Oct
20

Thus Spake Komisarjevsky?

"The testimony in this case reveals a crime of singular atrocity. It is, in a sense, inexplicable; but it is not thereby rendered less inhuman or repulsive. It was deliberately planned and prepared for during a considerable period of time. It was executed with every feature of callousness and cruelty." These are words spoken not in reference to the crimes committed by Steven Hayes, the man convicted for his role in the invasion of the Petit home in 2007; the words are now nearly a century old and were uttered by Judge John R. Caverly in Chicago in 1923. This is the judge who sentenced Nathan Leopold, Jr. and Richard Loeb to life without possibility of parole for the kidnap and murder of 14-year-old Bobby Franks. The boy was murdered as part of a bizarre moral experiment. Could Leopold and Loeb prove their moral superiority by committing the perfect crime? The young killers were drunk on the words of Friedrich Nietzsche, a nineteenth century linguist and philosopher who wrote of slave morality, supermen and the overcoming of the self by steely eyed men of moral and spiritual valor.

Leopold and Loeb, the two killers, were accused of committing the crime of the century in that less jaded era. They were just the sort of playmates with whom Joshua Komisarjevsky would have enjoyed matching wits.  Indeed, I foresee a new book, with a mock Nitezschean title: "Thus Spake Komisarjevsky." The 30-year-old man-child imagines himself some sort of Nietzschean superman. His words could well cost him his life. How long until his prison diaries are reprinted and sold for profit in this the age in which it is never too shocking to tell all? 

Yesterday was, even by the jaded standards of those who daily troll the corridors of sorrow in courts, a shocker. Lawyers for Mr. Hayes, who has been convicted of some sixteen crimes for his role in the mayhem, are now facing a jury that must decide whether Mr. Hayes lives or dies. His lawyers offered into evidence the prison journal of his co-defendant, who faces trial next year. For hours a stunned courtroom sat and listened as Komisarjevsky's words were read in open court. One press account reports that a slack-jawed prosecution looked on in shock as the defense offered this recitation. 

"The relative culpability, relative evil of the two participants of the crime is a central matter for the jury to consider," Judge John C. Blue ruled, after an objection was tendered.

So jurors heard Komisarjevsky taunt Dr. Petit, the sole survivor of the massacre, for cowardice because the man left his family to die. We learned of Mr. Komisarjevsky's "tast[ing] the fear" of an 11-year-girl as he masturbated onto her body. A lifelong burglar shared the tricks and rewards of his trade: preparation is everything. "[M]y life is defined by risk," he said. He was, and perhaps remains, preoccupied with Russian roulette: "This time, I pulled the trigger and the chamber was loaded." This silent stalker knows "[a]ll the rituals of white folks of suburbia." He watches with a silent sort of power as he prepares his next crime: "I am already in the house, waiting, watching their movement in my mind's eye."

Let's not mince words: Komisarjevsky enjoyed the hunt, the conquest and the killing. His only regret seems to be that he will not be given another chance to savor fresh chaos. So why not die? He refers to the prospect of his execution as a "state sanctioned murder of mercy." Narcissus seeks a needle?

"All that was lacking in the courtroom yesterday was a soundtrack. I read these words and I heard of the Rolling Stone's "Sympathy for the Devil": Can you hear Satan chortling over his presence at the century's great atrocities? "Pleased to meet you; guess you know my name ..." This is Hannibal Lechter minus a medical degree. I did not think there was moral energy left to drain in this case. I was wrong. 

When Darrow defende d Leopold and Loeb in the 1920s he had the good sense to avoid a jury. The City of Chicago was screaming for the blood of these two wealthy and senseless killers. Darrow stunned observers by having them plead guilty. He then transformed their sentencing into a lengthy evidentiary hearing at which he put on psychiatric evidence and argued passionately against the morality of the death penalty. That he persuaded Judge Caverly to spare the life of the two young killers remains one of the century's most impressive legal feats, and justifies an assessment of Darrow as one of the century's greatest lawyers.

