When I heard that Jeremiah Donovan stood on the courthouse steps yesterday and held a press conference regarding press reports about his ciient, Joshua Komisarjevsky, I was stunned. There is a gag order in place barring any of the lawyers in the case from speaking publicly. What possessed Jeremiah to flout the order?
The purpose of the press conference was to rebut reports in the press that Mr. Komisarjevsky had anally raped an 11-year-old girl during a brutal home invasion in Cheshire in 2007. The girl, her mother and her sister were assaulted and murdered by Mr. Komisarjevsky and his co-defendant, Steven Hayes. Mr. Hayes now stands trial in a case that has attracted attention worldwide, with reporters lining up in the pre-dawn hours to make sure they get a seat in the courtroom. The reporters Tweet throughout the trial, and write breathless pieces each morning about the horror of it all. How much more can be endured?, they ask, before rushing back in to get one of the cheap seats to endure still more, with sensitivity.
The testimony has been graphic. It's been reported that Mr. Komisarjevsky raped an 11-year-old girl. He then left her tied to her bed as the men poured gasoline through the home of the upper-middle-class family before setting it afire and fleeing. The surviving victim, Dr. William Petit, was beaten senseless and left for dead. He managed to stumble to safety. Auschwitz visited Cheshire, Connecticut, that night.
Mr. Donovan wanted the world to know that his client never actually sodomized the little girl. No, not he. While the evidence may well show that he sexually assaulted the child, he merely ejaculated onto her back. Perhaps semen seeped down to forbidden regions. But there is no evidence of penetration. He was careful to point out that this impression was formed in part by comments made by the victims' family to the press.
I heard this and I thought Mr. Donovan must have lost his mind. This is what lawyers call a distinction without real difference. Why repeat this gore for a watching world? Did Mr. Donovan really think it would take the sting out of a press corp hungry to show how sympathetic it can be to the victims' surviving family? Coverage of the trial resembles a long wake: No inconvenient truths must be uttered in too loud a tone so as not to disturb Dr. Petit and his loquacious, if not telegenic, sister. The family has a public relations firm advising it on how best to pitch its rage and manipulate sympathy in the quest to have a jury vote to kill Mr. Hayes, and then Mr. Komisarjevsky.
But I know Jeremiah well. He is one of the few lawyers in Connecticut of whom I can assert, without reservation, he is possessed of genius. We once had co-defendants in a federal capital case; I marveled at how quickly he could frame an issue. The manner in which he conveyed the day's greetings was enough to unnerve some witnesses. Jeremiah never wastes. Everything is a product of thought. What could he have been thinking when he violated the court's gag order to tell the world his client was perhaps a rapist, but no Sodomite?
Dr. Petit told me. Dr. Petit and his sister wasted no time standing on the courthouse steps and calling for Mr. Donovan to be held in contempt for violating the court's gag order.
Note the irony.
There is no gag order as to Dr. Petit and his family. The court earlier took the position that it had no jurisdiction over them. You see, they are not parties. But they are calling the shots in this prosecution. They want the defendants to die. Even though both defendants have offered to plead guilty in exchange for not being put to death, that's not enough for Dr. Petit. He has lobbied, taken to the airwaves, and pleaded publicly for death. When our state legislature repealed the death penalty last year, Governor N. Jodi Rell vetoed the legislation, citing the Cheshire case. Dr. Petit has been heard, and is heard from almost daily in this trial.
Connecticut's constitution gives to victims the right to be heard at all stages of a prosecution. But it does not give them party status. When the trial court issued a gag order in these cases, it bound only the parties: the state and the defendants. No one dared issue an order silencing Dr. Petit. It is not at all clear to me wh y that is the case. Rights come, we say in the law, with responsibilities. A person who wants to retain the right to be heard in a judicial proceeding should forfeit the right to behave as though trial were a three-ring circus.
Which brings me back to Mr. Donovan's contemptuous gambit.
He did violate the court order. My sense is that he did so in order to provoke a hearing. At that hearing he can argue that whatever purpose the gag order initially served is now moot: The gory details of the home invasion are now prime-time fodder. The danger of public prejudice and passion infecting the proceedings is now intensified by the decision of the Petit family to comment frequently to the press. The court should either release all parties from the gag order immediately or impose it on all parties and the victims' family.
