02/09/2011 WED 15:58 FAX 203 967 6240 NH CRIMINAL DIV Boor STATE OF CONNECTICUT DOCKET NO. CRO7-241860 3 SUPERIOR COURT STATE OF CONNECTICUT, : JUDICIAL DISTRICT FOR NEW HAVEN v : AT NEW HAVEN JOSHUA KOMISARJEVSKY, : FEBRUARY 9, 2011 DEFENDANT JOSHUA KOMISARJEVSKY’S MOTION REGARDING JURY SELCTION PROCEDURES AND MEMORANDUM OF LAW REGARDING CAPITAL VOIR DIRE COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel, and respectfully moves this Court to adopt the following proposed jury selection procedures and practices, TABLE OF CONTENTS INTRODUCTION... 2 f 1 LiFe AND DEATH QUALIFICATION 3 I IL. JUROR QUESTIONNAIRES... 20 OL Jury SELECTION Locistics. 27 | TV. ADDITIONAL PREEMPTORY CHALLENGES... 28 V. Two ATTORNEYS TO QUESTION EACH VENIRE PERSON, AS NEEDED... 30 VI. SHOW VENIRE PERSONS PHOTOGRAPHS OF THE VicTIMS. 33 ‘VIL. JURY SEQUESTRATION, oo eS € cd b- OH NZ 301440 $.4Y379 431HI tunod Hae “OT N3AVH AV}02/09/2011 WED 15:59 FAX 203 987 6240 NH CRIMINAL DIV InTRODUCTION It is difficult to conceive of a greater burden to impose upon a citizen than deciding whether another individual should live or die. The decision must be made by each capital juror, ‘who is “called upon to make a ‘highly subjective, unique, individualized judgment™ as to which punishment the defendant deserves. Tamer v. Murray, 476 U.S. 28, 33-34 (1986) (citations omitted; internal quotation marks omitted). Selecting 12 individuals (and an appropriate number of alternates) who can make this weighty and always emotionally charged decision fairly, unburdened as much as possible by pre-trial publicity, by pre-existing biases and by misconceptions, is obviously a matter of crucial importance. Mr, Komisarjevsky submits this memorandum to summazize the relevant legal principles governing voir dire in capital cases, including the proper standards for challenges for cause and appropriate methods of questioning. Focused and thorough inquiry is required, in order to elicit sufficient information to discem whether potential jurors harbor any disqualifying prejudice that could support a challenge for cause, and to allow counsel to intelligently exercise preemptory challenges. The standards that follow will effectuate Mr. Komisarjevsky’s right to a fair and impartial jury, to Which he is entitled under the Sixth Amendment, See, ¢.g., Morgan v. Minois, 504 U.S. 719, 928 (1992); Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Gray v. Mississippi, 481 USS. 648, 658 (1987); State v. Roman, 262 Conn. 718, 726 (2003) (“Our jurisprudence on the issue of the right to an impartial jury is well settled: ‘Jury inopartiality is a core requirement of the right to tial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution”), Mr. Komisarjevsky also relies on his right to a fair cross-sectional jury, to due process, to equal protection, to a reliable guilt and penalty ooz02/08/2011 WED 15:59 FAX 203 867 6240 NH CRIMINAL DIY determination, and to be free from cruel ancl unusual punishment, and other rights ssfeguarded under the Sixth and Eighth Amendments to the United States Constitution. L. Lire AND DEATH QUALIFICATION “Life-qualification” seeks to ensure that prospective jurors can fairly and impartially consider a sentence of life at the penalty phase of a capital trial. In Morgan v. Illinois, the Supreme Court recognized that a capital defendant is constitutionally entitled to voir dire prospective jurors about their support for the death penalty (or opposition to a sentence of life) and to remove for cause any prospective juror who, it appears, would be inclined to impose a death sentence without considering mitigating evidence or who would otherwise not follow the law in determining punishment. 504 U.S. at 728-34; accord Ross v. Oklahoma, 487 U.S. at 85. Such a juror, whose views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,” must be removed for cause. Morpan, 504 U.S, at 728-29 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980). “Death qualification,” in tum, secks to determine whether a juror’s opposition to the death penalty is so entrenched and categorical as render it impossible for the juror to consider death as a sentencing option. Removal for cause of jurors who express opposition to capital punishment is governed by the same “prevent or substantially impair” standard, Morgan, 504 US. at 734-35. In support of the positions set forth herein, Mr. Komisarjevsky relies, in part, on the attached study, which derives from interviews of 1198 jurors from 353 trials in 14 states. The study establishes that capital jurors commonly fail to comport with constitutional standards in making their sentencing decisions. William J. Bowers, et al., Jurors’ Failure to Understand or Comport with Constitutional Standards in Capital Sentencing: Strength of the Evidence, 46 Goos02/09/2011 WED 15:89 FAX 203 867 6240 NH CRIMINAL DIV loos Criminal Law Bulletin 6, 1147 (Thompson Reuters 2010) (Ex. A). For instance, 43.8 percent of the jurors surveyed held the mistaken belief that the law requires imposition of a death sentence if the evidence proves the crimes was heinous, vile or depraved. Of the surveyed jurors, 57.1 percent indicated that death was the only punishment they would consider acceptable if the murder was planned or premeditated, while 53.7 percent indicated this position if there was the murder of more than one victim. Of those surveyed, 44.6 percent “failed to realize they were allowed to consider mitigating factors not listed in the statute”; 49.2 percent “erroneously assumed that “beyond a reasonable doubt’ was the standard of proof for mitigating evidence”; and 29.9 percent “did not realize aggravating evidence was supposed to be proven beyond a reasonable doubt.” A. Death Qualification In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court held that the prosecution in a capital case may challenge a juror for cause, on the basis of opposition to the death penalty, only where a juror makes it unmistakably clear that “they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.” Id. 523 n.21, The Court went on to state: [A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding vehiremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Witherspoon, 391 U.S. at $22. The Supreme Court has never retreated from the essential constitutional point made in Witherspoon, that “[aJ‘man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” Id, 519. Accordingly, a potential juror’s strong views02/08/2011 WED 16:00 FAX 203 867 6240 NH CRIMINAL DIV Boos in opposition to capital punishment is not a disqualifying factor: “those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside'their own beliefs in deference to the rule of law.” Lockhart v. McCree, 476 U.S. 162, 176 (1986). A challenge for cause is warranted only when the juror’s views on capital punishment are so:deeply entrenched that it “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."” Wainwright v, Witt, 469 U.S. 412, 420-21 (1985) (quoting