Oct
23

Komisarjevsky: Human, All Too Human

I am sick to death of the Cheshire home invasion cases. They linger, like a nightmare that will not go away. If there is a reason for good cheer, it is that this final trial, the penalty phase in the case of Joshua Komisarjevsky, is now upon us. It is fitting in a gruesome sort of way that the trial begins as we celebrate Halloween. Evil entertains us, after all. The Cheshire trials have been paradoxical through and through: We claim to be shocked and horrified by the crime. Yet we cannot get enough of it. Hence, the breathless twittering in the courtroom by the press corp, and the press of photographers at the courthouse door. Deliver us from evil, we say, but not too quickly.


It simply feels too good to hate this much. 


So comes now the defense team, led by Jeremiah Donovan, walking steadfast into the valley of the shadow of death. State’s Attorney Michael Dearington plays the grim reaper in this farce. Justice demands a killing, he intones.


I debated a college professor the other day on the utility of the death penalty. He claims statistical studies show that the penalty saves lives. Why for every person we execute, some statistically identifiable number of people are not murdered. The studies remind me that anything can be done with statistics.


The United States is almost alone among the industrial, or is that now post-industrial world?, in putting citizens to death. Yet we have the highest rate of incarceration of any nation on Earth. Somehow all this state-sponsored killing isn’t getting the word out. We are five percent of the world’s population, but yet 25 percent of all those imprisoned are here, in the land of the free. One could argue that the death penalty, far from deterring, actually inspires criminality. I will leave that argument to the professors.


What to expect in this the final act?


The defense has managed to keep its witness list a secret thus far. That is because of fear that those who speak on behalf of Komisarjevsky would be harassed and intimidated by the professional haters among us. A few of these moral executioners have darkened my inbox: One vicious little fool wishes rectal cancer on me. I content myself with his fetid prose until my cells fail, and remind myself of the gratuitous joy of hatred. Does the writer of such hopes sit in a church pew on a Sunday, imagining how the pleasures of the redeemed will be intensified in Heaven by the ability to behold the suffering of the damned? Probably. Jesus wept over more than the faithless response to the death of Lazarus.


Jurors will now sit ringside at the very act of creation. They will judge whether one among us shall live or die. The defense strategy should be simple: Show the jury how one us of us could wander so far off the reservation of accepted behavior as to become a killer. It is too easy to call Komisarjevsky “evil,” as though the term connoted some reality brought to us by others, some reality we can banish by killing the bearer of evil. The reality is that nothing human is foreign to any of us. No one is the sum of his worst moments. There is a little bit of Komisarjevsky in us all: I look at those raging for his death, claiming that an eye for an eye is just, and I see a killer at work, not an “evil” man, mind you, just someone a little too self-indulgent to put aside savage aggression in the name of civilization. No one is owed a death in this case.


We will learn more about Komisarjevsky than we can possibly want to know. Every school record, every doctor’s note, every letter written by the killer, has been located, read and woven into a narrative about a life derailed and consumed by silent rage, a life that erupted in paradise, an upper middle-class bedroom community in the oh-so-white world of Cheshire. The defense will seek neither to justify nor excuse Komisarjevsky’s crimes. The bold stroke here will be simply to explain what made these crimes possible. If it can do that, a jury might spare the killer.


Expect as a surprise witness author Brain MacDonald. The author of In the Middle of the Night scored a journalistic coup years ago, finagling access to Komisarjevsky and writing a book about the case and the killer. MacDonald is the author of a blog page as well. He went silent about this case the very day jury selection began. I suspect that is because his name was on the witness list circulated among jurors. He was told, I am sure, that there is a sequestration order. He chose not to write about a case in which he might just be called upon to testify.


I’d like to see MacDonald on the stand. I read his book the night it was released. I wanted to know what made Komisarjevsky tick. How could one of us commit these crimes? When I put the book down, an image of the killer stuck in my mind. I have not been able to erase it since: He turned to the forest when he was troubled as a child, finding peace in the solitude of sheltering boughs. This image resonated with me. It is the sort of image that can save a man’s life.


I would be surprised if Komisarjevsky chose not to testify in this case. He has nothing to lose. Some say he should not testify. He is a punching bag, an easy target for the state. Perhaps that is so. But if he chooses not to testify, the case remains too easy for the state. It is easy to condemn an idea, in this case, the notion of “evil.” The defense needs this jury to understand that no matter how great his crimes, Komisarjevsky is still human, all too human.


The penalty phase of this trial will last longer than the guilt phase. Expect the testimony of psychiatrists, social workers, medical doctors, family, teachers, friends. Joshua Komisarjevsky is at Hell’s gate on judgment day. Can the defense overcome the hatred the facts of this case inspire?


I have my doubts that anything will save this young man’s life. Few want to own the look and feel of their own homicidal rage. It is far easier to condemn this man to death as evil, all the while ignoring the evil that makes us long for his death. I am looking forward to this trial not so much as a stage on which justice will be served. No, the real drama here is the moral drama. Can the defense penetrate the hypocrisy that fuels the homicidal rage to kill Joshua Komisarjevsky, thus transforming us into arm chair cousins of a killer?


I am betting it cannot. It simply feels to good to hate. And when a mob of haters gathers, its bloodlust is too often consummated only with fresh blood.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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