02/04/2011 17:14 FAX 203 503 6384 SUPERIOR COURT oor STATE OF CONNECTICUT DOCKET NO. CRO7-241860 ; SUPERIOR COURT STATE OF CONNECTICUT, : _ SUDICIAL DISTRICT FOR NEM HAUEN un v. | arewnaven “SUPERIPE SY JOSHUA KOMISARIEVSKY. : FEBRUARY4,2011 FEB 042011 CHIEF CLERKS | OFFICE DEFENDANT JOSHUA KOMISARJEVSKY’S MOTION TO DISQUALIFY COMES NOW Joshua Komisarjevsky, by and through the undersigned and pursuant to Practice Book §§ 1-22 and 1-23, to the Code of Judicial Conduct (effective January 1, 2011), to the Sixth and 14th Amendments to the United States Constitution and to Article 1 § 8 of the State of Connecticut Constitution, and hereby moves to disqualify the Honorable Jon C. Blue from presiding over this case based on the partiality, lack of objectivity and unsuitable temperament — this is, more than the mere appearance of the same — Judge Blue demonstrated in his administration and management of the trial of Mr. Komisarjevsky’s co~tefendant Steven Hayes. See Code of Judicial Conduct, Rule 2.11, Comment 1 (“Under this Rule, a judge is disqualified wherever the judge's impartiality might reasonably be questioned, regardless of whether any specific provisions of paragraphs (A)(1) through (5) apply.”); see also Rosado v, Bridgeport Roman Catholic Diocesan Corp.. 292 Conn. 656, 668 (2009) (“the question is not only whether the particular judge is, in fact, impartial, but whether a reasonable person would question the Jjudge’s impartiality on the basis of all the circumstances"). This motion is filed by the date prosoribed by the Court, along with those motions potentially impacting jury selection, and more than ten (10) days before the scheduled motions hearing, February 15-17, 2011. See P.B. § 1-23. Mr, Komisarjevsky requests that a judge other than Judge Blue hear and rule on this motion. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 746 n. 16 (1982) (“the02/04/2011 17:14 FAX 203 503 6884 SUPERIOR COURT Booz procedure employed in a number of jurisdictions” that has “merit”. This is because, in part, “Judges who are asked to recuse themselves are reluctant to impugn their own standards.” Rosado v. Bridgeport Roman Catholic Diocesan Corp,, 292 Conn. at 21 (citation omitted). Additionally, Mr. Komisarjevsky requests Judge Blue refrain from ruling on any other substantive motions in this case until the issue presented herein is resolved conclusively. In this regard, to the extent that this motion is denied Mr. Komisarjevsky intends to seek review via a petition for writ of mandamus. Seg C.G.S. § 52-485. An affidavit, supporting memoranda and proposed order are included herewith. Respectfully submitted, JOSHUA KOMISARJEVSKY, Defendant 20 Academy Street ‘New Haven, CT 06510 (660) 388. 3750; Fax: (860) 388 3181 (203) 776-1900; Fax: (203) 773-1904 donolaw@sbeglobal net Bansley3@BensleyLaw.com TODD A. BUSSERT, JN 420221 103 Whitey Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495-9795 thussert@bussertlaw.com Attomeys for Joshua Komisarjevsky02/04/2011 17:14 FAX 203 503 6884 ‘SUPERIOR COURT ORDER ‘The foregoing Motion having been considered, it is hereby Ordered; GRANTED / DENIED t THE COURT By: a Boos02/04/2011 17:14 FAX 203 503 6384 SUPERTOR COURT oos STATE OF CONNECTICUT DOCKET NO. CRO7-241860 I SUPERIOR COURT STATE OF CONNECTICUT, : JUDICIAL DISTRICT FOR NEW HAVEN v. : ATNEW HAVEN JOSHUA KOMISARJEVSKY. AEFIDAVIT OF ATTORNEY JEREMIAH DONOVAN JEREMIAH DONOVAN, hereby deposes and says that the following is true: 1, Lam a member in good standing of the Bars of Connecticut and New York, Iam also a member in good standing of the United States Court of Appeals for the Second Circuit, and of the United States District Court for the Districts of Connecticut, 2. Lam appointed counsel for Joshua Komisarjevsky in the above-captioned matter and have served in that capacity since on or about July 31, 2007. bk 3. For the first approximate two years of my appointment, I and/or my co-counsel appeared regularly before the Court (Damiani, J.) for periodic status conferences, Since Judge Damiani was transferred out of the New Haven Superior Court in September 2009, counsel for ‘Mr. Komisarjevsky has, on information and belief, appeared for six status conferences: on September 3, 2009 (before a scheduled motions hearing re: the state's motion for a joint tril); on October 1, 2009; on October 21, 2009 (followed by a status hearing); on December 10, 2009 (before a scheduled motions hearing re: Hayes's subpoena of Mr. Komisarjevsky’s DOC file); on | ‘September 8, 2010 and on December 7, 2010. The Honorable Roland Fasano presided over the September 3, 2009 conference. Judge Blue presided over the conferences on October 1, 2009, on October 21, 2009, on December 10, 2009, on September 8, 2010 and on December 7, 2010. ‘Counsel for the state was present at each of these conferences. Counsel for Steven Hayes was02/04/2011 17:14 FAX 203 503 6884 SUPERIOR COURT Moos not present at the September 8, 2010 or the December 7, 2010 conferences, After the status conference on December 10, 2009, counsel for Mr. Komisarjevsky were not present for status and/or in chambers conferences held in State v. Hayes, Docket No. CRO7-241860. On information and belief, counsel for Hayes and for the state were present at those conferences. 4, As it concems the instant case, my first contact with the Honorable Jon C. Blue came at an in-chambers status conference, on July 21,2009, Present at that status conference were Judge Damiani, then the Part A presiding judge; the Honorable Roland Fasano, the incoming Part A presiding judge; Judge Blue, who was to preside over the trial of Steven Hayes; counsel for the State and for Messrs. Hayes and Komisajevsky; and, on information and belief, Court | Clerk Edjah Jean-Louis. | 5. Whereas July 21, 2009 marked the first time I saw Judge Blue in connection with the | proceedings in these cases, the parties knew before that day that Judge Blue had been assigned to preside over the Hayes trial. It was and is my understanding that Judge Blue requested to be assigned to preside over the Haves trial. 6. During a status conference on September 8, 2010, I asked Judge Blue to accommodate iy schedule and that of my two co-counsel, by affording us one scheduled day off per week from jury and selection and trial even if that were only bi-weekly. In support of my request, I _cited experience with other judges in lengthy and complex trials. In response to my reference to | the professional courtesy extended by other courts, Judge Blue said: “My mother didn’t name me ‘Other Judges’.” On information and belief, Judge Blue had used that phrase during at least one prior status conference, Thereafter, on December 7, 2010, Judge Blue announced that he will not make the requested accommodation notwithstanding the hardship this decision will bave on Mr.02/04/2011 17:15 FAX 203 503 6884 SUPERIOR COURT Boos Komisarjevsky’s counsel, who are in private practice separately and who are each serving as appointed counsel. 7. 