State v. Joshua Komisarjevsky.

Decision Date23 August 2011
Docket NumberNo. 18797.,18797.
Citation302 Conn. 162,25 A.3d 613
PartiesSTATE of Connecticutv.Joshua KOMISARJEVSKY.
CourtConnecticut Supreme Court

OPINION TEXT STARTS HERE

Jeremiah Donovan, special public defender, with whom were Todd A. Bussert and Walter C. Bansley III, special public defenders, for the appellant (defendant).Harry Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Gary Nicholson, senior assistant state's attorney, for the appellee (state).William S. Fish, Jr., with whom, on the brief, were Michael C. Sorensen and Amy E. Markim, Hartford, for the appellees (intervenor the Hartford Courant Company et al.).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.HARPER, J.

The defendant, Joshua Komisarjevsky, appeals from the Appellate Court's judgment dismissing, for lack of a final judgment, his appeal from the trial court's decision granting the motion of the intervenors, the Hartford Courant Company (Courant) and one of its reporters, Alaine Griffin, to vacate an order sealing the defendant's “witness list.” 1 This court had granted the defendant's petition for certification to appeal limited to the issues of whether “the trial court's decision to grant [the intervenors'] motion to unseal a ‘witness list’ constitute[s] a final judgment permitting interlocutory review,” and [i]f the decision is an appealable final judgment, [whether] the trial court improperly grant[ed] the [intervenors'] motion to unseal the ‘witness list?’ State v. Komisarjevsky, 301 Conn. 920, 21 A.3d 465 (2011). At oral argument before this court, Chief Justice Rogers raised the issue of whether the defendant's appeal could be treated as a direct public interest appeal pursuant to General Statutes § 52–265a, 2 which permits this court to consider an interlocutory appeal from the trial court. See Foley v. State Elections Enforcement Commission, 297 Conn. 764, 767 n. 2, 2 A.3d 823 (2010); State v. Fernando A., 294 Conn. 1, 5 n. 3, 981 A.2d 427 (2009); State v. Kemah, 289 Conn. 411, 414 n. 2, 957 A.2d 852 (2008). Following oral argument, this court ordered the parties to file supplemental briefs addressing the questions of whether this court has the authority to treat the certified appeal as a public interest appeal and, if so, whether the Chief Justice should certify the appeal on that basis in the present case. We have concluded that the appeal should be treated as a late petition for certification to appeal under § 52–265a, and the Chief Justice has certified the appeal on that basis.3 See State v. Ayala, 222 Conn. 331, 342, 610 A.2d 1162 (1992) (treating defendant's petition for certification under General Statutes § 51–197f as late petition for certification under § 52–265a). Therefore, we do not determine whether the Appellate Court properly concluded that the trial court's decision vacating the sealing order was not a final judgment.

With respect to the merits of the trial court's decision, we conclude that the trial court improperly determined that the defendant had not sufficiently demonstrated that the disclosure of the witness list could impair his rights to a fair trial and to prepare a defense. We further conclude that the defendant demonstrated that the potential abridgement of these rights clearly outweighs the right of the intervenors and the public to access this document. Accordingly, we reverse the trial court's order granting the intervenors' motion to vacate the sealing order.

The record reveals the following undisputed facts and procedural history. The defendant has been charged with, inter alia, six counts of capital felony in connection with a triple murder, sexual assault, and arson in a residential neighborhood in Cheshire. In a separate trial, his codefendant, Steven Hayes, has been found guilty of numerous offenses for his part in the crimes and has been sentenced to death.

On March 16, 2011, jury selection in the defendant's case commenced. 4 In accordance with standard practice, prior to jury selection, the trial court directed the parties to submit a list of potential witnesses and persons associated with the prosecution or defense. See Practice Book § 42–11 ([t]he judicial authority shall require counsel to make a preliminary statement as to the names of other counsel with whom he or she is affiliated and other relevant facts, and shall require counsel to disclose the names, and if ordered by the judicial authority, the addresses of all witnesses counsel intends to call at trial”). The defendant e-mailed his list, containing well over 100 names, to the trial court's clerk. In light of the number of names on the parties' lists, the trial court decided to disseminate the lists to potential jurors for their review, rather than adhering to the court's usual practice of reading aloud the names to a venire panel.

On March 16, 2011, the trial court informed the parties that it had received a request from the media for witness lists and raised the question of whether the lists should be sealed temporarily pending the trial. The prosecutor stated that it would defer to the court on the matter. Defense counsel objected, stating that the witness lists in Hayes' trial had not been disclosed to the public. When defense counsel attempted to explain his more fundamental concern that the media attention given to the case had caused difficulties with witnesses, the trial court interrupted counsel, stated that it understood and that it did not need further argument at that time. The court noted: [Defense counsel's] point is at least initially persuasive that there's some reason to believe that ... potential witnesses might receive unwelcome attention that might discourage their willingness to testify in court.” The court ordered the witness lists sealed without prejudice, subject to reconsideration should a media organization file a motion to unseal the lists.

