02/04/2011 17:04 FAX 203 503 6884 SUPERIOR COURT oor STATE OF CONNECTICUT DOCKET NO. CRO7-241860 : SUPERIOR COURT STATE OP CONNECTICUT, : JUDICIAL DISTRICT FOR NEW HAVEN v. : ATNEWHAVEN or SUPERIOR cou JOSHUA KOMISARJEVSKY. : FEBRUARY 4, 2011 FILED FEB 04 2011 DEFENDANT JOSHUA KOMISARJEVSKY’S MOTION : REGARDING RESERVED SEATING CHIEF CLERK'S OFFICE AND POINTS AND AUTHOR] IES IN SUPPORT THEREOF COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel | and pursuant to the Sixth, and Fourteenth Amendments to the Constitution of the United States, and Article I, 8 of the Connecticut Constitution, and respectfully moves that the Court reserve one row of seating for victims’ family members and their supporters and one row for Mr. Komisarjevsky’s family members and supporters. Mr. Komisarjevsky opposes the setting aside of courtroom seating for members of the media. In support of this request, Mr. Komisarjevsky states as follows: | 1, Among courts’ myriad duties is to control disruptive influences in the courtroom, “Due process requires that the accused receive a trial by an impartial jury free ftom outside influences... [T]rial courts must take strong measures to insure that the balance is never weighed against the accused. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966); accord United States v. Columbia Broadcasting System, Inc., 497 F.2d 102, 104 (Sth Cir. 1974) (“A heavy obligation rests on trial judges to effectuate the fair-trial guarantee of the Sixth Amendment.”), A defendant is entitled to “judicial serenity and calm.” Estes v, Texas, 381 U.S. 532, 536 (1965); see Irvin y, Dowd, 366 U.S. 717, 728 (1961) (“With [the defendant's] life at stake, it is not requiring too02/04/2011 17:05 FAX 203 503 6884 SUPERIOR COURT ooz much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion...”). 2 The instant motion is precipitated, in part, by the actions of the Court (Blue, J.) in the administration of co-defendant Steven Hayes’s trial: ‘The trial occurred in Courtroom 6A of the New Haven Judicial District courthouse located at 235 Church Street in New Haven. Courtroom 6A is the largest trial courtroom in the New Haven Judicial District. The spectator section consists of six rows of bench-type spectator seats on each side, separated by an aisle. The front row on each side is inside the bar and was reserved for legal and investigative personnel assisting the respective parties. The second and third rows on the prosecution’s side of the courtroom (the side nearest the jury box) were reserved for members of the victims’ families. The second and third rows on the defense side of the courtroom were reserved for members of the media, The remaining rows were not reserved and open to the public on a first-come, first-serve basis, State v. Haves, 2010 WL 5158256 *5 (Conn Super. Nov. 26, 2010) (emphasis added). For purposes of this motion, the following aspects of the Court’s accommodation in the Hayes case are notable. (@) “The defendant at no time objected to this arrangement.” Id. As addressed herein, Mr. Komisarjevsky does object to such an arrangement, (©) While “[s]pecial seating arrangements for the families of the victim and the defendant | are common in Connecticut practice,” id., special seating arrangements for the media | are not. Indeed, in the more than 60 years” collective experience of the undersigned ‘ead counsel, reserving the first two rows behind the well of the courtroom for members of the media is unprecedented. By affording the media special access, the | | | Court in Hayes enabled the self:perpetuating media fascination with this case, as ‘opposed to cases involving equally tragic events such as the trial occurred on the fifth floor of the New Haven Judicial District courthouse at the same time as the Haves02/04/2011 17:08 FAX 203 503 6884 SUPERTOR COURT oos trial. See Randal! Beach, ‘I forgive you": New Haven shooting victim’s mother: | killer she didn’t raise her son to hate: judge hands down 30-year sentence, NH Register (Dec. 22, 2010) (“Coward also expressed frustration that when Steven J. | ‘Hayes was on trial this fall for the Cheshire triple homicide and the media flocked to the courthouse, reporters ignored her son’s case in the same building. Although she said she feels very sorry for the Petit family, the victims of the Cheshire home invasion, ‘We have inner-city kids dying every day. We matter, too. My son is worth | something,” (©) On information and belief, aside from his brother's appearance during the penalty phase closing arguments, Steven Hayes’s family members did not attend his tral, at east regularly, therein negating the need to reserve seating for Hayes’s family or supporters. 