1, as well as my co-counsel, attended portions of the jury selection, trial and penalty phase proceedings in the matter of State v, Steven Hayes. I did not attend these proceedings in their entirety due to, among other things, caseload demands and client responsibilities. I have, however, conferred with my co-counsel and Steven Hayes’s counsel and reviewed transoripts of the Hayes proceedings as well as media coverage, from which I provide: @ —_ L.along with other members of Mr. Komisarjevsky’s defense team, observed several days of jury selection in the Hayes case. We each separately observed Judge Blue speak to venire persons about the evidence to be presented in the case. For instance, Judge Blue described the photographs of the victims taken at the home following the fire as “graphic evidence ... horrific as ever seen” while also saying “I’m a veteran and I'm ‘troubled by the pictures I've seen in this case,,. [T]he pictures are really bad” and cause “understand[able] emotional reactions,” Judge Blue also spoke about “unpleasant facts” the details of which “disturb most human beings.” | (b) Prior to the start of evidence in the Hayes case, on September 13, 2010, I learned that Judge Blue bad reserved courtroom seating for the media, I also leamed that Judge | Blue had authorized use of a room on the sixth floor of courthouse for members of the Petit and Hawke families, and their supporters, to gather. From my conversations with ‘New Haven Public Defender Thomas Ullmena, it is my understanding that neither such accommodation had ever before been made in the New Haven Superior Court. On information and belief, this quoted language is accurate or substantially accurate based on the observations and note taking by members of Mr. Komisarjevsky’s defense team while observing jury selection in State v, Hayes. Unfortunately, Mr. Komisarjevsky has to date received only one of six ordered jury selection transcripts from the Hayes case.02/04/2011 17:18 FAX 203 503 6884 SUPERIOR COURT oor (©) At the outset of the September 13 proceedings, Judge Blue stated: Ihave a brief announcement for the audience, especially the media members of the audience, before we get started. Many of you have heard this informally | before, that as the notice bas gone out from the judicial branch in Hartford, it has been decided that tweeking [sic] from the courtroom will be allowed as long as it | is not disruptive. If something becomes disruptive, the marshals or I will intervene. By rule, no photographs, audio recording, or video recordings are allowed, and the marshals will enforce this rule. 9/13/10 Tr. 4, Although aware of the Judicial Branch’s guidelines for The Use and Possession of Electronic Devices in Superior Court, which allow for the use of electronic | devices in courtrooms subject to judicial authorization, I am unfamiliar to what notice | Judge Blue was referring. Iunderstand from conversations with Mr. Hayes's attomeys that before making his “brief announcement,” Judge Blue did not seeks the parties’ | position about allowing those in attendance to broadcast courtroom proceedings via Twitter, @ On September 14, 2010, Judge Blue dismissed juror John Lively after Mr. Lively raised concems about the state’s introduction of evidence. In dismissing Mr. Lively, Judge Blue stated: “Mr. Lively seemed so agitated, I am concerned about possible | contamination of the other jurors.” 9/14/10 Tr. 87. Having been present for the entirety of that day’s proceedings involving Mr. Lively, I did not find him nervous, frantic, | distressed or agitated in any way, Mr. Lively presented as extremely conscientious and | level-headed, and there was no evidence or indication that Mr. Lively had or would speak to other jurors about the concems he raised. My co-counsel concurred in this assessment, | (©) On September 15, 2010, following the introduction crime scene photographs showing the three victims, Judge Blue, with the parties’ consent, excused the jury for the day early, In so doing, Judge Blue stated:02/04/2011 17:15 FAX 203 503 6884 ‘SUPERIOR COURT foos And, you know, we recognize that you've been through quite a bit and, as I said, 1 don’t want to make this sound routine at all, but I've been through quite a few homicide cases and emotionally this, if it’s any consolation, this is - you have been through the roughest part, not that it’s going to be a bed of roses for the next ~ for the remaining part of the trial, but you have been through probably the worst part, I’m going to let you go for the day. [...] ‘You know, you could talk about other things. But you can’t talk about the case and what you have seen. You can feel free to give each other a hug, but you can’t talk about the case. 9/15/10 Tr. 155. The media reported these comments. See Alaine Griffin, Cheshire Authorities Describe Grim Search For Bodies, Hartford Courant (Sept. 16, 2010) (“Before letting them go, he said, “You've been through the roughest part, Feel free to give each other hugs but don't talk about the case.”), (® No evidence was presented in the Hayes case on September 20 and September 21, 2010 due to, Judge Blue’s unavailability. At the start of court on September 22, Judge Blue read a statement: On Sunday, I went to the hospital for some precautionary tests, unfortunately the tests could not be conducted until Monday moming. On Monday morning, I took the tests, passed them with flying colors, and was promptly discharged. I regret any delay this minor incident has caused. You should keep in mind that whatever else this trial may be about, it’s not about me, 9/22/10 Tr. 5; see Alaine Griffin, Judge Leaves Hospital; Hayes Trial to Resume Wednesday, Hartford Courant (Sept. 20, 2010) (“Hospital officials said Judge Jon C. Blue was released from Yale-New Haven Hospital at 1:30 p.m. Monday after he was admitted at about 5 p.m, Sunday.”). Itis unclear whether these apparently unexpected precautionary tests were, in any way. related to Judge Blue’s involvement with the Hayes case, But cf,, Id, (“Sources said he experienced light-headedness after the medication he is taking for a medical condition did not mix well with food he had eaten.”),02/04/2011 17:15 FAX 203 503 6884 SUPERIOR COURT ooo () . On October 4, 2010, the jury was sent out to deliberate on Steven Hayes’s guilt or innocence as to the charged counts, I understand from conversations with Hayes's ‘counsel that soon thereafter Judge Blue called the parties into chambers to discuss procedures selated to the retum of the verdict. In this regard, I understand that defense counsel asked Judge Blue to alert the defendant and the defense team of the verdict concerning the capital counts in a non-conspicuous manner before it was announced in open court. Judge Blue denied the request because doing so would detract from “the drama” of the proceedings and be “unfair” to others present. (@) —_L understand that, on November 1, 2010 — the final day of penalty phase evidence in the Hayes case— at approximately 8:40 am, Judge Blue appeared in open court and handed out chocolate chip cookies, which he had made, to those present. Consistent with one reporter's broadcast account, experience suggests that the majority of those then present more than one hour before the scheduled start of evidence were members of the media or members of the Petit or Hawke families, or their supporters, and not the parties, Several reporters broucleast the event live via Twitter: + At 8:40am, Fox News reporter George Colli wrote, “VOTE BLUE... Judge Blue welcomes the reporters and public with homemade Chocolate chip cookies .. #hayes”. At 8:43am, Mr, Colli wrote, “Judge Blue's cookies #hayes http://twitpic.com/32xp66”. That link was to a photo of the cookie Mr, Colli took, apparently inside the courthouse. Ex. A. + At8:42am, News Channel 8 reporter Brin Cox wrote, “Get this Judge Blue gave us all cookies HE made yummy #hayes”. Ex. B. + At9:00am, Hartford Courant columnist Helen Ubifias wrote, “Reporters, who didn’t get a Blue cookie, debating whether ingesting a judicial snack is a conflict of interest.