Adams v, Texas, 448 US. at 45). The Supreme Court has also made clear that “Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State's power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their oaths, the death sentence cannot, be carried out.” Adams, 448 U.S. at 47-48 (quoting Witherspoon, 391 U.S. at 522, n.21). The constitutional right to an impartial jury thus restricts the authority of the Court to excuse a prospective juror for cause at the behest of the prosecution because of opposition to the death penalty (ie., because of supposed bias in favor of the defendant). Just as the state may not “entrust the determination of whether a man is innocent or guilty to a tribunal organized to convict,” it may not “entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.” Witherspoon, 391 U.S. at 521-22. To permit the state to cull from the jury those “who harbor doubts about the wisdom of capital punishment” would be to “produce a jury uncommonly willing to condemn @ man to die.” 1d, ‘The application of these principles is discussed more fully below. We note, though, that the exclusion of a potential juror who has conscientious scruples against the death penalty but02/08/2011 WED 18:00 FAX 203 867 6240 NH CRPMINAL DIY ove ‘who is otherwise eligible to serve mandates automatic reversal of any death sentence. Gray v, Mississippi, 481 U.S. at 668. The wrongful grant of a prosecution challenge to a juror because of reservations about the death penalty can never be deemed harmless error, even if the prosecutor has unused preemptory challenges. Id. L. The state may not challenge for ¢ cause those prospective jurors who express general opposition to capital punishment, hesitate oF equivocate in their answers. or indicate that lity of a death sentence would induce them to eater care, the 1 deliberati The quest of the death-qualification process is to ensure that regardless of their views on the death penalty, individuals can discharge the sentencing obligations of a capital juror and obey their oaths to render an impartial verdict based on the evidence and in accordance with the Court's instructions, ‘The Constitution forbids the exclusion of death-scrupled jurors on any ‘broader grounds. See Witherspoon, 391 U.S. at $15, n.7 (It is “entirely possible ... that even a Juror who believes that capital punishment should never be inflicted and who is irrevocably ‘committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law”). IL follows, then, as set forth below, that the exclusion for cause of prospective jurors who merely express general opposition | to the death penalty; have not formed definite views on capital punishment; or acknowledge that the possibility of a death sentence would influence the performance of theix duties or cause them to exercise greeter care or thought in their deliberations, would constitute reversible error. ‘The Supreme Court has repeatedly acknowledged that it is constitutionally impermissible to exclude prospective jurors simply because they oppose the death penalty. In Witherspoon, 391 ULS. at 522, the Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced02/00/2011 WED 16:00 FAX 203 867 6240 NH CRIMINAL DIV Goor general objections to the death penalty.” Indeed, even after broadening the prosecution's power to challenge potential jurors because of their views'on capital punishment in Witt, the Court reiterated that “[i]t is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases.” Lockhart, 476 U.S. at 176; accord Gray, 481 U.S. at 658. I Rather, because “the quest is for jurors who will conscientiously apply the law and find the facts,” Witt, 469 U.S. at 423, even individuals who “firmly believe that the death penalty is unjust” may sit as jurors in capital cases so long as they can “set aside their own beliefs in deference to the rule of law.” Lockhart, 476 U.S, at'176. People v. Cahill, 2 N.Y.3d 14 (2003), illustrates the point. There, the New York Court of Appeals held that the trial court erred in granting the prosecution’s challenge to excuse prospeetive Juror 855 for cause as not “death qualified.” Juror 855 expressed strong reservations about the death penalty, both in her questionnaire and during voir dire. During voir dite examination, “she said that ‘in most instances’ thie death penalty was wrong,” 2.N.Y.3d 14, 46- | The prosecutor questioned her further on this point, pressing her to give examples of cases in which she thought the death penalty appropriate, She agroed with the prosecutor when he suggested that a case involving multiple viotims might justify capital punishment [there was only one victim in Mr. Cahil’s case), and said she ‘would consider the death penalty in cases that involved ‘[sJomething very, very very wrong,’ or were ‘bizarre’ or ‘brutall J.” She also referred to an instance in which she thought the death penalty warranted, identifying ‘the case of a mother and daughters that were out in the West.’ She declined to give further examples, explaining that she would base her decision on ‘prayerfal consideration and hearing about the situation,’ Furthermore, prospective juror No. 855 answered yes when at different times the prosecutor, defense counsel and the court asked her if she could consider both death and life withdut parole as possible punishments. Her voir dire concluded when the court asked her if she considered death a possible penalty in this case, and she replied that she ‘[saw] it as a possible one, sir, yes.” 47, Yel, she also allowed that she could “accept it in a few cases.” 1d. |02/09/2011 WED 16:01 FAX 203 867 6240 NH CRIMINAL DIV goos [d, The trial court granted the prosecution’s challenge for cause, finding the juror was not death qualified. ‘The Court of Appeals, applying the federal “prevent or substantially impair” standard, | ‘held that ruling was error: “Prospective Juror 855 may have expressed reservations about the death penalty but, after doing so, made it clear she could follow her oatb, act impartially, and | consider both the death penalty and life without parole.” Id, at 47-48. Accordingly, unless the state can establish that a prospective juror’s general opposition to the death penalty —be it philosophical, moral, legal, religious, economic, political or social — would “prevent or substantially impair” him or her fiom considering death as a penalty in this case, any for-cause challenge must be denied. It is only natural that individuals asked (o determine whether a human being should live or die approach such a task with great seriousness, caution and heightened concern and emotional involvement. Likewise, that a person charged with this responsibility desoribes the decision as a difficult one or expresses qualms about imposing the ultimate sanction merely reflects the gravity of the task and irrevocability of the judgment. Indeed, “significant uncertainty is to be expected in the average citizen when asked to discharge the fask.” State v, Ramseur, 524 A.2d 188, 255 (N.J. 1987). Moreover, ambiguous or contradictory responses by a prospective juror regarding | the death penalty may simply be the result of nervousness. See, e.g., State v. Hunt, 558 A.2d 1259, 1274 (NJ. 1989) (noting that “{mJany of [the prospective juror’s] responses, which are | couched in terms of ‘feelings,’ could be construed as mere expressions of nervousness"). ‘Such reservations or emotional reactions to the prospect of imposing a death sentence are not disqualifying, however, because they do not establish that the prospeetive juror cannot decide the fats impartially or conscientiously apply the lw. Indeed, the Supreme Court has explicitly held that individuals who indicate that “the potentially lethal consequences of their decision02/09/2011 WED 18:01 FAX 203 887 6240 NH CRIMINAL DIV Boos would invest their deliberations with greater seriousness and gravity or would involve them emotionally” cannot properly be challenged for cause, Adams, 448 U.S. at 49. Nor must a potential juror be able to aver that the possibility of a death sentence will not affect his or her deliberations, including “what their honest judgment of the facts will be or what they may deem to be areasonable doubt.” Id, 50, For “neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness ot inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty.” Id. $0, And a juror who is unclear about his or her feelings conceming the death penalty may well be willing to vote for it after hearing the evidence and the | particular circumstances of Mr. Komisarjevsky’s case — or this uncertain or equivocal juror might also ultimately vote against imposition of the death penalty. See Witherspoon, 391 U.S. at $22 n.21 (“[A] prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him.’ In sum, “to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of | the impartial jury-to-which he or she is entitled under the law.” Id, is entitled to attempt to rehabilitate any prospective jurors indicate that their views about the d f ‘lude them from rendering an impartial verdict as to guilt or that they are irrevocably committed to voting against the death penalty, ‘The Supreme Court has recognized thet initial expressions of irrevocable opposition to the death penalty by prospective jurors often do not acourately represent the jurors’ true beliefs and therefore, further exploration ofthe individual's views must be permitted. In Gray, the Supreme Court explained that, “despite their initial responses, the venire members might have02/08/2011 WED 16:01 FAX 203 867 6240 NH CRIMINAL DIV oro clarified their positions upon further questioning and revealed that their concems about the death. penalty were weaker than they originally stated. It might have become clear that they could set aside their scruples and serve as jurors.” Similarly, the Supreme Court made clear in Darden v. Wainwzight, 477 U.S. 168 (1986), that a barebones inquiry that reveals apparent bias in favor of the defense is insufficient in a capital case. Nor can the wrong answer to u single leading question by the court or prosecutor render a prospective juror unqualified. As the Darden court put it, [als Wit makes clear... our inquiry does not end with a mechanical recitation of a single question and answer.” Jd; see also ‘Morgan, 504 U.S. at 730 (“particularly in capital cases, ... certain inquiries must be made to effectuate constitutional protections Before pranting a for-cause challenge by the government, therefore, Mr, Komisarjevsky ‘must be provided an opportunity to make a searching inquiry of and to attempt to xchabilitate any potential juror who appears to be excludable due to scruples against the death penalty. In particular, counsel must be permitted to explore whether the venire person could conscientiously apply the law and find the facts, notwithstanding his or her professed opposition to capital punishment. B. Life Qualification ‘A person who would automatically impose a sentence of death on the defendant upon conviction of a capital offense is unquestionably disqualified from sitting on a capital jury. Morgan, 504 U.S. at 729. “(T]he belief that death should be imposed ipso facto upon conviction ofa capital offense reflects directly on that individual’s inability to follow the law.... Any juror ‘who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law.” Id, 735. Such individuals clearly deem mitigating evidence irrelevant to the 1002/09/2011 WED 16:02 FAX 203 867 6240 NH CRIMINAL DIV penalty determination, despite the constivutional imperative that it must be considered. See, e.g. Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982). These bedrock propositions have spawned corollary principles relevant to voir dire, L ive jurors must be questioned about the aggravating factors and of! ts and circumstances in Mr. Komisarjevsky's case that might cause the jurors to impose ce ically, fail to weigh mitigating evi ise impai them from rendering an impartial verdict: and those prospective jurors whose attitudes or views would “prevent or substantially impair” them from discharging their sentencing obligations fairly and impartially in this case must be excused for cause. In order to sclect the fair and impartial jury to which Mr. Komisarjevsky is constitutionally-entitled, voir dire may not be limitéd to a potential juror’s views of the death penalty in the abstract. Rather, life and death qualification rust focus on the prospective juror’s willingness and capacity to discharge his or her sentencing obligations in the case at hand. The Supreme Court recognized in Morgan the lack of utility of “general fairness and ‘follow the law’ questions” in detecting individuals who were “unaltérably in favor of or opposed to, the death penalty in every case”; “a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or het from doing so.” 504 U.S. at 734-35. The vast majority of potential jurors, moreover, are unschooled in criminal law, and do not understand what a “capital offense” is, Laymen may mistakenly believe that the term embraces accidental killings, or those committed in self-defense, and just as firmly believe that a death sentence should be imposed for every intentioiial killing that is not in self-defense. See, 8, United States v, Fell, 372 F.Supp.2d 766, 773 (D.Vt. 2005) (juror “indicated that the death penalty should be applied to any intentional killing,” and when asked about factors that might support a life sentence, “‘she focused on whether or riot the [prosecution] had proven the killing WW fons02/09/2011 WED 16:02 FAX 203 $67 6240 NH CRIMINAL DIV beyond a reasonable doubt rather than on mitigating factors relating to the circumstances of the offense or the defendant’s background”), If asked if they could consider a life sentence for Mr. Komisarjevsky if he were to be convicted of capital murder, such people could honestly say “yes,” even though their views were actually disqualifying, Other individuals might consider a life