Killing Justice; Killing Hayes

Had attorney Jeremiah Donovan waited a week or two, his violation of a court order would never have been necessary: Joshua Komisarjevsky's diaries told us all we needed to know about his sexual assault of an 11-year-old girl in Cheshire. He didn't actually rape her, he reasons; he spared her that indignity. Instead, he merely ejaculated onto her. Welcome to Hell where such distinctions matter.

Donovan will face a show cause hearing before Superior Court Judge Roland Fasano today. The judge will have to determine what to do about the fact that Donovan wasn't supposed to comment publicly about the case, but then went ahead and did so anyhow. He violated a gag order. It s abundantly clear he violated that order.

At the time, it seemed like an outlaw's gallantry, defending his client against all odds. A jury was hearing, and the press was reporting, the gory details of the Cheshire home invasion in the case of the co-defendant, Steven Hayes. Donovan's client, Mr. Komisarjevsky, doesn't go to trial until January 2011. Donovan wanted to correct misinformation that might make it impossible for his client to get a fair trial.

But he also wanted to silence the family of the victims, who have become veritable rock stars, riding a tidal wave of sympathy. No gag order applies to them. They are free to speak, to lobby in favor of the death penalty, to pull as hard as they can at the heartstrings of a public outraged by these murders. And they have done so, with the assistance of a public relations firm that has donated its time to the cause. 

Donovan's strategy seems to have worked.

Shortly after Donovan's courthouse contempt, Dr. William Petit Jr. announced he would not seek to testify at the penalty phase. Many press reports made this sound like an act of magnanimity. But the fact remains that Dr. Petit had no right to testify at the penalty phase of the trial. While he has lobbied for legislation that would permit victims to give so-called victim's impact statements to juries in capital cases, that is not the law. Had Dr. Petit sought to testify he would have created an appellate issue for the defense. His silence, he hopes, will be deadly, eliminating an issue that could have, if he had been permitted to testify, been the sort of error that might have given Hayes a new trial.

In addition, Dr. Petit testified in the guilt phase. He is under a sequestration order that normally prohibits a witness from sitting in on the testimony of others, for fear that such attendance might influence the testimony of others. The court bent the rules for Dr. Petit, permitting him to remain in the courtroom after his testimony; it was understood that by so doing he would waive any right to be recalled.

I did not hear Dr. Petit waive the right to speak at sentencing. I suspect he will, and that he will eloquently call for the death of the men who destroyed his family. He just won't get to do that before the jury that decides whether to kill Hayes. 

Jeremiah Donovan was in contempt of a court order. He should pay a fine and move on. The drama of the event was a flash in the pan. There was no prejudice to any party. We're now sated with all we could ever want to know about Komisarjevsky. Let the focus return to Steven Hayes, who, in a different courtroom, will resume his silent vigil as his lawyers try to save his life.

Yesterday's testimony was not exactly helpful to the defense. The defense offered prison officials to tell the jury about what prison is like, and to assure them that violent men do not become more so while confined. But then a report surfaced: Hayes had threatened to rip the heart out of corrections officer. On another occasion he boasted he had nothing left to lose. He is on death row after all.

Bad move, Steve. You have a life to lose. That remark may well come back to haunt you some needle-filled day.

I am not sure what we expect of the men on death row. Even Thomas Hobbes, a seventeenth century philosopher who theorized that the state should be given enormous power to provide its citizens security, realized that all bets were off once the state seeks to kill. A man facing the death penalty is justified in using lethal force to resist the state. We've declared war on Hayes; Hobbes wouldn't expect him simply to whimper, "oh, all right" on his way to the death chamber. In the war of all against all, Hayes gets to kill again, and with justification, if he strikes at the state's assassins, or so Hobbes theorized.

Public opinion reflects great support for the killing of Steven Hayes and Joshua Komisarjevsky. The Hayes trial has been a brutal affair. But there is more brutality to come, I am afraid. This business of the state striking to kill is wrong. It is making killers of us all and mocking the rule of law. Donovan's contempt, Hayes' prison outburst, the angry snarl of a public aching for yet more blood: pathology all. We ought not to tinker with death and call it justice. Vengeance isn't justice. Neither is confining a man to a tiny box while we make every effort to kill him, and then expect him to submit quietly to the death-strike. And neither is punishing a lawyer for exposing double standards with a courageous act of contempt.

This sad farce demeans us all. And it won't end any time soon.

Related topics: Cheshire Homicide

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


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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