cases. (Ex. Al.) The reports had been. culled from the internet by use of a Google alert system. Although many of these reports have been printed in the New Haven Register, many others were not. (The Hartford Courant, a statewide newspaper, has, for example, extensively covered the cases in question.) The fact that all of the reports in Ex. Al have been obtained from the internet is itself "Penrod testified that the selection of the Judicial Districts to be polled had been made by the defendant's counsel. ? The Stamford-Norwalk numbers were somewhat better in this regard, According to Penrod’s report, 80% of the Stamford-Norwalk respondents said that they could render a verdict based only on the evidence, 44.1% said they could “definitely” be fair and impartial jurors, and 22.2% said they could “probably” be fair and impartial jurors. (Ex. C, Tables 26 & 27.) 202/28/2011 MON 12:26 FAX 203 867 6240 NH CRIMINAL DIV 004 significant, Bach report is available to internet users throughout the world. Anecdotally, the cases have also been reported by media located throughout the world, (Defense counsel mentioned in argument that the cases have been reported in Russia.) More to the point, there is no doubt that the cases have been widely reported throughout the State of Connecticut, As mentioned, at least 97% of Connecticut residents have at least heard of them. The Sixth Amendment guarantees criminal defendants the right to trial by an impartial jury. By statute, persons charged with criminal offenses in Connecticut are to be “tried in the | judicial district in which the offense was committed.” Conn. Gen. Stat. § 51-352(a). This statutory requirement may be overcome in appropriate cases, “Any judge holding a criminal session of the Superior Court may, upon motion, order any criminal case pending in the court to be transferred to the superior court for any other judicial district.” Conn. Gen. Stat. § 51-353. A defendant's request for change of venue must be granted “if extraordinary local prejudice will prevent a fair trial.” Skilling v. United States, 130 S.Ct. 2896, 2913 (2010) ‘The Connecticut Supreme Court has explained that, | In requesting change of venue, a defendant bears the burden of showing that he could not otherwise receive a fair and impartial trial. The trial court | exercises its discretion in deciding whether to grant such a change of venue ... ‘The trial court's discretion is governed by Practice Book § 41-23, which provides: “Upon motion of the prosecuting authority or the defendant, or upon [its] own motion, the judicial authority may order that any pending criminal matter be transferred to any other court location: (1) Ifthe judicial authority is satisfied that | a fair and impartial trial cannot be had where the case is pending...” A defendant cannot rely, however, on the mere fact of extensive pretrial news coverage to establish the existence of inherently prejudicial publicity. Prominence does not, itself, prove prejudice..... Indeed, one who is reasonably suspected of [a spectacular murder] cannot expect to remain anonymous.... Rather, the defendant must demonstrate that the publicity was so inflammatory or inaccurate that it created a trial atmosphere utterly corrupted by press coverage.02/28/2011 MON 12:26 FAX 203 887 6240 NH CRIMINAL DIV Boos State v. Reynolds, 264 Conn, 1, 222-23, 836 A.2d 224 (2003), cert, denied, 541 U.S, 908 (2004), (laternal quotation marks, brackets, and citations omitted.) The Supreme Court of the United States has recently provided additional guidance on this issue, Skilling v. United States, supra. Skilling was the chief executive officer of Enron Corporation, convicted of various counts of fraud arising from the widely reported collapse of his bankrupt corporation. He was tried in the United States District Court for the Southern District of Texas, in spite of substantial negative pretrial publicity in the district in question. On review, the ‘Supreme Court found that he had received a fair trial. Skilling recognizes that, “most cases of consequence gamer at least some pretrial publicity.” 130 S.Ct, at 2913. However, a “presumption of prejudice,” requiring a change of venue, “attends only the extreme case.” Id, at 2915. The test for the “extreme case” remains ‘whether the trial atmosphere been “utterly corrupted by press coverage.” 130 $.Ct., at 2914. The only case in which the Supreme Court has found a trial atmosphere to be “utterly corrupted” by pretrial press coverage” is Rideau v. Louisiana, 373 U.S. 723 (1963). Ridean was tried for murder in a Louisiana parish that had been corrupted by Jaw enforcement officials themselves. The morning after his arrest, Rideau was filmed in his cell being “interviewed” by the Parish Sheriff. Over the next three days, the film of this “interview” was shown on television stations throughout the parish. Three members of the jury had seen the film; two others were deputy sheriffs of the parish, Jd,, at 724-25. The Court reversed Rideau’s conviction, terming the court proceedings in question “a hollow formality.” Id, at 726. > Other cases have involved “media interference with courtroom proceedings during tial.” Skilling v, United States, supra, 130 S.Ct, at 2915 n. 14, 402/28/2011 MON 12:27 FAX 203 867 6240 NH CRIMINAL DIV ove Skilling employs a four-factor test in determining whether a “presumption of prejudice,” like that found in Rideau, exists in a given case: (1) “the size and characteristics of the community in which the crime occurred,” (2) whether news stories about the defendant - “contained [a] confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight,” (3) the lapse of time between the crime and the trial, and (4) the actual verdict of the jury. 130 S.Ct, at 2915-16. These factors must now be considered in the present case. First, Penrod’s report states that the New Haven Judicial District has a population of 846,101. (Ex. C., Table 32.)' This popalation is substantially greater than that of Rideau’s parish, which had a population of approximately 150,000 people. 