#Hayes”. Ex. C. The available record does not reveal whether Judge Blue gave cookies to others outside the courtroom, such as courthouse personnel or jurors.02/04/2011 17:15 FAX 203 503 6884 SUPERIOR COURT (oro i @ At the start of the proceedings, on the morning of November 1, the Court took up an issue regarding a note which an alternate juror had written to one of the Marshals. | During the course of canvassing said juror, Judge Blue stated, among other things: “...1 i ‘want this jury to have, you know, kind of a businesslike atmosphere about it.” 11/1/10 Tr. 9. Then in admonishing the juror, Judge Blue said: T mean, you know, juries are made up of human beings, and I don't want to ~ I don’t like to embarrass you, but we're all under the public eye, and everything that everybody does, including you and ine, is subject to being, you know, spread out in the public record. I mean, if you Are here on a little automobile accident case that nobody cares about, that’s one/thing, but if you are involved in this case, believe me, as I said, we're all under the public eye, and you just have to realize that i Id, 10. After hearing from the parties and denying, without prejudice, the defense’s request to excuse the juror, Judge Blue brought be juror back into court and, among other things, stated, “...[W]e live in a fish bowl in this case, and that’s what all of us have to understand,” adding: But it’s as I said, we live in a fish bow, and I'm just saying to you. I’m not going to say it to the jury at large, all of us have to understand, and this includes me, and the attorneys, as well as court staff, as well as the jurors that, you know, any questionable behavior on any of our parts could jeopardize the integrity of the process that we have all, you know, devoted so much of ourselves to for so long a period of time and properly so. i Id, 15, 16. @ — OnNovember 8, 2010, the jury returned its penalty phase verdict, Before excusing the jury, Judge Blue characterized the jury's service as “a profound time consuming and emotionally searing assignment.” 11/8/10 Tx. $4. Judge Blue continued: ‘You have been exposed to images of depravity and horror that no human being should ever have to view. And, most importantly, you have given a feir trial on a literal matter of life and death to a man|universally despised, and with good reason, because of his terrible crime, but a fellow human being nonetheless. This | | 71 |OssGesSGRL TAG FAR 203 009 C684 SUPERIOR COURT oi | is the highest and noblest task that our society can demand of its citizens, and you have performed it with the greatest distinction. This case has, obviously, been a curse ahd a burden for you and for me, and forall of us... | | 1d, 54-55, ‘The media reported these comments) See Alaine Griffin, Hayes Sentenced to Death in Murders of Petit Family, Hartford Courant (Nov. 9, 2010); Randall Beach, Dr. Petit: ‘Glad for the girls that there was justice.”las Hayes sentenced to die, NH Register (Nov. 9, 2010); Helen Ubifias, Justice, But No ¢ losure, Hartford Courant (Nov. 9, 2010). (© Tunderstand that, on November 8, an uskaown number of jurors accepted Judge Blue's informal request to meet with him privately immediately after being excused. I further understand that Chief Judicial Marshal Thomas Bouley and Clerk Edjeh Jean- Louis were present. I finally understand that when one or more jurors asked whether they could meet with William Petit, an anticipated Slate witness in Mr. Komisarjevsky’s case, Judge Blue, who is scheduled to preside over this case, said they could (though, on information and belief, Judge Blue had no foreknowledge of the meeting between unknown jurors and William Petit in the courtibuse Jater that day). ber 24, 2010, regarding Mr. Hayes (@) Ata post-trial motions hearing, on Novemt request for new tial, Judge Blue, in responding to Mr. Hayes's claim involving a juror who admitted to “persistent nightmares during the course of the trial ... a night that is taking place of an eleven year old tied up and turning” stated: It would be the rare human being who did not have nightmares,... But this is evidence, and the fact of the matter is that your client left in his wake a scene of unimaginable horror..., And the idea that the defendant is not entitled to a jury of robots; he is entitled to a jury that’s going to consider the case on the evidence, and the fact that the evidence would give almost any reasonable human being, nightmares, this is evidence created by your client, it’s not a reason to undermine the verdict, —(02/04/2011 17°16 FAX 203 503 6884 SUPERIOR COURT oz | 11/24/10 Tr, 20-21, The media reported the “unimaginable horror” comment. See Randall Beach, Hayes team Joses bid to overurh conviction on Petit assault; ruling on new trial postponed, NH Register (Nov. 25, 2010 ("Your client was at the scene of an unimaginable horror,’ Blue told Ullmann, ‘and this ‘was his handiwork.”); Associated Press, Judge hears challenge to Conn. death sentence, Hartford Courant (Nov. 24, 2010). ‘When Hayes argued about the propriety of a decision “driven by emotions and some of them having those kind of nightmares during tris,” Judge Blue answered: “Emotions, but here the emotions and the evidence.are.tied together.” Id. 21-22, (m) In pronouncing Steven Hayes’s senened on December 2, 2010, Judge Blue stated that Hayes’s crimes were “more horific than any that have come before me in my long judicial career.” 12/2/10 Tr. $7. The media reported this comment. See Randall Beach, Judge tells Hayes death sentence is ‘ ote for yourself in flames on July 23. 2007, NH Register (Dec. 3, 2010) (“But Superiey Court Judge Jon C, Blue, noting he was duty-bound to carry out the jurors’ convictions and capital punishment verdiot, told Hayes: "Your erimes ate more horrific than any that have come before me in my long judicial career.’ ‘This is a terrible sentence,” Blue said, ‘But it’s one you wrote for yourself in flames on July 23, 2007.’”); see aso Rinker Buck, Year in Review: Trial of Steven Hayes, Hartford Courant (Dec. 29, 2010) (“It is considered one of the most horrific crimes in Connecticut history. 8. Also at the December 7 status conference (Paragraph 6, ante), I advised Judge Blue | that Mr, Komisasjevsky intended to request the use of ror questionnaires, which Ihave used previously in complex trials and which I understand arelused commonly in capital cases to assess a venire person's views and feelings conceming the death penalty, among other things,(02/04/2011 17:16 FAX 203 503 6864 SUPERIOR COURT O13 ‘Notwithstanding that according to the Court's briefing schedule formal motions are not due until i February 4, 2011, Judge Blue stated that he will not Pet the use of questionnaires in this case, saying he was “not agnostic” on the issue, In this regard, Judge Blue cited his experience in three other capital cases: presiding over jury selection jn the Russell Peeler, Jr. case; presiding over jury selection and trial in the Jonathon Mills case; jand presiding over jury selection and trial in the Steve Hayes case, I know from conversations wh ‘New Haven Public Defender Thomas Ullmann, counsel for both Messrs. Mills and Hayes, that the defense made no attempt to use questionnaires in either the Mills case or the Hayes nat due to Attomey Ullmann’s personal voir dire preferences, meaning Judge Blue’s views on the isme of using questionnaires during voir I dire in capital cases were not reached after hearing and vonsidering arguments of counsel on the or 9. Atthe most recent, December 7 status conference, I advised Judge Blue of our interest subject in in him recusing himself from this case, Judge Blue responded, inter alia, to the effect that he would not stay where he was not wanted and thet he would confer with Judge Fasano about recusal. I expressed my opinion that conferring with ge Fasano seemed like a good idea. At of this writing, Judge Blue has not recused himself nor has he advised the parties of any communication with Judge Fasano, or oxhaes WHET eal branch, 10. Tam concemed about Judge Blue’s willingress to allow Mr. Komisarjevsky to make arecord for appeal. In particular, from what I saw and heard about Judge Blue’s presiding over the Hayes case, Judge Blue appears to approach many issues predetermined as to his decision, that is, before hearing fully from the parties. I perceive that Judge Blue tends to limit parties’ ability to make a record while concurrently going on atlengeh to make a judicial record. Tam also concerned that any judge, having presided over such a highly publicized case, will be * | 10-~ | | |idelinieselinencucine cull cried nln! load td udbaha lel ee O14 | reluctant to decide differently any issue that has already been ruled upon in the first trial, even though the record, the circumstances and the argument may be different in the second ‘ial, for fear that a different ruling may render the judgment in the first case vulnerable on appeal, 11, Pursuant to Practice Book § 1-23, I certify that Mr. Komisarjevsky’s motion to disqualify is made in good faith. Ideclare under penalty of perjury that the forces is true and correct to the best of my knowledge and understanding, Date: Februar], 2011 New Haven, Conilgctiout i02/04/2011 17:16 FAX 203 503 6984 SUPERIOR COURT mos Todd Bussert RSS Feed: Twitter / GeorgeColl Monday, November 01, 2010 8:40 AM Twitter GeorgeColi GeorgeColl: VOTE BLUE... Judge Blue welcomes the reporters and public with homemade Chocolate chip cookies... #hayes | I Full article tink: http://twitter.com/GeorgeColl/statuses/29967847008 GeorgeColli: VOTE BLUE... Judge Blue welcomes the reporters and public with homemade Chocolate chip cookies... #hayes | View article..02/04/2011 17:16 FAX 203 503 6884 SUPERIOR COURT Todd Bus: RSS Feed: Posted on: Author: Subject: Full article tink: Twitter / GeorgeColl Monday, November 01, 2010 8:43 AM | Twitter /’ GeorgeColl | GeorgeColl: Judge Blue's cookies #hayes http:/witple.conv32xp68 httpu/twitter. com/GeorgeCollistetuses/293681 13268 GeorgeColli: Judge Blue's cookies #hayes http://twitpic.com/32xp66 iew article, Bors02/ 4/201 11 8 FAX 203 503 6884 twitpic "2210 Tape ne, ht Rear Login to leave a comment SUPERIOR COURT orr i ek hereto login or create an accounts More photos by GeorgeColll G Sots shove Purr photo on your bie Vows 128, Events Tage | Home Search Fx Contct API Terme pricy02/04/2011 17:16 FAX 203 503 6384 SUPERIOR COURT ois Todd Bussert ‘Twitter / ErinCox8 | | Monday, November 01, 2010 8:42 AM. ‘Twitter / ErinCox8 | i ErinCoxé: Get this Judge Blue gave us all cookies HE made yummy #hayes Full article link: http-/Awitter. com/ErinCox8/statuses/20368024993, | i ErinCox8: Get this Judge Blue gave us all cookies HE made vuriny tthayeso19 02/04/2011 17:17 FAX 203 803 6884 SUPERIOR COURT a | | Todd Bussert \ Twitter / NotesFromHeL Monday, November 01,2010 9:00 AM Twitter / NotesFromHei. | Notes romHiel: Reporters, who didn't get a Blue cookie, debating whether ingesting a Judicial snack is @ confit of interest#Hayes | Full article tink: http:/twitter.com/NotesFromHeL/statuses/28360426320 NotesFromHeL: Reporters, who didn't get a Blue cookie, debating whether ingesting a judicial snack is a | conflict of interest.#Hayes View article, |@ 02/04/2011 17:17 FAX 203 503 6884 SUPERIOR COURT o20 STATE OF CONNECTICUT DOCKET NO. CRO7-241860 d SUPERIOR COURT STATE OF CONNECTICUT, i JUDICIAL DISTRICT FOR NEW HAVEN v, el AT'NEW HAVEN JOSHUA KOMISARJEVSKY. ‘ FEBRUARY 4, 2011 i MEMORANDUM IN surtoxt OF DEFENDANT JOSHUA KOMISARJEVSKY?S MOTION TO DISQU, Having moved to disqualify Judge Biue from presiding further in the above-captioned matter, Joshua Komisarjevsky offers this memorandum in|support thereof RELEVANT BACKGROUND Procedural and factual information relevant to this motion and memorandum is found in the affidavit of Attomey Jeremiah Donovan attached hereth and incorporated herein by | reference, Mr. Komisarjevsky also requests a hearing and the ability to present witnesses, including, but not limited to, Chief Judicial Marshal Thomas Bouley, Clerk Edjeh Jean-Louis, | Attomey Thomas Ullmann, Attomey Patrick Culligan, Attomey Michael Dearington and Attomey Gary Nicholson. Mr, Komisarjevsky also seeks Itave to inquire of Judge Blue, ARGUMENT | “An independent, fair and impartial judiciary is i ndispensible to our system of justice,” Code of Judicial Conduct, Preamble § 1. Public confidence in the justice system and rule of law depends upon it. Therefore, “[judges] should aspire at all times to conduct that ensures the ‘seatest possible public confidence in their independence, itnpartiality, integrity, and competence.” Id. § 2, “An appearance of bias may be just ps damaging to public confidence in the administration of justice as the actual presence of bias.” Bonelli v. Bonelli, 214 Conn, 14, 19a 02/04/2011 17:17 FAX 203 503 6884 ‘SUPERIOR COURT ozs (1990). Because Judge Blue has demonstrated bias, that s, he has done more than create the appearance thereof, he