On March 22, 2011, the intervenors filed a motion to vacate the sealing order. They contended that the defendant had not followed the requisite procedure or met the requisite burden of proof to overcome the presumptive first amendment and common-law rights of the intervenors and the public to have access to the lists. The intervenors asserted that it defied logic to limit “the public's access to a document that contained information that will inevitably and shortly become public information....” The trial court ordered any party objecting to the motion to submit a list of specific names on their witness list to which further sealing was claimed to be warranted, along with appropriate affidavits, by April 1. The defendant did not submit such a list,5 but filed a memorandum in opposition to the motion and a supporting affidavit from Jeremiah Donovan, his lead defense counsel.

In his opposition, the defendant claimed that disclosure of his witness list would have a chilling effect on potential witnesses in violation of his sixth amendment right to a fair trial, and that this right trumped any presumptive right of the press and the public to access the list. As a threshold matter, the defendant claimed that the witness list was not a judicial document to which the presumption of public access applied. He further claimed that, if the witness list is a judicial document, its continued sealing is justified because of the substantial probability that, if disclosed, his right to a fair trial would be prejudiced and because no other measure would prevent that harm.

In support of his main contention, the defendant cited the “unprecedented media maelstrom” in which he had been thrust. He claimed that numerous penalty phase witnesses had resisted speaking with the defense team for fear of what might happen should they be associated publicly with the defendant. The defendant further asserted: “The public record offers several ready examples of the insidious and pervasive animus directed at [the defendant] and anyone close to or even perceived to be affiliated with him or ... Hayes, and confirms the fears and concerns expressed by potential defense witnesses.” The defendant pointed to, inter alia, two Courant articles written by Griffin reporting on the harassment suffered by one of Hayes' former employers, who had been compelled by subpoena to testify at the penalty phase of his trial. One of those articles reported: “After her testimony, [the witness] received harassing phone calls and e-mails and was criticized on the Internet. People also called for a boycott of her restaurant. The threats became so frightening that she called the police.” A. Griffin, “Defense: Witnesses Wary Of Testifying,” Hartford Courant, March 3, 2011, B1.

In Donovan's affidavit, he underscored the effect that disclosure would have on defense counsel's ability to prepare a mitigation defense for the penalty phase of the trial. He pointed to counsel's obligation to conduct an exhaustive investigation of the defendant's history, which the defense was attempting to undertake by interviewing anyone who had interacted with the defendant in a substantive way. Donovan identified twelve persons or groups, by generic descriptions, who had expressed fear of the consequences should they cooperate with the defense, including reprisals ranging from “community backlash and mistreatment” to “harassment and danger....” 6 Donovan attested that members of the defense team themselves had suffered a backlash from family, friends and the public because of their involvement in the case. He also noted threats received by the defendant's family that had resulted not only in their having to relocate from their longtime home, but also in their loss of custody of the defendant's daughter.

With respect to the contents of the witness list, Donovan attested that the defense team was certain that it would not call all of the persons listed to testify, and that it was likely that many of the names on the list would...

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12 cases
  • State v. Santiago
    • United States
    • Connecticut Supreme Court
    • 25 d2 Agosto d2 2015
    ...(last visited August 10, 2015). In State v. Komisarjevsky, 302 Conn. 162, 179-80, 25 A.3d 613 (2011), this court acknowledged the notoriety of the cases against the two defendants, which aroused such public antipathy as to result in threats against both defense counsel and intimidation of w......
  • Feehan v. Marcone
    • United States
    • Connecticut Supreme Court
    • 30 d3 Janeiro d3 2019
    ...jurisdiction because § 52-265a"permits this court to consider an interlocutory appeal from the trial court." State v. Komisarjevsky , 302 Conn. 162, 165, 25 A.3d 613 (2011) ; see also footnote 7 of this opinion.4 General Statutes § 9-328 provides in relevant part: "Any elector or candidate ......
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    • United States
    • Connecticut Supreme Court
    • 30 d3 Janeiro d3 2019
    ...jurisdiction because § 52-265a "permits this court to consider an interlocutory appeal from the trial court." State v. Komisarjevsky, 302 Conn. 162, 165, 25 A.3d 613 (2011); see also footnote 7 of this opinion. 4. General Statutes § 9-328 provides in relevant part: "Any elector or candidate......
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