373 U.S., at 724, The New Haven Judicial District, moreover, consists of thirteen towns with a significant diversity of residents. “Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain.” Skilling v. United States, supra, 130 S.Ct, at 2915, ‘Second, media reports concerning the cases in question have unquestionably contained much negative information about Komisarjovsky. Skilling, however, specifically focuses on publicity concerning “admission[s] of guilt” of the type at issue in Rideaw. 130 S.Ct, at 2916. ‘Some of Komisarjevksy’s post-arrest statements to the police and certain diaries apparently authored by him in prison were admitted into evidence in the penalty phase of State v. Hayes, and these admissions generated news reports at the time. But these admissions do not appear to have been particularly salient in the public mind. According to Penrod, when asked to cite “the most “The court will assume the accuracy of the defendant’s population figure for purposes of this analysis.02/28/2011 MON 12:27 FAX 203 867 6240 NH CRIMINAL DIV oor compelling evidence against Komisarjevsky,” only 1% of New Haven Judicial District residents named “the journals,” and 6.3% cited “admitted guilt.” (Ex. C., Table 22.) The most common responses, in contrast, were “caught at Petit’s house” (26.4%)* and “nothing, don’t know” (26.6%). (Id) ‘Third, the crime in this case occurred on July 23, 2007. By the time the jury in this case is impaneled, over four years will have elapsed since the crime. This was also the period involved in Stalling. 130 S.Ct., at 2916. This prong of the Skilling analysis is made more complicated by the fact that Komisarjevsky’s co-defendant. Steven Hayes, was tried in the fall of 2009, and the Hayes trial plainly generated publicity unfavorable to Komisarjevsky. But, as discussed in the analysis of Skilling’s second prong, supra, this publicity has not created an indelible impression on the public with respect to Komisarjevsky’s actual admissions. As Skilling pertinently observes, “[tJhis may come as a surprise to lawyers and judges, but itis simply a fact of life that matters which interest them may be less fascinating to the public generally.” 130 S.Ct, at 2920- 21 n. 28, (Internal quotation marks and citation omitted.) Fourth, although we do not know what the verdit willbe in Komisarjevsky’s case, itis significant that the jury in State v. Hayes, which had also been exposed to considerable pretrial publicity, acquitted Hayes of one count of arson. This fact serves as a counterweight to defense suggestions in this case that, in spite of their oaths and instructions, jurors’ verdicts are simply a function of pretrial publicity. In fact, as Skilling points out, “it is a premise of [our justice] system that jurors will set aside their preconceptions when they enter the courtroom and decide cases * Defendant’s counsel has made it clear in the argument of numerous motions that the defendant will not, in any event, deny being at the house in question, 602/28/2011 MON 12:27 FAK 203 867 6240 NH CRIMINAL DIV Boos based on the evidence presented.” 130 $.Ct., at 2925 n. 34. After a careful consideration of the Skilling factors in light of the evidence presented here, the court finds that the defendant has failed to establish a presumption of prejudice requiring a change of venue prior to the beginning of the voir dire process. ‘The procedural posture of this case is important. This motion has been presented prior to the beginning of the voir dire process, The evidence presented does not establish that this is a case, such as Rideau, where “even the most scrupulous voir dire would {be] ‘but a hollow formality’ incapable of reliably producing an impartial jury.” Skilling v. United States, supra, 130 S.Ct, at 2952 (Sotomayor, J., dissenting). This is, however, the beginning, rather than the end, of the process, The circumstances of this case plainly require the court “to conduct a thorough voir dire in which prospective jurors’ attitudes about the case [are] closely scrutinized.” Jd. “[T]he ‘key to determining the appropriateness of a change of venue is a searching voir dire.” United States v. Sablnani, $99 F.34 215, 234 (2d Cir. 2010). (intemal quotation marks and citation omitted.) | Connecticut law provides a particularly searching voir dire process by allowing each party “the right to examine ... each juror outside the presence of other prospective jurors.” Conn. Gen. Stat. § 54-82f, The vastly more truncated Federal jury selection process found constitutionally | adequate in Skilling took about five hours. (30 8.Ct., at 2918. The Connecticut jury selection in State v. Hayes, in contrast, took forty-eight court days - a time period typical of capital jury selection procedures in the State, Jury selection in the present case will assuredly occupy a period of time much closer to that of Hayes than to that of Skilling. Throughout the process, the parties will have ample opportunity to inquire about the effects of pretrial publicity on the individuals02/28/2011 MON 12:27 FAX 203 867 6240 NH CRIMINAL DIV Boos involved. ‘The goal of the voir dire process is not to select twelve jurors “with empty heads.” ‘Skilling v. United States, supra. 130 $,Ct., at 2925. “It is sufficient if the jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court.” Id. (intemal quotation marks, brackets, and citation omitted.) If the voir dire process succeeds in producing the requisite number of jurors meeting this standard, venue need not be changed. Id. If the voir dire process does not so succeed, the motion now before the court must be revisited in light of that experience. For the reasons stated above, the motion is denied without prejudice, Ton'C. Blue Judge of the Superior Court