sentence in certain circumstances (e.g,, if murder was committed under duress) but be adamantly in favor of a death sentence if only one statutory aggravator were present. Tn such instance, the potential juror would not be life-qualified — the juror would automatically impose a death sentence if the defendant was found guilty, and would refuse to consider any mitigating evidence. Accordingly, jurors must be informed of the'legal and factual elements of the charged capital offenses in Mr. Komisarjevsky’s case and questioned about their willingness and capacity to sit irapartially under such circumstances. See, e.g., Fell, supra; United States v, Johnson, 366 F Supp.2d 822 (ND. Towa 2005), As noted in Fell, Chief Judge Bennett's decision in Johnson “thoroughly and persuasively discusses” the issue of case-specific voir dire, concluding that itis both permissible and indeed necessary in order to properly explore juror bias — with respect to both aggravating and mitigating factors likely to be presented to the jury, relevant “status” factors in the case (¢.g., the defendant’s race and potential racial bias of jurors, his youth if this will be urged as a mitigating factor, his previous convictions for serious offenses), and the particular category of capital case at hand (denominated “case-categorization” questions). See Johnson, 366 F.Supp.2d at 834-50. Questions about a juror’s. willingness to impose death thet are too abstract — if defendant were convicted of murder, would you automatically vote to sentence him to death no matter what the facts are? — will not serve to uncover a bias in favor of death that, @or202/09/2011 WED 16:02 FAX 203 867 6240 NH CRIMINAL DIV ors besed on the facts actually at issue in the case at hand, would disqualify the juror from sitting. Id. 835, 847-49, People v. Cahill, again, illustrates what is at stake, There, the New York Court of | Appeals held that the trial court erred in denying a defense challenge to excuse prospective Juror [ 23 for cause as not “life qualified.” ‘The jurot’s questionnaire indicated that he leaned strongly in favor of the death penalty, believing that a murder defendant “should die, just as the vietim did.” 2.N.Y.3d at 44-45. During voir dire, however, he made a number of statements, “reassuring for the moment,” suggesting some willingness and capacity to consider life-without-parole generally. Jd. 45. Then, toward the end of examination by defense counsel, Juror 23 recounted an incident from his own marriage in which he had become violent with his wife. The factual circumstances underlying the murder charges against Mr. Cahill involved domestic violence (the victim was his wife), and the juror acknowledged that his past expetience was “causing him some concern as to = whether [he'd] be able to consider both penalties faiily” in Mr. Cahill’s trial and might “cause him some problems with being able to consider life without parole as the appropriate penalty | other than death.” [d, The Court of Appeals held that the trial court committed reversible error in denying defense counsel’s challenge for cause: | Prospective Juror 23 divulged that an incident in his life involving domestic violence — an issue highly rolevant to this case — would strongly color, if not, | dictate, his views as to the penalty. ‘The stated urged that the juror’s earlier statements regarding his ability to serve impartially established his suitability, ‘The juror’s expressions of open-mindedness, however, were undermined by his later responses. Once he acknowledged that his views on domestic violence would impede his ability to consider one of the two sentencing options, his earlier expressions of fitness rang hollow. 1d, at 46, Whether or not Juror 23 could have served! impartially in some other capital case, the particular circumstances involved in Mr. Cahill’s trial would have “strongly colored” or | 1302/09/2031 WED 16:03 FAX 203 867 6240 Nt CRIMINAL DIV ous “impeded” his ability to fairly consider life-without-parole for Mr. Cahill, and the trial court erred in refusing to excuse him. 2. Prost jurors must be questioned about their ability to weigh not only “mitigating evidence” in the abstract but also the particular kinds of mitigating factors Which the defense contemplates presenting or relying upon at a penalty phase hearing: and those venire members whose responses indicate they are unlikely to follow the law igh such types of mitigating evidence must be excused for cause, As noted, life and death qualification must focus on the juror’s willingness and capacity to discharge his or her sentencing obligations in the ¢ase at hand, not in some abstract, hypothetical case. Voir dire, then, must determine whether each juror can give weight to the mitigating evidence likely to be at issue. Potential jurors must be told more than, tautologically, that mitigating evidence is evidence that weighs against a death sentence; rather, before being required to respond to such questions, jurors must have some idea what mitigating evidence might be presented to them. Just as a juror who professes to be able to consider a sentence less than death for murder may actually have in mind only an unintentional killing or a killing in circumstances other than those alleged in Mr. Komisarjevsky’s case, so a juror who claims to be able to weigh mitigating evidence at a penalty phase hearing may have in mind only a certain, narrow category of mitigation (¢,g., that the defendant acted under some form of mental impairment at the time of the crime or was a relatively minor participant in the crime); such a juror mey be unwilling or incapable of weighing various other kinds of mitigating evidence, such as information about the defendant’s childhood and upbringing, Such a juror, if he or she is selected and deliberates in accordance with such beliefs, would act contrary to the law, The jurors must, at a minimum, “consider(} any constitutionally relevant mitigating evidence.” Buchanan v. Angelonc, 522 U.S. 269, 276 (1998); accord Eddings v, Oklshoma, 455 U.S. at 114-115 (1982) (“Just as the State may not by statute preclude. 