It is significant in this case that it was Dr. Petit, and not the state, that called for a contempt order. If neither the state, nor the Office of the Victim's Advocate, steps up to the plate to move for contempt, that will signal the coldest of shoulders being bared to Dr. Petit. Could it be that even the prosecution is weary of this trial as theater of the macabre? There is a resigned sense of weariness apparent in the state's presentation of the case: Are the prosecutors mere puppets?, some observers grumble.
Jeremiah Donovan violated a court order. That is clear. But I say he did so as part of a larger plan. He wants the court to place the scales of justice front and center in this case and to stop weighting one side of the scales with pity. Dr. Petit is right to rage. We all feel pity and sorrow for him. But in the matter of Mr. Donovan's contempt, I say game, set and match to the defense. The endgame is an order obliging Dr. Petit to stop using the press as co-executioners in a game only he really seems to want to play.
A contempt citation could cost Mr. Donovan $100 or so. It will cost Dr. Petit far more, if justice is done.
I won't pretend to be neutral about the death penalty. The state ought not to have the power to kill its citizens. Period. It is too awesome and final a power, and it has historically been used too many times for reasons having nothing to do with justice. The death penalty should be abolished in the United States, as it has been in Europe.
But we still kill, apparently with relish. Texas has put 463 people to death since 1976; Virginia has put 106 to death. No, wait. Make that 107 for Virginia. Last night the state killed a retarded woman, shooting 41-year-old Teresa Lewis full of poison for her role in arranging a contract killing of her husband and stepson in order to collect on a $250,000 insurance policy covering the stepson.
We have put 1,226 people to death in the United States since the death penalty was once again put into use in 1976. That was after Furman v. Georgia struck the penalty down as arbitrary and capricious, administered in a manner that left its imposition as freakish an affair as being struck by lightning. States with a taste for the blood of their own citizens responded with a new and improved death penalty specifying death-eligible offenses and separating determinations of guilt from that of sentencing. But the law is still freakish. Poor people, retarded people, mentally ill people and people of color are most often the victims of state killing. Are men targeted too often?
Only 12 women have been put to death in the past 34 years. Twelve hundred and fourteen men have been ushered off the planet in that time. Some contend that there is a gender bias in the law. We are quick to kill when a stranger turns a violent hand toward another stranger; less quick to kill when mom whacks dad in the heat of passion. Drawing such distinctions is macabre.
Even in cases in which there is no danger of mistaken findings of guilt, where there is no doubt about what the defendant has done, the death penalty still terrifies. It sends a message that the state is somehow an arbiter of good and evil. The state plays no such role. We don't worship at an altar draped in a flag; we debate whether good men can be good citizens; we regard the state as a necessary evil. Permitting a prosecutor or jury to play the role of executioner gives to the state the power to take life; yet the state has no power to create the life it destroys. We all tumble from wombs into a chaos our parents seek to tame as we become socialized to governing norms of conduct; the law is merely one set of norms, defining minimum conditions of decency between strangers. It is dangerous to let the state over-reach into a moral domain regarding the value of life and who should sacrifice the right to life.
Ms. Lewis undoubtedly made cruel and unforgivable decisions. Whether these decisions were informed by her borderline mental retardation is beside the point. We could easily have justified a sentence of life without possibility of parole in her case. That would have sent a message about what conduct we are prepared to tolerate. We could have done this without killing her, and giving the state a taste of our own blood.
Thomas Hobbes in the Leviathan granted the state absolute power. The state had this power because in the absence of such power, no individual would be secure against the violence of what he called the state of nature. Yet even Hobbes realized that giving the state the power to kill was going too far. We create the state to preserve life; we call the norms governing the state and society civilized. Giving the state the power to kill returns us to a condition of savagery. Hobbes asserted that when the state sought to kill, the target of the state's wr
ath had no obligation to obey. He was morally justified in meeting lethal force with lethal force.
Hobbes got it right.
Ms. Lewis went gently into the night, defeated in mind and body. I mourn her, as I mourn the death-dealing machinery extant in our states. I wonder whether we are justified in resistance to a power that kills without justification?