3. Another notable aspect of the above decision is the Court’s response to Hayes’s post- trial invocation of Sheppard, supra: ‘The court in the present case carefully complied with Sheppard's directions. (1) The use of the courtroom by media representatives was carefully controlled, Media representatives were kept outside the bar at all times when the jury was Present, and their conduct was regulated by the court at all times, Because the trial involved a sexual offense charge, no broadcasting, televising, recording or photographing was permitted. P.B. § 1-11(b). The media was reminded of this - rule on the record prior to the commencement of the guilt-innocence phase of the trial... State v, Haves, 2010 WL 158256 *6. For one, the Court did permit the trial to be broadcast. ‘See Motion Regarding Electronic Devices (filed separately today), Furthermore, although kept outside the bar, the media was afforded the proverbial front row, therein serving as an ever present reminder to the jury of the intense public interest in this case (which the media has helped02/04/2011 17:05 FAX 203 503 6884 SUPERTOR COURT ooa ‘create and perpetuate to the foed news cycle beast). See Sheppard v, Maxwell, 384 U.S. at 358 (the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged”). Additionally, one reporter broadcast a video feed of the inside of the courthouse while awaiting entry one morning while another broadcast a photograph of a homemade cookie given out by the Court minutes after receiving it. Ex. A; see http://www-ustream tv/recorded/10415602#uten_campaign=unknownésutm_source= 104156028utm_medium=social (full video). On information and belief, the Court took no action on these violations of courthouse policy, including admonishing the offending reporters (at a minimum) or addressing the assembled media as a whole, 4. Mr, Komisarjevsky recognizes the public and the press's right of access. See, e.g, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982); P.B, § 42-49. Concurrently, “[iJn a widely publicized case, ‘the tight of the accused to trial by an impartial jury can be seriously threatened by the conduct of the news media prior to and during trial’.” United States v. Gumey, 558 F.2d 1202, 1209 (Sth Cir 1977) (quoting Report of the Committee on the Operation of the Jury System on the “Free Press- Fair Trial" issue, 45 F.R.D. 391, 394 (1968). Importantly, the media right of access does not entitle it to a reserved front row seat to these or other proceedings, particularly immediately behind the defendant and across from the victims* loved ones. (During the Hayes’s trial, media members afforded these premium seats were said to have gotten a “golden ticket”, Ex. B.). Rather, as they do routinely when covering court proceedings, members of the media are fully capable of queuing up and finding seats once the courtroom is opened to the public each day. During the Hayes trial, many media members who did not receive a “golden ticket”, ante, made sure to artive early each moming so as to ensure their ability to observe the proceedings.02/04/2011 17:05 FAX 203 803 6884 SUPERIOR COURT Boos Hartford Courant columnist Helen Ubines proved so adept at getting a spot that a fellow media member(s) awarded her a “st in line tiara” at the conclusion of the Hayes trial. Ex. C. Itis unclear how the Court distinguished which media members received preferential treatment and which did not (ie., who got a golden ticket and who was left to vie for the tiara). Regardless, that certain, select members of the media receive reserved seating unquestionably prevented ot interfered with other media members as well as the general public from attending the Hayes trial. Moreover, the media’s presence directly behind a defendant — especially where included within the block of media members are television reporters whose faces are readily recognizable — inarguably signals to the jury, incorrectly, that the case differs markedly from other ctiininal trials and/or has a heightened degree of importance and/or social consequence. This message to jurors is unfair to the defendant and deprives him of a fair trial. 