1402/09/2011 WED 16:03 FAX"203 867 6240 NH CRIMINAL DIV @ous the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of Jaw, any relevant mitigating evidence.... [Sentencers] determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.”); Penry v, Lynaugh, 492 U.S, 302, 318 (1989) (“a sentencer may not be precluded from considering, atid may not refuse to consider, any relevant mitigating evidence”, “full consideration of evidence that mitigates against the death penalty is essential”), abrogated in part on other grounds, Atiins v. Virginia, 536 U.S. 304 (2002); ef. Williams v. Taylor, 529 U.S, 362, 398 (2000) (defendant’s “childhood, filled with abuse and deprivation,” was relevant mitigating evidence that “might have altered the jury's selection of penalty”); State v. Ross, 251 Conn. 579, 588 (1999) (“Concededly, ... roliability {in the capital sentencing process] requires that the sentencer have access to all relevant mitigating evidence. ‘Therefore, Mr. Komisarjevsky must be permitted to voir dire prospective jurors about their ability to weigh, not simply “mitigating factors” in the abstract, but the particular kinds of mitigating evidence Mr. Komisarjevsky contemplates relying on in whatever penalty phase may be result ftom the state's prosecution efforts, 3. Prospective jurors must be asked whether, if they convict Mr, Komisarjevsky of capital murder, they would pre to be the appropriate sentence or impose. Mr. Komisarjevsky the burden of proving the appropriateness of a life-without-the- possibility of-release sentence: and those prospective jurors whose responses indicate thi are unlikely to follow the law wit ed to burdens and standards of proof at a penal: earing must be excused for cau: The law grants complete discretion (o the jurors to individually determine whether a death sentence is appropriate in e particular case, If a defendant is convicted of capital murder, there is ‘no presumption in favor of a death sentence, nor do¢s the defendant shoulder the burden of proving that a sentence of life without te possibility of release is warranted. Seid another way, a 1502/09/2011 WED 16:03 FAX 203 867 6240 NH CRIMINAL DIV r Gore death sentence is by no means autoraatic. Accordingly, a juror who would presume death to be the appropriate sentence, require the defendant to shoulder the burden of proving that a life sentence is appropriate, or otherwise adhere to a personal standard of proof at odds with the law would be excusable for cause, ‘This is simply a variation on a rule well-settled in non-capital criminal trials. In @ none capital criminal case, any juror who suggests that he or she would require defense counsel to prove defendant's innocence, or who states that he of she would find it hard to acquit if the such statements cast serious doubt on the defendant failed to testify, is disqualified from servis potential juor's ability to render «fair verdict in acordance withthe law. ‘Thos, Mr. Komisarjevsky must be entitled to probe for this type of bias during voir dire of prospective | jurors. Indeed, voir die on this subject i particularly essential in ight of empirical research that demonstrates that many jurors reach a decision ata penalty phase bearing based on the faulty notion that death is the presumed sentence or that the defendant bears the burden of disproving its appropriateness. See Theodore Eisenberg and Martin T. Wells, ‘Deadly Confusion: Juror Instructions in Capital Cases, 79 ComellJ.. Rev. 1 (1993). C. Mr. Komisarjevsky Is Entitled to Explore Whether a Prospective Juror Would Be ‘Able and Willing to Adhere to His or Her Considered Personal Belief as to the Enistence of Particular Mitigating Factors, and as to the Appropriate Sentence, and in Turn Respect the Decision-making of Other Jurors. ‘Among the many respects in which jury decision-making at a penalty phase hearing differs radically from the role of jurors ata tial oa guilt or innocence, is the determination of the existence of mitigating factors which weigh against a death sentence, Rather than seeking, let alone expecting, unanimity, the Jaw requires eacti juror to decide individually, for him or herself, vi, ifany, mitigating factors exist and what weight to assign each established mitigating 1602/09/2011 WED 16:04 FAX 203 867 6240 NH CRIMINAL DIV four factor in reaching the ultimate decision on the appropriate punishment in this case. ‘Thus, if only one juror believes that a particular mitigating factor has been established, but his or her eleven counterparts disagree, this one juror is not only entitled, but indeed is obliged to weigh this mitigating factor in making the ultimate determination whether to vote for a death sentence or life imprisonment without the possibility of release. “The juror may not instead defer to the majority. See Mills v. Maryland, 486 U.S. 367, 384 (1988) (penalty-phase instructions, which prevented individual juror from considering mitigating circumstance unless entire jury unanimously agreed that it existed, violated Eighth and Fourteenth Amendments); McKoy v. | ‘North Carolina, 494 U.S. 433, 444 (1990) 444 (White, J., concurring) (majority opinion requires that “any juror must weigh in the balance any mitigating circumstance that in his or her mind is | established by a preponderance of the evidence, whether or not any other jurors are likewise convinced”); State v. Ross, 230 Conn, 183, 244 (1994) (“The jury need not unanimously find the same mitigating factor to have been proven by a preponderance of the evidence, So construed, our death penalty sentencing statute avoids the unanimity problem identified in McKoy, because our unanimity requirement does not interfere with the ability of each individual juror to consider and to give effect to any mitigating factor of which he or she is convinced by a preponderance of the evidenoe.”). Obviously, then, a juror who would defer to the majority and fail to weigh mitigating factors he or she believes exist because other jurors disagree, would be acting contrary to law and the Court’s instructions. Mr, Komisarjevsky, accordingly, must be allowed to question jurors about such potential inability or unwillingness to adhere to this legal standard for proving and | considering mitigating factors, and excuse jurors who indicate such disqualifying bies, 1702/09/2011 WED 16:04 FAX 203 867 6240 NH CRIMINAL DIV Bos ‘The same is true of the ultimate sentencing determination, In the punishment phase of a capital case, there is no “correct” sentence because the sentencing vote reflects a juror’s higbly | subjective, unique, individualized judgment. As previously diseussed, there is no presumption in | favor of death, nor is the jury ever required to impose a death sentence; perforce, neither is any | member of the jury. Accordingly, the law requires a’cépital juror to reach and adhere to his or her own, considered decision as to the appropriate sentence and not to defer or capitulate to the contrary view of other jurors. Mr. Komisarjevsky should be allowed to question prospective jurors about these | ‘important principles, to determine a juror’s ability both to stick to his or her guns in the face of discordant views concerning mitigating factors and the appropriate sentence to impose, and to | respect the differing views of other jurors on these issues. D. Mr. Komisarjevsky Must be Permitted Questioning Concerning the Juror’s Understanding of Whether Life Without the Possibility of Release Truly Means that if Such a Sentence Is Imposed on Mr. Komisarjevsky, He Will Never Be Released from Prison. IfMr, Komisarjevsky is convicted of one or iiore of the capital murder counts, the alternative to a death sentence is a sentence that he will be imprisoned for the remainder of his natural life without any possibility of release, Clearly, a juror who could not abide by such an instruction — in other words, a juror whose sentencing decision would be influenced by a belief i that a sentence of life without the possibility of release leaves open the possibility that the defendant will get out of prison — is a juror who cannot follow the lew, and he or she should be : disqualified, See Morgan v. Illinois, 504 U.S, at 728-29. Thus, the Court should permit exploration of a prospective juror’s willingness and: fapacity to follow the law regarding the | alternative life sentence, See, generally, Id. 733-34, 1802/09/2011 WED 16:04 FAX 203 867 6240 NH CRIMINAL DIV This is a critical subject, for empirical studies show that the possibility that “the defendant might be a danger to society in the future” plays a “pervasive role ... in and on the minds of capital sentencing jurors” and is “one of the primary determinants of capital-sentencing outcomes.” Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors ‘Think?, 98 Colum .L. Rev. 1538, 1559-60 (1998). And the availability of parole figures significantly in jurors’ perceptions of future dangerousness. As the Supreme Court has recognized, “it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant's future nondangerousness to the public than the fact that he never will be released on parole.” Simmons v. South Carolina, 512 U.S. 154, 163-64 (1994). Not surprisingly then, in capital jurisdictions where the alternate sentence to death is life with parole, empirical evidence has shown that “fear of the deferidant’s early release from prison” was one of the “primary concems” cited by jurors who chose a death sentence. See Marla Sandys, Cross- Overs: Capital Jurors Who Change Their Minds About the Punishment, 70 Ind. L.J. 1183, 1221 (1995). This fear is so acute that many jurors in these states admitted “that thoy voted for the eath penalty because the available altemative did not rule out parole; they chose the death penalty not because they thought it was the most appropriate punishment, but because it was preferable to what they believed the altemetive would be.” William J. Bowers & Benjamin D. Steiner, Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing, 77 Tex. L. Rev. 605, 705 (1999) (citations omitted). A death sentence imposed by a jury that includes even a single juror who mistakenly believes that the alternative sentence of “life imprisonment” would allow possible release from prison would offend the reliability requirements of the Eighth Amendment to the United States 19; @oisee ——_— Bo20 Constitution. Accordingly, prohibiting voir die about a jurors ability to abide by an instruction that the alternative to a death sentence is a sentence of life imprisonment without any possibility of release, would create a serious and constitutionally intolerable risk of seating a juror whose sentencing decision would improperly be skewed towards doath. Such a restriction would also violate the Sixth Amendment to the United States Constitution, guaranteeing “the impartiality of any jury that will undertake capital sentencing.” Morgan, 504 U.S. at 728-29, 733-34. Mr. Komisarjevsky should accordingly be allowed voir dire on this subject and those jurors who indicate they are unlikely to follow the Court’s instruction must be excused for cause, TI. JUROR QuEsTIONNAIRES Recognizing that the Court's stated refusal, based on a single experience, to permit the use of juror questionnaires in this case beyond the standard questionnaires employed by the Clerk's Office in every case (Le, “not agnostic” Mr, Komisarjevsky nonetheless seeks to use questionnaires. He makes this request pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, with Article I § 8 of the State of Connecticut Constitution, as well as in keeping with well established and settled practice both within this state and elsewhere, On information and belief, juror questionnaires are commonly used, particularly in complex cases and in capital cases. Beyond the Court's acknowledgement that questionnaires ‘were employed in the Peeler case and the undersigned’s knowledge that questionnaires were used recently in the DiMeo case, case law confirms (but does not speak substantively to) the use of Juror questionnaires in Connecticut, particularly in capital felony cases. See, ¢.g,, State v, Ross 269 Conn. 213, 245 (2004) (clerk handed out juror questionnaires to an estimated fifty venire persons); State v. Reynolds, 264 Conn. 1, 119 (2003) (excused juror “stated on his jury questionnaire that he could not serve as a juror because he did not believe in capital 2002/09/2011 WED 16:05 FAX 203 867 6240 Nt CRIMINAL DIV oot punishment”); State y, Dehaney, 261 Conn. 336, 348 (2002) (“indicated on the questionnaire that | she worried about the time commitment entailed with being a juror”); State v. King, 249 Conn. 645, 665 (1999) (“A.R. had failed to note his rejection from the state police on his juror questionnaire.”); State v, Webb, 238 Conn. 389, 453 (1996) (“prospective jurors who were | completing questionnaires inside another courtroom”)! Questionnaires are also used routinely in federel capital cases. See Molly Treadway Johnson and Laural L. Hooper, Resource Guide for | Managing Capital Cases, 36 (FIC Apr. 2004) (‘Neatly all federal judges who have had a death- penalty trial to date have used a written juror questionnaire to help inform the voir dire process and identify jurors who will be unable to serve.”); see also Benchbook for U.S. District Court | Judges, §3.01-Death Penalty Procedures (Sth ed.) (FIC 2007) (subsection (A)(5) suggests judges “[cJonsider having venire members complete a juror questionnaire, and consider providing attomeys with the responses prior to jury selection”); Cathy E. Bennett & Robert B. Hirschhorn, Bennett’s Guide to Jury Selection and Trial Dynamics § 8.16, at 112 (1993) (“Questionnaires are becoming routine in some states and acceptable in others.”). ‘The American Bar Association’s American Fury Project has spoken to propriety of questionnaires: In appropriate cases, the court should consider using a specialized questionnaire addressing particular issues that may arise. The court should permit the parties to submit a proposed juror questionnaire. The parties should be required to confer | on the form and content of the questionnaire. If the parties cannot agree, each party should be afforded the opportunity to submit a proposed questionnaire and to comment upon any proposal submitted by another party. | "As noted in Mr. Komisarjevsky’s Motion to Disqualify, questionnaires were not used in the ‘two prior death penalty prosecutions brought in the New Haven Judicial District, the Mills case or in the more recent Hayes case, due in large measure to the fact that New Haven Public Defender Thomas Ullmann, counsel for both Mills and Hayes, did not seek to use them, meaning. the defense never put the issue of questionnaires before the Court, 2102/09/2011 WED 16:05 FAX 203 867 6240 Ni CRIMINAL DIV