Mr. Hayes' lawyer, Thomas Ullman, could have chosen a court trial for the penalty phase: Darrow's playbook is a matter of public record. He could have given in to Mr. Hayes' desire to plead guilty and moved, as Darrow did, directly into the disciplined fact-finding sort of trial a three-judge panel might have conducted. Instead, Mr. Ullman chose to play the wildest card of all, the jury card, a forum where passion, prejudice and emotion is played upon by the striking of silent keys. It is a gamble Darrow lacked the courage, or was it the wisdom?, to play in the Leopold and Loeb case.

I am struck by the apparent senselessness of a defense strategy based on asking the jury to compare the relative evil of the two men. Does Mr. Ullmann, a man I admire and consider a friend, think a jury can be fooled into regarding the death penalty as some sort of prize, with but one winner, that being the most evil person of all? A jury could well conclude that among the gradations of evil there is a class of folks warranting death, and, while Mr. Komisarjevsky may be at the head of the class, Mr. Hayes remains an honor student. This variant on the Nuremberg defense is not persuasive. 

Setting the evil genius of Joshua Komisarjevsky loose in the Hayes trial is playing with Hell-fire. Yes, this 30-year-old killer can stalk the courtroom and mock a man he tried to beat to death for cowardice. He can gloat over the sense of power he had as he masturbated onto the body of a child he tied to her bed. He can revel in a life of crime and the thrill of random victimization. Burn, family, burn, he can chortle, as he warms his hands by the fire. Joshua Komisarjevsky can prance, preen and strut his stuff and send a chill down every spine. Let the Devil loose for a walk in a New Haven courtroom and there's still this to consider: Mr. Hayes chose to summon this beast. This subtle effort to make Mr. Hayes into a victim is destined to be a dismal failure. Evil is as evil does.

Mr. Ullman is attempting to do something even Clarence Darrow would not have dared to do: Ask a jury to forgive, or at least understand, the temptation of great evil. Leopold and Loeb, two young men of admitted genius and great wealth, were deemed moral failures and spiritual cripples. Their thrill kill was a too literal interpretation of the sublime words of a philosopher easily misunderstood in the dying days of Victorian sensibilities. Stephen Hayes and Joshua Komisarjevsky appear to be their semi-literate cousins. Mr. Komisarjevsky killed for the thrill of it all; Mr. Hayes did what? Went along for the ride? Please don't tell me this 47-year-old man was kidnapped, seduced or otherwise beguiled by Mr. Komisarjevsky. That strains all c redulity.

I abhor the death penalty. It is savage and has no place in our society. I am an abolitionist through and through. Hence, I stand with Mr. Ullman in the fight to save Mr. Hayes. But I must concede that the following thought has crossed my mind more than once: If we are to have a death penalty, this is the case in which it could be imposed.

Yesterday's testimony and the words of Joshua Komisarjevsky inspired me to utter these misgivings aloud. If Mr. Ullman has some secret strategy to turn the words of Mr. Komisarjevsky into a defense for his client, he ought to unveil it today.

I saw Satan on the stand yesterday, and what I heard did not show me a new and more human side of Mr. Hayes. Indeed, to the contrary: I understand Nietzsche and the will to power all too well. I suspect Mr. Komisarjevsky was not alone in the silent glory of this slaughter. He had a playmate as a mother and daughter were terrorized, raped and set afire. Mr. Hayes could have stopped Mr. Komisarjevsky; he could have left the house; he could have called for help. But he didn't. He played the game step by step, matching the Devil evil for evil.

If Mr. Ullmann thinks blaming Mr. Komisarjevsky is a defense, I fear that may mean there is nothing better with which to defend. Mr. Hayes may well be marked for death.  Today, even an abolitionist finds it hard to stand against the chorus of those calling for execution. 

Related topics: Cheshire Homicide
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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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