Do You Have Your First Amendment License?
Just where do I apply for my First Amendment license? It turns out you need one in Connecticut if you want to get a complete view of the evidence in the Joshua Komisarjevsky case.
Connecticut prosecutors hope to persuade a jury of twelve that Komisarjevsky should be put to death for his role in the murder of Dr. William Petit, Jr’s wife and two daughters in a home invasion in Cheshire in 2007. The jury has already found Komisarjevsky guilty on all counts. For the past month, they’ve been sitting through a painstaking penalty phase. The defense, led by Jeremiah Donovan, has spared no effort, and no expense, to provide as a complete a picture as possible about what makes Komisarjevsky tick. The hope is that something, anything, will stick to at least one juror, and that the juggernaut of death will be stopped.
So the defense intends to call as a witness Komisarjesky’s nine-year-old daughter. The state, of course, objected. After a series of hearings and arguments, Superior Court Judge Jon C. Blue announced his ruling: The girl can testify, but she will do so by way of videotape. Her name will be kept confidential, and the screen displaying the image of the girl will be tilted away from the audience, permitting only the juror and the participants at trial to see the screen. While spectators will be able to hear her voice, only "credentialed journalists" will be allowed to see her image, presumably after evidence has concluded at a private screening.
This is the first instance I can recall in which the First Amendment right of all to attend and watch a court proceeding has been clipped in this manner. Ordinarily, the courts are open to all. No license is typically necessary to exercise the right to watch the government seek a conviction.
I was prepared to rain all manner of scorn down on Judge Blue for this decision. The girl’s name was, after all, widely reported in the press in 2007, when the shock of the gruesome Cheshire killings was still fresh. Folks marveled that Komisarjevsky had been granted custody of his daughter. And the trauma of appearing in court as a witness in which the state makes every lawful effort to transform a child into an orphan by killing her father is minimized by permitting her to testify out of court, with only a videotape shown in open court.
What justifies this particular version of peek-a-boo justice, replete with special privileges for credentialed journalists?
Apparently, Joshua Komisarjevsky’s daughter is the target of death threats. Requiring her identify to be flashed to the world at large could put her at physical risk of harm. In other words, there are people in the world at large that believe she should die because her father has been convicted of murder. At least that is the claim.
I find this hard to believe, frankly. Whatever animus and hatred the world may have for Joshua Komisarjevsky, I fail to see why anyone would want his daughter to come to harm. Is the thinking that since Komisarjevsky killed children, we should kill his child? Is this the primitive drumbeat animating the knuckle-dragging cowards who undoubtedly call for violence, but under cloak of anonymity, lest anyone require them to put their hate-filled fannies in the general vicinity of their mouths?
Apparently, this girl has already had a legal change of name, the better to cloak her against the threats of strangers. By refusing to permit the world at large to see her image, Judge Blue apparently hopes to assure her safety. After all, the judge must reason, those threatening to kill her might come to court to get a glimpse of their target.
So we end up with a bizarre and unsatisfying balancing test. The judge permits the testimony, but takes steps to protect the child against the anonymous and incredible threat of harm. Let her speak, but no one must see her, unless they have a license to do so.
It troubles me to see the public’s right of access to the courts held hostages by some anonymous nut-case spewing hatred. Judge Blue drew a dangerous line in this case. The public has a right to know what goes on in this case but only so long as those licensed to view the evidence tell them about it? Forgive me if I’d rather see for myself. I respect a vigorous press, but when the press is given access to information the rest of us cannot see, the gift comes with invisible strings.
If Judge Blue believes there is credible evidence of potential harm to this witness, then he should permit only jurors and participants in the trial to view the videotape. This business of permitting only those with valid press cards to have full access to public proceedings is offensive. Yes, protect the girl if there is a truly a threat. But let’s not sell the First Amendment to any creep spouting by banging his keyboard and spewing venom.