must be disqualified, | A Standards, “An independent, fair and impartial judiciary is indispensible to our system of justice,” Code of Judicial Conduct, Preamble § 1. “[Judges] should aspire at all times to conduct that ensures the greatest possible public confidence in their ingependence, impartiality, integrity, and ompetence.” Id, § 2. “A judge shall acta all imes in a manner that promotes public confidence in the independence”, integrity’, and imparti ity’ of the judiciary, and shall avoid impropriety and the appearance of impropriety, The test for appearance of impropriety is ‘whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely oh the judge's honesty, impartiality, temperament, or fitness to serve as a judge.” Code of Judicial Conduct, Rule 1.2, “A judicial authority shall, upon motion of either: party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein Pursuant to Rule 2.11 of the Code of Judicial Conduct.” P,B. § 1-22(a). Rule 2.11(A) requires that a judge “disqualify himself or herself in any pro in which the judge’s impartiality might reasonably be questioned.” In this regard, the rule provides a non-exhaustive list of circumstances, including where “[¢Jhe judge has a personal bias or prejudice conceming a Party... or personal knowledge of facts that are dispute in the proceeding.” Id,(A)(1). Furthermore, the commentary provides that “[uJader this!Rule, a judge is disqualified whenever “Independence’ means a judge’s freedom from influerice or controls other than those established by law.” Code of Judicial Conduct, Terminology. > “Integrity? means probity, fairness, honesty, uprightness, and soundness of character.” Code of Judicial Conduet, Terminology. * ““Impartial,’ impartiality,’ and ‘impartially” miean absénbe of bias or prejudice in favor of, or against, particular parties or classes of parties, as well. ax mintenance of an open mind in considering issues that may come before the judge.” Code pf Judicial Conduct, Terminology.02/04/2011 17:17 FAX 203 503 6884 SUPERIOR COURT o22 the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific Provisions of subsections (a) (1) through (5) apply.” Code of Judicial Conduct, Rule 2,11- Comment (1). “Accusations of judicial bias or misconduct impliate the basic concepts of a fair trial” as well as, in the criminal context, due process. Cameron v. Cameron, 187 Conn, 163, 168 (1982); See State v. D’ Antonio, 274 Conn, 658, 673 (2005). “The (partiality) on the part of the trier will suffice to constitutd appearance as well as the actuality of proof of bias sufficient to warrant disqualification.” State v. Montini, 52 Conn.App. 682, 644, cert, denied, 249 Conn, 909 (1999). Importantly, the testis not whether a judge’s impartiality uuld be put to doubt in the mind of the judge himself or “whether the particular judges; in fact, impartial[,) but whether a reasonable person would question the judge’s impartiality State v. Webb, 238 Conn. 389, 460 (1996). “The standard] not the judge’s subjective view as to whether he or she can nthe basis of all the circumstances.” {to be employed is an objective one, be fair and impartial in hearing the case.” State v. Martin, 77 Conn.App. 778, 784-86, cert. denied, 266 Conn. 906 (2003), Ifit is a close question about whether disqualification is required; Nichols v. Alley. 71 F.3d 347, 352 (1995) (citation omitted B. Judge Blue’s Conduct and Comments In the Temperament Unsuitable for Mr. Komisarj Respectfully, it is the rare judge who would endea ‘the balance tips in favor of recusal.” ). ‘es Case Reveal a Partiality and a ’s Trial, to be assigned to a case such Steve Hayes and Joshua Komisarjevsky’s, Yet, where other judges may have expressed reservation, Judge Blue apparently leaped into the fray. On the one hand, a case could be made for Judicial interest deriving from the complexities attendant to capital Judge Blue’s conduct and comments suggest otherwise. roceedings, On the other hand, fige Blue has a stated affinity for “the rama,” though perhaps he failed to foresee the emotional toll it admittedly exacted on him.SUPERTOR COURT 7 FAX 203 503 6884 ozs ‘There is no question thet Judge Blue proceeded into the guilvinnocence phase of Hayes Jnowing of Mz. Komisarjevsky’s interest in that case aid the possible ‘implication(s) for the trial Yetto occur, For one, on September 8, 2010, Judge Blieleonvened undersigned counsel and the State's counsel for a status conference to discuss scheduling of jury selection in Mr, Komisarjevsky’s ease, at which time the State opined a thtee-to-four month gap between the conclusion of the Hayes trial and jury selection in this mafter seemed appropriate given the anticipated media coverage. Then, just prior to the startiof evidence in Haves, on September 13, Judge Blue heard Mr. Komnisarjevsky with respect to Mr, ‘Witnesses, which was grounded in the reality that most, i ‘omisarjevsky’s Motion to Sequester inot all, of the State’s witnesses in the Hayes case will be called in Mr, Komisarjevsky’s case. Ste, e292, 9/13/10 Tr. 51 (‘Tunderstand ‘that Mr, Bansley is concerned about the scenario of a wit i ‘Who gets off the stand, hears the rest of the trial, and then unconsciously come up with some new version at the soc , such as Dr. Petit, for example, lecides to either consciously or pd trial.”); id. 60 (“As counsel know, ‘we have yet to set the date of the trial in the Komisarjevsky case, but certainly, since we're just starting the Hayes case, it's fair to say that the jury selecticn in the Komisarjevsky case is at least a few months off, it may end up being longer, I don't want to speculate about that with the opening of evidence in Komisarjevsky really unclear now). Notwithstanding this knowledge and despite a stated sensitivity for the “fish bow!” of the Haves tral, which he helped create by setting aside two rows of seats for the media, Judge Blue, ‘who had denied Mr. Hayes the chance to show venire persdns photographs of the victims that the State intended to introduce during its case-in-chief, instead pffered the jury what he viewed the evidence to be: “graphic evidence ... horrific as ever seed; “I'm a veteran and I'm troubled by the pictures I've seen in this case”; “understand{able] emdtional reactions” and “disturb most024 02/04/2011 17:17 FAX 203 503 688d SUPERTOR COURT a human beings,” as just but a few examples presently available. Once Hayes’s trial began, Judge Blue repeatedly made gratuitous comments on the record that further Served to impact adversely ‘Mr. Komisarjevsky’s constitutional right to a fair trial. |speciicaty, while Judge Blue’s widely Publicized sound bites in Hayes may have been allowabld if Hayes were a stand-alone defendant (See State v. James, 211 Conn, 555, $71 (1989)), they atelunderstood by a reasonable person of ordinary intelligence (i.e., prospective jurors) as Sai is that also directly concern Mr. Komisarjevsky and this case, therein Imaal i iting the benefits Mr. Komisarjevsky ‘was entitled to receive when the cases were severed for trial, See Quereia v, United States, 289 U,S, 466, 470 (1933) (“The influence of the trial judge da the jury is necessarily and properly of ‘great weight and his lightest word or intimation is Teceived with deference, and may Prove controlting.”) (citations omitted; internal quotation marks bmitted); United States v, Levy, 578 F.2d 896, 903 (2d Cir. 1978) (trial, Judge “must show stri impartiality” when ‘marshalling the evidence); State v. Hemandez, 218 Conn. 458, 462-463 pan 1991); State v, Fernandez, 198 Conn, 1, 12 (1985), | Judge Blue labeled the crime scene “a scene. of unimaginable. horror” and offered that Hayes's crimes were “more horrific than any that have compe before me in my long judicial career,” meaning there was “good reason” that Hayes was|"a man universally despised.” 