Joshua Komisarjevsky will go down swinging. There’s little doubt he will be convicted of a dozen or so major felonies, including capital felonies, for his role in the 2007 Cheshire home invasion. And there is little doubt he will be sentenced to death. His trial is the second bite of a by now rotten and therefore noxious apple. We’ve seen it all, heard it all, and felt all there is to feel as we beheld the spectacle of the trial of Steven Hayes, his co-defendant, last year. There’s no sport, no drama, in this second act, this grim killing farce.
So Komisarjevsky’s lawyers will have to make it a sporting event.
I say the real drama in round two of Connecticut’s version of Truman Capote’s In Cold Blood is the contest of personalities. Superior Court Judge Jon C. Blue will preside over this second trial, as he did the first. But in the second round it will be the judge who is on trial, and his prosecutor, his interlocutor, the man who will haunt his dreams and test his patience, is Attorney Jeremiah Donovan. Komisarjevsky will be convicted, of that there is no doubt. The only real question is how long it will be before Judge Blue holds Donovan in contempt, and how often he does so.
If ever there were a marriage conceived in Hell, it is that between Blue and Donovan.
Judge Blue has an almost compulsive need to be perceived forever and always as the smartest man in the room. He is a guarded soul, given to chirping in delight over pleasures others might not care to notice. He can be kind, but in a bizarre, almost inappropriate way. What other jurist brings homemade cookies to give to court staff in a death penalty trial? Or tells jurors it is all right to hug one another after a grueling day of evidence? You hear stories about this and you scratch your head: What could he be thinking or doing? It has the feel of a frightened child not sure what gift to give battling parents to purchase a moment’s peace. Judge Blue presides over a quirky courtroom.
Enter Jeremiah Donovan. He just might be the smartest man in any room he inhabits. Imagine Ichabod Crane, but trained to speak Mandarin Chinese and clothing himself out of the leavings at second-hand shops in affluent communities. I’ve tried cases with him. He has a Protean sort of intelligence, a mind forever turning: "Good morning" seems less a greeting than an invitation to ponder the possibilities of the day when uttered by him. He can undo witnesses with a glance. And he is confident enough to keep his own counsel. I do not know whether he plays chess, but I do know that there is always an end game in mind when he is in court. He can out think a scholar, and charm the pants off a used car salesman. By the time the Komisarjevsky trial is over, Judge Blue will have nightmares about Donovan, dark landscapes of dancing gavels, and the silhouettes of crosses on dark hills.
The work of trial is threefold for a defense lawyer: Win an acquittal if you can. But if the case is impossible, then preserve error so as to fight another day. But the most difficult work is forcing error: finding fault lines in the drama of trial that can be pressed to yield the sorts of eruptions that can derail the proceedings. The defense is unencumbered by the duty to do justice, a limit placed on the prosecution. A defense lawyer is a guerilla, fighting for freedom, or in this case to prevent a gratuitous killing, with whatever is at hand. That can include the temperament and personality of a judge.
The clash between Blue and Donovan is the true drama in Cheshire II. It was on display this week. Donovan asked for a schedule of four days per week for jury selection. Judge Blue balked, and told the defense team that if Donovan could not be present on a given day, his co-counsel could pick jurors in his absence. Donovan responded by telling the judge he’d instruct co-counsel not to select jurors on days he was absent. Blue was incredulous, and asked whether that was a threatened filibuster. Donovan did not answer. I suspect he merely looked at Blue with Sphinx-like eyes, remaining silent and letting angry fumes fill the judge. These fumes, accumulated over a long trial and in response to daily challenges, can eventually take the shape of irritation, then hostility, then anger, and then, mother lode of all in an impossible case, rulings that suggest the judge abused his discretion to govern on all manner of things to the detriment of the defense. There is a method to Donovan’s madness, I say. His is the work of becoming such a large presence in the judge’s mind, that the trial becomes a contest between the two men.
The defense lost almost all of its motions this week, hardly a surprise. Judge Blue remains in the case, a prospect that places him at the center of what is, perhaps, the biggest legal drama of his life. Journalists can Twitter to their readers' content, at least during jury selection, adoringly reporting Dr. William Petit’s every move and gesture. The victims’ family can wear buttons in court advertising the foundation established in the victims’ names. The parties will be ordered to sit in prescribed spots, with the state sitting close enough to jurors to shake hands, but the defense banished to the furthest, and safest, place in the room, far, far, from the jury who will be asked to kill. The defense lost these motions, but it will keep pressing. There will be new and novel motions daily, and challenges throughout to Judge Blue. The defense objective is to put Judge Blue on trial. Before this trial is over, Judge Blue will be sorry he volunteered for this spot beneath the unforgiving Sun.
And hence this program note on the trial to come: I predict the judge will be baited into holding Donovan in contempt, and that it may well occur several times. Indeed, there is the very real chance this case could be mistried if the umpire can be lured into grabbing a bat and marching out onto the playing field to take a swing or two. I suspect this is Donovan’s end game.
Cheshire II promises drama of a different sort; it is chess like game that has little to do with Joshua Komisarjevsky's guilt not, or even whether he is killed. If the state wants to kill Komisarjevsky, it must first hope that Jeremiah Donovan fails in pushing Judge Blue off the precarious perch on which the judge’s ego rests. That is the trial worth watching in this case, verdict or not.