Oct
02

Why Not Have Komisarjevsky Testify?

The focus turns this week to the defense of Joshua Komisarjevsky. Good luck, I say. The courthouse has been doused in hatred. The sympathetic fumes of those of think that killing is justice choke the hallways. All it will take now is a spark to light the place afire. That’s what we want, isn’t it? An eye for an eye? Oh, the sweet, sweet savagery of it all.

Don’t be fooled for a moment. The pews are filled in the courtroom with spectators looking for a taste of something real. Some want to see how evil looks and feels. They want to try it on for size, and then, once they’ve taken their own dogs for a private walk, they want the smug satisfaction of seeing their demon killed. Others seek to exorcize rage that will never be slaked. Komisarjesky is suddenly less a man than a symbol of what we fear. Let’s kill him, shall we, so that we can feel safe.

The courtroom is a moral madhouse. Even the prosecution sleepwalks through this performance theater. It has marched through its evidence with the grim and self-conscious determination of a child forced to undergo a first communion without the benefit of belief. And the reporters, oh, yes, the reporters. They are there to witness every gory moment in the name of the public’s right to know. We want it all, every last bit, let us drink this bitter cup to the fill.

So what is left for the defense to do? The jury has heard Komisarjevsky’s confession. The police officers who took it have testified about his demeanor. We’ve heard the words of the Devil on his day trip among us; we’ve taken a peak into the inner circle of Hell. Why not let the Devil speak?

It would not surprise me to see Komisarjevsky take the stand in his own defense as part of the defense case. What, really, has he to lose?

A criminal defendant is largely a captive to the strategic choices his lawyers make. But in three areas the client is captain of the ship, issuing orders his counsel may recommend against, but which his lawyers must follow. The first decision belonging to the client is whether to plead guilty or not guilty. The second is whether to ask for a trial by jury or by judge. Finally, a client can decide whether to testify.

Death-penalty proceedings in Connecticut warp the law. While Komisarjevsky had the choice whether to plead guilty or not to the crimes charged, the law does not give him the right to submit to death. He is obliged as a matter of law to fight for his life. There is a presumption in the law against the rationality of suicide. We no more permit a person who wishes to engage the service of a physician to end his or her own life to do so than we permit the man who wishes to plead guilty to horrific crimes the right to submit to a penalty of death. Death is different, the courts say. So Komisarjevsky now fights for his life. We want to kill him in the name of justice; but he cannot kill himself. No, that would be irrational. Let’s be honest about this grim logic: He can’t kill himself, we want to do it. We want to do it because we will enjoy it.

Jeremiah Donovan, Komisarjevsky’s lawyer, may well recommend that his client testify, although the choice to have him do so would be unconventional. But Jeremiah has been bold in this trial, challenging the right of family members to appear in the gallery of the court wearing the regalia of their sorrow in the jury’s view, or calling out the decision of family members to leave en masse at various stages of the proceeding. He utters truths only courthouse staff have been uttering in private: There is a sense of weariness about these special proceedings. How long, some wonder, until the rest of us are put out of Dr. William Petit’s misery? What social cost survivor’s guilt?

So let’s hear from Komisarjevsky. Let’s get this family feud on once and for all.

Both defendants in this case have engaged in a gruesome trial strategy, each blaming the other for the more outrageous acts committed in the Cheshire home in July 2007, a devilish sort of "Who’s On First?" routine that failed in the case of Steven Hayes and will no doubt fail in Komisarjevky’s case. "The Devil made me do it" is not a defense when both men are knee deep in the blood of a mother and her children.

The defense in Komisarjevksy’s case is hoping for a miracle. If it can but persuade the jury that Joshua is not the principal, but that he was merely an accessory, a young man caught up in the dark thrill of evil who lost his moorings one morning, the defense hopes to jam the grim machinery of death. Good luck, I say.

If he is to live, Komisarjevsky has to be transformed from a moral caricature into a man the jury can at least understand. He tried to tell his story in his tortured prison diaries. He spoke of a lifetime of suppressed rage spawned by his own abuse as a child. That theme will resonate with some jurors even if it does not justify or excuse his crimes. And he taunted both potential jurors and Dr. Petit, wondering why the doctor did not fight harder for his family and whether the jurors could really kill him. What say you now, young man?

In the Hayes case, defense counsel opted for a minimalist defense, merely walking Hayes up to the jury rail, a caged animal for the jury to consider. Hayes remained a fearful caricature.

I say put Komisarjevsky on the stand. Let him air out all the voices he has tried to use since the horrible events of July 2007. Yes, the jury may hate him and want to see him dead. Odds are they already do. His only hope is to confront each and every spectator to the trial at the level of their inchoate rage. We love to hate Joshua Komisarjevsky not because he is a stranger to us. His crimes distinguish him from us only in degree, but not really in kind. All have sinned and fallen short of the glory of God. We who are so quick to clamor for the death of the killer lose sight of the irony of our demand to become just like Josh.

W e’re all killers, savages at heart. That’s why his trial transfixes. They’s why all the press coverage. That’s why we repainted a courtroom for these oh-so-special proceedings. That’s why he must be killed. If gets away with this horrific crime our restraint is mocked.

I wonder is Joshua Komisarjevsky has the moxie to take the stand and call our bluff. If he can show us just enough of ourselves, force us to confront the true reason for our dark fascination with this case, he might just earn the right to die of natural causes. At the very least, he will force us to recognize why we enjoy the prospect of killing him so.

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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

Disclaimer:

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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