11/24/10 Tr, 20; 12/2/10 Tr. 57. Judge Blue also offered ‘the jurors that they had “been exposed to images of depravity and horror that no human| being should ever have to view.” 11/8/10 Tr. 54. As reflected in Attomey Donovan's affida it, these inflammatory statements Proved irresistible grist for the media mill, appearing in both the New Haven Register and the Hartford Courant. Mr. Komisarjevsky's concem centers ou the fact that he too is “universally despised” (apparently in Judge Blue’s view for good “Tr that he has been implicated both in02/04/2011 17:18 FAX 203 503 6884 SUPERIOR COURT ozs the most horrific of crimes (though the undersigned’s dedades of collective experience suggests that this tagedy is sadly not overly distinguishable from the myriad tragedies found within our ctiminal justice system) and in the erime scene; and that the State intends to introduce those images (that so shock the conscience that humans shoullf hot even be made to view them) in its case against him. Judge Blue's distorted perspective sends the very fear message that mitigation has no meaning. Someone like Steven Hayes and, in tum, Joshua Komisarjevsky, should be reviled universally, that is, that consideration of individual charbete istics are immaterial when measured against the offense(s) of conviction. Not only does such al categorical rejection of mitigation raise constitutional concerns, see, e.g., Woodson v. North Carolina, 428 U.S, 280 (1976) (“the fundamental respect for humanity underlying the Eighth Amendment... requires consideration of the character and record of the individual offender”), it belies & judicial temperament inapt for a cases like that at bar. Additionally, Mr. KomisarjevakY 15 Blatigly unable to engage in meaningful voir dire with prospective jurors about Judge Blue's comments if Judge Blue is presiding over Voir dire in Mr. Komisarjevsky’s case. It is obviously imppriant to the defense to discover ‘whether a venire person has read or heard of Judge Blue’s description of the crime, the case and the defendant Hayes. Given the respect jurors pay to judges, and the weight which they attach to 8 judge's words, a juror who has leamed of JUAgE BIE’S Views will find it difficult to keep an open mind about this case. Conducting a voir dire on venise persons in order to ascertain their familiarity with Judge Blue’s comments is, however, whol} untenable, pitting Mr. Komisarjevsky against the Court before individuals who may ultimately deliberate on whether Mr. Komisarjevsky shall spend the rest of his life in prison br be executed by the State. Remarkably, the foregoing concems pale in comperjson to Judge Blue’s dumbfounding suggestion that jurors should find succor with the day’s evidence by hugging one another. Ina02/04/2011 17:18 FAX 203 503 6884 SUPERIOR COURT capital case involving charges of murder and sexual assai Boze ult, with graphic images of the victims, Jurors are sufficiently challenged to restrict their deliberations to facts and legal theories without emotional reinforcement from the bench, Yet, it is understandable that from Judge Blue’s Perspective the suggestion to hug was not problematic Heyause, as he later said, “here the emotions and the evidence are tied together.” The law holds otherwise. “[A]ppeals to emotions” are forbidden because they “invite() the jury to decide the| lcase, not according to a rational appraisal of the evidence, but on the basis of powerfull and irrelevant factors which are likely to skew that appraisal.” State v. Rizzo, 266 Conn. 171, 255 (2003); accord, State v. Bell, 283 Conn. 748, 773 (2007); State v. Ancona, 270 Conn. 568} 402 (2004), cert denied, 543 U.S. 1055 | (2005). ‘There is no doubt that a stern rebuke would havelajvaited any attomey who suggested jurors hug (and a request for a mistrial if uttered by the pk ‘unambiguous curative instruction regarding the wholesale Connecticut Criminal Jury Instructions § 2.4-1. Moreover! ecution), followed by an impropriety of such a suggestion. See it must be recognized that either Judge Blue perceived no problem telling jurors it was okay to hug or, upon further reflection, realized the problem but took no corrective measures on iF record, that is, nothing raised with the parties or the jury in open court, Neither option speaks well of Judge Blue's judgment or ‘temperament in a case of this narure. Judge Blue's deeply troubling, injudicious comments are evidence of his identification with the jury and the mob mentality that has surrounded this prosecution these last several years. As Judge Blue told one juror, “we're all under the public t “we live in a fishbow!”; and “we have all ... devoted so much of ourselves () for long a petigd of time.” 11/1/10 Tr. 10, 16. Separately, immediately after calling the jurors’ service “emotionally seating,” Judge BlueBoar 02/04/2011 17:18 FAX 203 503 6884 SUPERIOR COURT a offered: “This case has, obviously, been a curse and a biden for you and for me, and for all of I us” L1/8/Tr. $4, 58: Read objectively these comments show that in spite of Judge Blue’s catlier Profestations, on a very basic level this case was about him and the “drama” that unfolded in his courttoom. The record establishes that whatever objectivity Judge Blue brought to the Proveedings eroded the further the case went on, The opinions Judge Blue formed and the i mindset he took, as seen in only what he actually expresstd, display a level of bias that make a “air tial for Mr. Komisarjevsky impossible. See State v, Webb, 238 Conn, 389, 461-62 (1996) (citing Liteky v, United States, 510 U.S. $40 (1994). ‘There is evidence elsewhere that Judge Blue identified with the Pett and the Hawke families. First, Judge Blue apparently authorized that a equrtroom on the six floor ofthe courthouse be reserved for the victims? families duting the entirety of the evidence and penalty phases, an accommodation that, on information and beliéf] has never before been made in the” New Haven courthouse, Second, Judge Blue reserved ty rows of seating forthe families, And, three, Judge Blue, Mr. Komisarjevsky’s slated trial judas, uthorized jurors from the Hayes case ‘0 speak with William Petit notwithstanding that Petit is hr anticipated State witness