Goze Jurors should be advised of the purpose of any questionnaire, how it will be used and who will have access to the information, All completed questionnaires should be provided to the parties in sufficient time before the start of voir dire to enable the parties to adequately review them before the start of that examination, American Jury Project, Principles for Juries and Jury Trials, Principle 11-Courts Should Ensure that the Process Used to Empanel Jurors Bflectively Service the Goal of Assembling a Pair and Impartial Jury, § A(1)-(3) (ABA 2005), The Commintary to Principle 11 adds: | Specialized [as opposed to basic] questionnaites are designed to obtain information more directly related to the issues in a particular case. They should be designed to permit the court and counsel to gain specialized information needed for effective voir dire in an efficient manner. There are several benefits to providing questionnaires to counsel before voir dire. First, repetitive voir dire questioning can be minimized. Second, prospective jurors may be more willing to divulge sensitive information on the written form than to discuss the same information in open court, Mary R. Rose, Juror's Views of Voir Dire Questions, 85 JUDICATURE 10, 14 (2001); Paula L. Hannaford, Safeguarding Juror Privacy: A New Framework for Court Policies and Procedures, 85 JUDICATURE 18, 20 (2001). ‘Third, the questionnaires, by | providing relevant information carly, permit the court and counsel to conduct a more focused voir dire, Valerie Hans & Alayna Jehle, Avoid Bald Men and. People with Green Socks? Other Ways to Iniprove the Voir Dire Process, 78 CHI- KENT L. REV, 1179, 1198 (2003), Lastly, questionnaires can reduce the number of citizens who spend time waiting to be questioned for a case on which they could never serve, In such instances, the parties can stipulate that some questionnaire responders can be sent to another courtroom. See, AMERICAN SOCIETY OF TRIAL CONSULTANTS, POSITION STATEMENT OF THE AMERICAN SOCIETY OF TRIAL CONSULTANTS REGARDING EFFORTS TO REDUCE OR ELIMINATE PEREMPTORY CHALLENGES (2004). See Jd. (“Use of a questionnaire is likely to shorten the time necessary for juror selection and permits both the court and counsel to make better informed de ions about the exercise of | ? Mr. Komisarjevsky stands prepared to confer with the state about a form and substance of a | written questionnaire. Hle has not done so to date given the Court’s previously stated disinclination to permit questionnaires and the state’s lack of express interest R:02/09/2011 WED 16:06 FAX 203 867 6240 NH CRIMINAL DIV Go2s challenges during the jury selection process.... The purpose of questionnaires is to shorten the time required for the voir dire, and thereby streamline the trial process.”). “The very essence of the voir dire is to unearth any latent bias or prejudice which may be present in the mind of a juror that would impact negatively on his or her ability to determine fairly the issues in a case.... Although a juror’s answers may not have risen to a level requiring removal for cause, the information elicited from the juror’s responses would have allowed defense counsel an opportunity to exercise intelligently her client's constitutional right peremptorily to challenge potential jurors.” State v. Bames, 16 Conn.App. 333, 340-41 (1988). In this regard, a primary goal of the juror questionnaire is to enhance honesty and candor in the voir dire process so that the Court and parties can identify factors related to the intelligent exercise of for cause and preemptory challenges. See 2/4/2011 Change of Venue Motion, Ex. A (survey establishing venire pool’s familiarity with case); see also Molly McDonough, Rogue jurors: Jurors With an Agenda Can Batter Justice, and Experts Fear There Are More Than W ‘Suspect, ABA Joumal (Oct. 2006) (“Los Angeles based jury consultant Philip K. Anthony .. says his research indicates that between 15 percent and 18 percent of potential jurors wo are summoned for service have a biased mindset and actively seek out jury service as a way to ‘comment on or influence a trial."). The honesty and candor of a venire panel is often inhibited by the situation of and conditions surrounding voir dire, See generally, National Jury Project, Enetors Affecting Juror Candor in JuryWork: Systematic Techniques, § 2.03 (2d ed.; Elissa Krauss, General Baitor, and Sonia Chopra, Ph.D., Associate Editor) (West 2003). {As an example, most people, when aware they are being evaluated, become concerned with performance and perspective. This concer, sometimes called “evaluation apprehension”, influences responses, See, €.g, Milton J. Rosenberg, When Dissonance Fails: On eliminating 2302/09/2011 WED 16:06 FAX 203 867 6240 NH CRIMINAL DIV Goze Evaluation Apprehension From Attinide Measurement, 1 Jml of Social Psychology 28 (1965). Even without intending to do so people devote considerable attention to learning what factors have a positive influence on how they are received or evaluated, and they adopt behavior that will enable them fo leave a potentially embarrassing situation as quickly as possible, See Robert M. Arkin, et el., Social Anxiety, Self Presentation and the Self-Service Bias in Causal Attribution, 38 Jmnl of Personality and Social Psychology 23 (1980). In the context of voir dire, faimess and impartiality are the most positive or socilly desirable characteristics to be portrayed. The tendeney of individuals to portray themselves in the most socially desirable light (i., fair rather than unfair, honest rather than dishonest) is well documented on social science literature. See, €., Marlow Crown, Social Desirability and Response to Perecived Situational Demands, 25 Jml of Consulting Psychology 109 (1968). This tendency increases with the presence of others. The public nature of voir dire can thus inhibit individuals from giving frank and open responses to questions asked, particularly where one knows he or she will be excluded or included based on the answers given. Its also reasonable to expect that individuals may feel a natural reluctance or an interest in minimization when asked to share or reveal, in open court (ie., to strangers before a judge while having a court reporter transcribe every word), biases, prejudices and/or embarrassing or personal experiences. Such trepidation is obviously’ exacerbated in this case by the anticipated media presence, which, if anything like the Haves tial, will entail numerous members of the press, many publicly recognizable, listening intently t6 and taking notes concerning each called venie person's every word. Notably in this regard, the American Jury Project has called for courts to adopt measures, like questionnaires, to protect venire panel members” privacy. American Jury Project, Principles for Juries and Jury Trials, Principle 7-Courts Should Protect02/09/2011 WED 16:06 FAX 203 967 6240 NH CRDHINAL DIV ozs Juror Privacy Insofar as Consistent