5. Notwithstanding Mr. Komisarjevsky’s support for an open trial, he objects to reserved seating for or special preference given to the media, Among other things, requiring those media members who wish to attend the trial to comingle with the public at-large dilutes the prejudicial impact attendant to their sitting en masse (in the first rows of the courtroom). To the extent there might be a cognizable claim that the media will be denied access to the courtroom if treated like ordinary citizens, as in every other case, Mr. Komisarjevsky proposes the Court provide an overflow room (perhaps re-comissioning the courtroom provided to victims’ family and supporters) with a closed-circuit live feed. In this regard, Mr. Komisarjevsky notes that Judge Comerford in Stamford reportedly made such an accommodation in the recent capital trial of State v. Carlos Trujillo, Docket No. CR09-0167760-T (Conn. Super. Ct.). 6. Mr. Komisarjevsky further objects to more than one row of seating being reserved for the victims’ family and supporters. Again there is the issue of undue prejudice where the Court02/04/2011 17:08 FAX 203 503 6884 SUPERTOR COURT Boos facilitates the presence of a block of individuals who are adverse to a defendant, particularly in this case where family members have spoken out publicly and quite negatively about Mr. Komisarjevsky. The Court (Blue, J.) has recognized the strong likelihood that potential jurors will know something about this case — meaning they may well have seen media accounts that contained depictions of the victims’ family members and so may be able to identify them by sight even though the family member never is called as a witness, During the course of the Haves tial, one-half of the courtroom seating (the side nearest the jurors, the side behind the Prosecution) was occupied by the Petit/Hawke family and supporters. Their presence en masse created a strong and undeniable pressure upon the jury to do what those good people clearly ‘wanted itto do: to convict and sentence Steven Hayes to death. Allowing those seeking the death of Hayes to sit together as a group behind the prosecution, with the closest sitting about ten feet from the nearest juror, gave rise to another prosecutorial force in the Hayes courtroom —a veritable Petit posse quietly and determinedly indicating its support for the death of Steven Hayes. While we do not suggest that the courtroom be closed to anyone, we also suggest that the | seating of Petit/Hawke supporters, of spectators and of media randomly throughout the I courtroom (i, first come, first serve) will lessen the undeniable influence that the sight of the stoic but determined Petit supporters exerted upon the Hayes jury. In short, the reservation of ‘more than one row of seating creates a partisan atmosphere that exposes the jury to a skewed cross section, thereby creating an unfair representation that deprives the defendant ofa fie tral 7. Mr. Komisarjevsky requests that the Court reserve the front row of seating immediately behind the defense for members of his family as well as longtime family friends from Cheshire and surrounding communities who we anticipate will attend court to witness the proceedings and to provide moral support as the State attempts to Kill him,02/04/2011 17:05 FAX 203 503 6884 SUPERIOR COURT foo7 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, Mr. Komisarjevsky respectfully requests that this motion be granted, specifically that ‘no more than one row of seating be served for victims’ family members and supporters and for the Komisarjevsky family members and supporters, respectively, and that no seating be reserved for the media, Respectfully submitted, JOSHUA KOMISARJEVSKY, Defendant ‘New Haven, CT 06510 (860) 388-3750; Fax: (860) 388-3181 (203) 776-1900; Fax: (203) 773-1904 donolaw@sbeglobal.net Bansley3@BansleyLaw.com = = Qn the Motion TODD A. BUSSERT, 1221 Daria Berkowska, Certified Legal Intern 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495.9795 tbussert@bussertlaw.com Attomeys for Joshua Komisarjevsky ORDER ‘The foregoing Motion having been considered, it is hereby Ordered: GRANTED / DENIED THE COURT By; |02/04/2011 17:08 FAX 203 503 6884 SUPERIOR COURT ‘oos Todd Bussert ‘Twitter / NotesFromHeL, Monday, October 25, 2010 8:17 AM Twitter /'NotesFromHeL, NotesFromHeL: Ive just uploaded a video. Please watch it now! htp‘//ustre.am/:HHzA Full article tink: http:/Awitter. com/NotesFromHel /statuses/28684872044 NotesFromHeL: I've just uploaded a video. Please watch it now! htto-//ustre.am/:HHizA, View article./04/2011 17:06 FAX 203 503 6884 SUPERIOR COURT Boos Login| Sign Up. Broadeast cow sven Poe NotesFromHeL | ‘corer 26,2010 om croms tn 66 recoedwitmyAtosuanie bas ents [ ia aa TRS | Sep uni. [TeipTiwww ustream brecarded | Copy Ee cee «= Google Wonton Fg sheen 0 ratwort | | Let Googie Search help you j find the best results! Moro from This Show + Langors call sentence eth aioe comment re viet Sarbanes Tet ws: 70 angi 7 Dofonto attorneys spoak i about future appeal, ! ‘oss ines! Leng: 80:27 ‘Witiam Petit Sr. leaves ‘court “eta Views 46 Length: 00 Recommended Videos +02/04/2011 17:06 FAX 203 503 6854 SUPERIOR COURT Todd Bussert RSS Feed: Twitter / GeorgeColl Posted on: Monday, November 01, 2010 8:43 AM Author: Twitter / GeorgeColi Subject: GeorgeColl: Judge Blue's cookies #hayes hitp/twitple.com/32xp68 Full article link: http:/Awitter.com/GeorgeColl/stetuses/29368113268 GeorgeColli: Judge Blue's cookies #hayes htto://twitpic.com/32xp66 View article Goro02/04/2011 17:06 FAX 203 503 6884 SUPERIOR COURT Bor bwitpic Lr Posted on November 1, 2010 by GeorgeColtl toes ee ee eer eem Eben More photos by GeorgeColli GB swewierroe Login to leave a comment, @ reese pret onyourwtane Viows 128, events tage L220 tpl te, 28h Resend Home Searah Fa Contact API Terma Pavcy02/04/2011 17:06 FAX 203 503 6864 SUPERIOR COURT orz Todd Bussort ‘Twitter / NotesFromHelL. Tuesday, September 28, 2010 2:00 PM ‘Twitter / NotesFromHeL. | NotesFromHeL: Reporter says her golden ticket is well earned, Head just explodea.#Hayes Full articte tink; http://twitter.com/NotesF romHeL/statuses/26806021041 | NotesFromHeL: Reporter says her golden ticket is well earned. Head just exploded.#Hayes | View artic!02/04/2011 17:06 FAK 203 503 6884 SUPERTOR COURT Bos Todd Bus: ee RSS Feed: Twitter / NotesFromHel Posted on; Tuesday, October 05, 2010 8:18 AM Author ‘Twitter / NotesFromHel, NotesFrombel.: Credentialed reporters get their golden tickets for priority seating inside courtroom #Hayes: hitp:/twitter.com/NotesFromHel/statuses/26450812504 NotesFromHel: Credentialed reporters get their golden tickets for priority seating inside courtroom.#Hayes View artick02/04/2011 17:06 FAX 203 503 6884 SUPERIOR COURT ous Todd Bussert ‘Twitter / NotesFromHet. Wednesday, October 20, 2010 8:03 AM Twitter / NotesFromHel NotesFromHeL: About a dozen reporters outside courtroom 6A. Looks like welll have all types of room in there. Maybe | can score a golden ticket? # Hayes Full article link: hhttpu/twitter.com/NotesFromHel /statuses/27824237116 NotesFromHel: About a dozen reporters outside courtroom 6A, Looks like we'll have all types of room in there. Maybe | can score a golden ticket? # Hayes jew article.02/04/2011 17:06 FAX 203 503 6884 SUPERIOR COURT mois Todd Bussert Twitter / NotesFromHel. Tuesday, October 26, 2010 8:04 AM Twitter / NotesFromHeL, NotesFrombel.: Reporters applaud NYT guy getting #1 golden ticket, Wnere are my ‘applause fer record-holding first place tiara damnit? Full article tink: httpuftwitter.com/NotesFromHel /statuses/28783501077 | NotestromHeL: Reporters applaud NYT guy getting #1 golden ticket. Where are my applause for record- holding first place tiara damnit? View artic02/04/2011 17:06 FAX 203 503 6aa4 SUPERIOR COURT Bore Todd Bussert ‘Twitter / NotesFromHel ‘Thursday, December 02, 2010 6:57 AM Twitter / NotesFromHel NotesFromHeL: OMG! | finally got my first in ine tiara, And it was made by hand by my ‘Twitter sister @rachelrguerra, http:/Awitpic. com/Se5urnd Full article fink: http: /twitter.com/NotesFromHel /statuses/103013 10343588782 NotesFromHel: OMG! | finally got my first in line tlara, And it was made by hand by my Twitter sister @rachelrguerra. http://twitpic.com/3cSum402/04/2011 17:06 FAX 203 503 6884 SUPERIOR COURT bwibpic e201 Tape ARG Resor Login to leave a comment four Glick here to login or craate an account » Posted on December 2, 2010 by NotesFromHel. Let Google Search help you find the best results! More photos by NotesFromHel G ohare ni oto Greenspan yeurwenae Viows 105, Events Tags Homeland ‘Security ® sssional Fhe el es foe, Home Search Faq Contact APL Terma Privacy02/04/2011 17:07 FAX 203 503 6884 SUPERIOR COURT ois CERTIFICA’ EB 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 Offfice of the State's Attorney 235 Church Street New Haven, CT 06510 Todd Bussert ‘Commissioner of the Superior Court