in Mr. Komisarjevsky's case. Mr. Komisarjevsky notes that the jjzors then in turn spoke with the ‘media during a whirlwind tour of television talk shows tile day after sentencing Steven Hayes to death, describing, among other things, the personal impact pf their meeting with William Petit i and other family members. See Associated Press, Jurors higd photo: ‘ial, Middletown Press (Nov. 9, 2010) (‘Juror HerbeF Grain told ABC that he had a difficult ‘William Peti time holding back tears during Monday’s meeting with oF “Probably that was one of the most touching moments, to actually shake his hahd, and feel with him a feeling of having come to a conclusion, or come to a sensible end ta this horrible thing that he went02/04/2011 17:18 FAX 203 503 6884 SUPERIOR COURT |! through,” Gram sai ozs William Glaberson, Case Jurors Speak on Death Verdict, NY Times (Nov. 8, 2010) (“Ms, Keim said the meeting was emotional, with jurors ‘hugging members of the family, and Dr. Petit and members of the extended amily thanking the jurors for the grueling task they had undertaken.... Ms. Keim said sht would not forget something one of the girls’ grandmothers had said in the jurors’ meeting with, the family members. The elderly woman told the jurors, “We're so sorry we hed to put you through this."”), Aside from further disregard for Mr. Komisarjevsky’s fair tial rights, Judge BINS deeision to allow the jurors to speak with William Petit only added fuel to the media attention suxround; { necessitates a change of venue). ling the case (which further Lastly is the matter of passing out homemade cobkies. It is somewhat ironic that on the same morning Judge Blue said he wanted the jury to be businesslike” and chastised a juror for Passing a note toa Marshal ~ something Judge Blue called “just a God damm dumb thing to do” 1 ~ Judge Blue started the day off passing out cookies to members of the media —a media uniformly hostile to Joshua Komisarjevsky — and to thé ublic. 11/1/10 Tr. 9. The remarkable lack of judgment shown by such action in the midst of a capital case, during the Penalty phase no Jess, is breathtaking. To the extent that cookies were given to members of the Petit or Hawke families, or their supporters, a reasonable person could see it a a sign of favoritism, that i, agift for those supporting the State in its prosecutiorrof Steven Hayes. Notably, it was Judge Bhie who differentiated the Hayes case from other cases by saying that it was clearly not “a little automobile accident case that nobody cares about" — a comment that, standing alone, calls Judge Blue's temperament into question given (a) that the parties to most cases, even little automobile accidents, care about them and (b) courts should not devalue the importance of a case Lo29 02/04/2011 17:18 FAX 203 503 6884 SUPERIOR COURT i . i i i because it involves monetary damages, les serious consequences ot in the “fish bow!” context in which Judge Blue made the comment, less media attetion, Itis regrettable though telling for purposes ota ‘motion that, as Helen Ubitias broadcast, the reporters present (Le, the recipients of ladge Blue's gif), perceived a conflict where Judge Blue did not. The Judicial Branch’s Ad and P: | ‘Manual prohibits employees from knowingly giving, directly or indirectly, gifts in violation of Policy 603-Receipt of Gifts. Id, 1. In Pertinent part-that policy provides: tj ‘The Judicial Branch, which is responsible for the equitable administration of Justice, must be sensitive to practices that may bé ¢onstrued as encouraging fevoritism. The practice of accepting [and, prestimably, giving] of gift, regardless of innocent intentions, often leads to th perception that employees may be more favorably disposed and responsive to| those individuals who chow their appreciation ina tangible manner. Consequetly, the acceptance [and, Presumably, giving] of gifts must be prohibited except in clearly defined and justifiable situations. i 1d, The policy does not address the receipt or giving of gifts albeit food, in court in the midst of i | & (capital murder) trial. This is understandable, however, tovause, like jurors sending notes to I Judicial marshals, basic good judgment and common se sometimes make it unnecessary to expressly prohibit bald faced imprudence. filly and widely the Hayes defense team’s attempts to demonize him, as well as the numerous press conferences conducted by members ofthe Petit and Hawke families wherein the defendants were Inbeled “evil.” Judge Blue's passing out cf cookies othe pst was highly symbolic and surely would have been seen by those who se oft as a judicial approval of the ‘manner in which the press was reporting the Proceedings. Having been present during the Hayes | ‘Tal, we offer that part of Judge Blue’s motivation appears fo stem from a desire to ingratiate +imself with the media, In this regard, on several momnings|during the Hayes trial the 10oso 02/04/2011 17:18 FAX 203 503 6884 SUPERIOR COURT undersigned witnessed Judge Blue step into the courtrooin before the parties had arsived and share smiling words of no particular import with the astembled media to whom he had given front row seating or to explain tothe press the scheduling of certain proceedings and the reasons therefor (undoubtedly intended to head off Dr. Petits rélentless criticism conceming the pace of capital felony proceedings). i Regardless of any desire to be well regarded, however, the indefensible gifting to members of the media and the public ean only be seen to denigrate ‘what should be the most Solemn of judicial proceedings. There are thre lingering images ftom the Haves tial: the stoicism and dignity of the Petit/Hawke family, the uttet ordivariness of Steven Hayes, and the Sight ofa presiding judge distributing homemade cookies tothe media. Accordingly, Judge Blue is not suited to preside over Mr. Komisarjevsky’s trial. | | C. Judge Blue Has Prejudged Many of the Issues|to be Presented in the Case, Connecticut criminal practice disfavors strongly judges trying cases that they have pre- tried. See, eg, State v. Revelo, 256 Conn, 494, 508 n. 25] cert denied, 534 U.S. 1052 (2001), “ [T]he statutes and rules of practice evince a preference tt having a different judge reconsider previously decided questions, or questions similar to thoselpreviously decided.” State v. Canales, 281 Conn $72, 599 (2007) (citing, as examples Gs. §51-183¢ and PB, § 1-22); see State v. Webb, 238 Conn, 389, 461 (1996) (tisk of bias iictensed when subsequont proceeding is closer in time). And, though in the context of a trial, ndg's involvement in plea negotiations, the Supreme Court has cautioned about the dangers of ui pre-trial involvement. Safford v. I | ‘Wazden, 223 Conn. 180, 194 n. 16 (1992). Of relevance jo[Mr. Komisarjevsky presently, the | i Safford court recognized that one danger is “etal judge may become or appeer to become an advocate for his (or her] suggested resolution.” Id, u |02/04/2011 17:19 FAX 203 503 6884 SUPERIOR COURT fost i In addition to Judge Blue's partiality and temperdment, as addressed above, Mr. | Komisarjevsky’s concem in this regard is Judge Blue’ (hatural) inclination to protect the record in Haves by conforming rulings in Mz, Komisarjevksy’s base to those previously rendered notwithstanding that Mr. Komisarjevsky may ftame or ue issues differently. Simply put, if Judge Blue remains as the trial judge in this case, Mr. Koiaroaty does not start with the proverbial clean state in what is effectively a new trial aia of the State’s case in Haves. Cf. C.GS. § 51-183c, Moreover, evidence of Suge Be hr intellectual inflexibility is seen both in his unwillingness to consider steps other courts have taken (Le., “My mother didn't name ze ‘Other Judges") and in his hasty, unformulated denial of Mr, Komisatjevsky’s use of juror questionnaires (.