Superior Court Judge Roland Fasano wants to hold a hearing to determine whether he should initiate criminal contempt proceedings against Jeremiah Donovan. In a one-line order, the judge wrote: “[I]t is alleged Attorney Donovan made extrajudicial statements relating to the matters of State v. Hayes and State v. Komisarjevsky for public dissemination, that raise a reasonable likelihood of material, prejudicial impact upon the Hayes trial currently in progress and the Komisarjevsky trial to follow, all in flagrant violation of this court’s order of Sept. 13, 2010.”
I respect and admire Judge Fasano, but the text of this order causes me to wonder whether he’s living in the same state. The newspapers statewide have been replete with overage of this case. Often as not, the papers report statements given to the press by Dr. William Petit and his family. No one complains of prejudice when they whip up public opinion.
Don’t get me wrong. Attorney Donovan did violate an order preventing any of the attorneys active in the Hayes and Komisarjevsky cases from commenting to the press. He has told the press that defying the order was the only way he could challenge the order. He’s too good a lawyer to believe that. There were less dramatic ways to accomplish this.
But my sympathies and heart are with Mr. Donovan. As Dickens once put it, the law is an ass, and never so much so as with the kooky asymmetry we lack the courage to address in this case. When it comes to Dr. William Petit, we simply have two tracks for the administration of justice. That’s wrong.
The chilling background of the Cheshire home invasion is now international news. In July 2007, Mr. Hayes and Mr. Komisarjevsky slaughtered a family and left Dr. Petit for dead. The state seeks the death penalty as to both men. Their lawyers concede their clients’ involvement in the horror. They are fighting merely to keep the men alive.
Mr, Hayes has been in trial this fall. Mr, Kosimarjevsky’s case is set to begin trial next year. Well before the trials began, the court issued a gag order binding the parties and their counsel in this case to silence. The concern was prejudicial pretrial publicity.
Our state Constitution gives to crime victims the right to be heard during criminal proceedings. They can object to plea offers. They have right to be notified of court proceedings. They have a right to be treated with fairness and dignity. All of these rights come free of charge, with no strings attached. They are not parties, however. They have rights, but no responsibilities.
The Petit family has made good use of the lack of any lawful restraint on their speech. A public relations firm has helped the family deal with the press. At trial, swarms of reporters follow Dr. Petit’s every move. His sister speaks out as well. They express frustration when the case is delayed. They are effective lobbyists for death in this case. When Gov. N. Jodi Rell vetoed legislation that would have repealed the death penalty, she cited among the reasons for the veto the horror of the Petit case.
The press has helped to create a tidal wave of sympathy for Dr. Petit. His every movement during trial is reported on Twitter in a breakneck race to win a Pulitzer Prize for sensitivity. The family is rumored to have a courtroom for its own personal use to prepare for trial each day. It’s as though there are two tiers of justice in Connecticut: one for lower class families and folks of color, and then the privileged track for upper middle class white folks. I am not alone in uttering this suspicion. I’ve heard it in judicial chambers, prosecutors’ offices and from the lips of defense counsel. But few want to utter this truth aloud. Dr.Petit has become the rock star of rage.
Without doubt, Mr. Donovan is frustrated by press reports that daily portray his client as a devil. The Petit family is free to comment on the proceedings. The press reports the efforts of Mr. Hayes’ counsel to lay blame on Mr. Kosimarjevsky. This flame of hostile press has been transformed into an inferno of hatred fanned in part by the Petit family. What is contemptuous about the decision of Mr. Donovan to stick up for his client? To sit silently during this prime time lynching would be obscene.
Claims of prejudice are by now moot. A gag order is an exercise in futility at this stage of the proceedings. Obeying an order to remain silent while Mr. Komisarjevsky is daily slaughtered in the press is an empty formality.
I hope that when Judge Fasano convenes his show cause hearing, he will consider issuing an order imposing silence on the Petit family. If they want the right to be heard in the proceedings, they should forfeit the right to act as if the entire state is but a stage for what is rapidly becoming an almost obscene pity party.
Dr. Petit is a victim of a horrible crime. That he has been undone by it is obvious. No one among us could endure the slaughter of our family with equanimity. But we ought not to sanctify his rage by court orders that permit him to vent his rage while insisting that those accused remain silent.
Judge Fasano ought not to refer this matter for criminal contempt proceedings. He should recognize this case for what it is: A special case with special rules for a victim who behaves as though his suffering has given him rights without responsibilities. I say impose a gag order on the Petit family as well. Let them be heard at the time of sentencing, as are most victims. The family’s playing to the press and the heart strings of the public excuses Mr. Donovan’s contempt.
Reprinted courtesy of the Connecticut Law Tribune.