«., without briefing or argument) due to 4 singular experience with such ‘questionnaires in the Peeler case that ‘tendered him “not seuet to the issue, As reflected in Mr. Komisarjevsky’s Motion Regarding Jury Selection Ne filed separately today, substantial authority supports the use of questionnaires i hfomplex cases, specifically in capital i cases, Just as Judge Blue directed, without a hearing, tte Hayes case would be broadcast via Twitter (se Motion Regarding Use of Electronic Devices nd Broadcasting filed seperately ‘oday), Judge Blue's entrenched opposition to questionnaires based on one experience and without regard to or apparent consideration of supporting authority establishes prejudgment antithetical to what is expected from the bench, ' | ‘The notion that judges, as human beings, may be predisposed to inflexibility, particularly sit pertains to protecting announced decisions, is recopied in the law. As our Supreme Court found in State v, Washington, 182 Conn. 419 (1980), it ispuman nature” that an individual who has expressed an opinion on a dispositive issue will be inci thereafier to be given to ‘information that strengthens or confirms the views already pprssed 1d, 426. | 1202/04/2011 17:19 FAX 203 503 6884 SUPERTOR COURT ose The human mind is constituted so that what one himself publicly declares touching any controversy is much more potent in biasing hhis judgment and confirming his prediléctions than similar | declarations which he may hear uttered by other persons. When ‘most men commit themselves publicly tolany fact, theory, or Judgment they are too apt to'stand by their own public declarations, in defiance of evidence. This pride of opinion and of consistency belongs to human nature, | Id, (citations omitted; intemal quotation marks omitted) (quoted in State v. Lopez, 235 Conn. 487, 499 (1995). This human falty has constitutional implications here, however. See Tumev. ¥. Ohio, 273 U.S. 510, 532 (1927) (“[elvery procedure .|. which might lead {the average man as a judge] not to bold the balance nice, clear fod te befon the State and the accused, denies the latter due process of law"); | The risks in this case are substantially higher teh the possible predeterminations of a juror(s), as was at issue in Washington. Although Tostua Komisarjevsky did not kil Jennifer Hawke Petit and did not intend the deaths of her two daughters, he played an acknowledged role in crimes that were “more horrific” than anyising nash [Blue has been in his career, meaning, in Judge Blue's estimation, it is proper that Mr. Komisarjeysky is “universally despised.” Thus, if allowed to remain in Mr. Komisarjevsky's case, Judge Blue will approach every decision operating under an inherent or subconscious bias while serving the competing aim of protecting | the record he made in Hayes so as to prevent, infer ate, subjecting anyone else to his and the Hayes jury’s shared “emotionally searing” burden. Mr, Komisarjevsky’s constitutional right to a fair trial corapels Judge Blue’s disqualification, This cage cannot be weighed down by Judge Blue’s “pride of opinion and consistency.” joss 02/04/2011 17:19 FAX 203 503 6884 SUPERIOR COURT D. Mr. Komisarjevsky is Disadvantaged Because by Judge Biue's Predilection For Off the Record Hearings. | ‘As matters stand, Mr. Komisarjevsky is set to begin trial at a considerable disadvantage to the State. Specifically, whereas in preparation for and/during the course of Hayes the State Patticipated ia numerous in chambers hearing’s and conferences with Judge Blue and Hayes's counsel, Mr. Komisarjevsky is almost entirely unaware! fof what ‘transpired because these hearings and conferences took place off the record and outside his presence. But see United States v, Amico, 486 F.3d 764, 778, 779 (2d Cir. 2007) “We imndetscore thatthe preferred way to Proceed in criminal cases is under the assumption that nothing is “off the record’.”); State v, Holbrook, 97 Conn.App. 490, 493-94 (2006). Said anot her way, the State is poised to start the ‘instant trial having insight into Judge Blue's thinking and decision making about the issues that i this case, which is identical in many respects to the State’s case in Hayes, presents. The State’s insight is a tactical advantage that violates Mr. Komisay sky's right to a fair trial, CoNcL.usion ‘it brings Mr. Komisarjevsky no pleat to Bie tis ‘motion and bring potential embarrassment to 4 member ofthe judiciary who has devoted his carer to public service. Judge Blue's apparent disinelination to recuse himself since thete ‘was first brought to his attention some six weeks ago leaves Mr. Komisarjevsky no choice, However, Just as the law recognizes ‘hat there are certain members of the community unsuited to sit as jurors in Me. Komisarjevsky's case, 80 too this is not the correct case for Judge! Blue. I As reflected above, the threshold for Aisqualifiarp 1 whether a judge's impartiality ‘might reasonably be questioned, That threshold is far excbelded here. In order to facilitate Mr. Komisarjevsky receiving a fair trial, one that will not be called into question at a later date, Judge Blue must be disqualified from presiding further/and a new judge assigned. i 1402/04/2011 17:19 FAX 203 503 6584 SUPERTOR Respectfully submitted, JOSHUA KOMISARIEVSKY, Defendant ’AN, JN 305346 Old Saybtook, CT 06475-4108 (860) 388-3750; Fax: (860) 388-3181 donolawy ‘New{ Haven, CT 06510 oss TIL, IN 407581 (203) 776-1900; Fax: (203) 773-1904 Bansley3@Bansleyl aw.com SBUSSERT, IN 420221 it 103 Whitney Avenue, Suite 4 i New Haven, CT 06510-1229 i (203) 495.9790; Fax: (203) 495-9795 i thussert@bussertlaw.com i Attorneys for Joshua Komiserjevsky | i is”a Goss 02/04/2011 17:19 FAX 203 503 6884 SUPERIOR COURT le | i CERTIFICATE OF SERVICE i Thereby certify that, in accordance with Connseticut Practice Book §§ 10-12, 10-13 and 10-14, a copy of the foregoing motion, affidavit, mem/randa and proposed order were served via hhend this 4th day of February 2011 on the following: | Michael Deatington, State's Attomey Gary W. Nicholson, Senior Assistant State's Attomey Office of the State's Attorney 235 Church Stiect | New Haven, CT 06510 | Todd Bussett Commissioner of the Superior Court