with the Requirements of Justice and the Public Interest, § A(S) (ABA 2008) (“Courts should consider juror privacy concems when choosing the method of voir dire (open questioning in court, private questioning at the bench, or a jury questionnaire) to be used to inquire about sensitive matters.”). The unmistakable reality is that how a prospective juror can reasonably be expected to respond in private is quite different from how he or she may respond in a group sctting(s). See, e.2,, Seventh Circuit Bar Ass’n Am, Jury Project ‘Comm'n, Project Manual, a I-1 (2005) (“tthe judges who use questionnaires believe they streamline the jury selection process for several reasons ... prospective jurors may be more willing to disclose sensitive information in waiting than they would be if asked to do so in open court,..."). i In terms of potential biases that prospective jurors may bring to this case, one of the more obvious is the impact unprecedented level of media coverage surrounding this case and the companion prosecution of Mr. Komisarjovsky’s co-defendant Steve Hayes, as reflected in Mr. Komisarjevsky’s change of venue motion. Along these lines, the Court has recognized that Mr Komisarjevsky will never be able to empanel « jury of people who have never heard about the case, A questionnaire wil far better enable Mr. Komisarjevsky, as well a the Court and the state, identify what venire persons already ‘know’ (appreciating that ‘knowledge’ may be based on inaccuracies), how that information impacts their individual predispositions toward this case generally and toward Mr. Komisarjevsky specifically, and potentially ameliorate the prejudicial impact of the extensive pre-trial publicity. See ABA Criminal Justice Standards, Fair Trial and Free Press, Standard 8-3.5(b) (“The court should exercise extreme caution in qualifying a prospective juror who has either becn exposed to highly prejudicial material or retained a recollection of any prejudicial material."). Additionally, a questionnaire will assist in unearthing 2502/09/2011 WED 16:07 FAX 203 867 6240 NH CRIMINAL DIV @oze individuals true feelings about the death penalty, which is of particular coneem given that more than three-quarters of the state supported the death penalty for Steven Hayes following the conclusion of the guilt/innocence phase in the Hayes.case. Soe Jon Lender, 76% Back Death Penalty for Hayes, New Poll Shows, Hartford Courant (Oct. 13, 2010) (discussing findings of Quinnipiac University poll), The use of questionnaires also allow Mr. Komisarjevsky to lear about prospective jurors’ thoughts, feelings, biases, etc. as it concems more personal matters that are likely to be issues in this case. This includes, but is not limited to, the senseless deaths of multiple young victims, mental illness and mental health, traumatic life events, dmg addiction, interfamilial dynamics, sexual assault and/or victimization, religious belief, good versus evil, acceptance of personal responsibility and redemption. Obviously the privacy questionnaires afford facilitates ‘more candid and contemplative responses while shielding information provided, which may be highly sensitive and/or emotion evoking, from the glare of the spotlight that shines perpetually on | this case, Again, the American Jury Project supports such an approach: The jury is the comerstone of democracy in the judicial branch of government. Unlike participation in most other institutions associated with democracy, however, jurors do not voluntarily choose to serve, Indeed, jurors are compelled to perform their duties or risk prosecution. As a part of their service jurors may be subjected to intrusive questioning and may be compelled to disclose highly personal information. This Principle recognizes that, in certain circumstances, jurors may have a legitimate interest in protecting their privacy and encourages ‘courts to consider and, where possible, protect jurors’ legitimate concerns | regarding personal information, Such an approach is not only protective of jurors’ interests but likely to foster juror participation and candor during jury sclection.... ‘When examination involves very personal ot potentially emberrassing or harmful information courts should consider the use of in camera examinations or a written questionnaire... Questionnaires permit jurots to reveal sensitive or personal | 26 |02/09/2011 WED 16:07 FAX 203 867 6240 NH CRIMINAL DIY information in their written responses, rather than publicly, Such techniques serve to alleviate some of the discomfort that prospective jurors would otherwise feel. American Jury Project, Principles for Juries and Jurv Trials, Principle 7, Commentary. Finally, within the realm of judicial economy, supra, questionnaires also serve to protect the appellate record in that they function to militate against a claim of inadequate voire dire. See, 2.2 United States v, Ortiz, 315 F.3d 873, 888 (8th Cir. 2002) (“a questionnaire of 103 questions”); United States v. MeVeieh, 153 F.3d 1166, 1208 (10th Cir. 1998) (“an extensive questionnaire”). ILL. Jury Seecrion Loaisrics Mr. Komisarjevsky requests rather than the approximate 45 person venire panels that the Court called twice per week in the Hayes trial, the Court call as many individuals as the jury assembly room can reasonably accomumodate (¢.g., 152 fixed seats on the ninth floor assembly room in New Haven, though, on information and belief, additional seating could be accommodated; but see Motion for Change of Venue). On that day(s), summonsed jurors will be assembled, and the Court would deliver a prepared statement that has been reviewed by the parties for comment and/or objection. This statemerit will summarize the charges in the indictment and discuss general principles governing a criminal trial, the death penalty, the role of the jury, and scheduling. The Court would then inquire about potential hardships and knowledge about the parties and/or the case that might disqualify any venire person from serving. Once the Court has given this instruction and made this inquiry, questionnaires would be distributed to each venire person. Both parties would receive six (6) copies of each completed questionnaire, The parties would simultaneously exchange lists of jurors who have legitimate hardships or, whose answers on the questionnaire are extreme or otherwise problematic such that 27 oz702/09/2011 WED 16:07 FAX 203 867 6240 NH CRIMINAL DIV ozs calling the jurors back for questioning would not be necessary (i.e., the presumptive “for cause” list). Whereas the Court would retain the option of reviewing the parties” lists or accepting the partics, mutually agreed upon decisions, this ‘culling’ process is an enormous time saver. We expect that the initial culling process would take’three weeks. ‘The remaining panel members would then be notified to return for individual questioning in groups of six to eight. These numbers can be adjusted up or down as the process unfolds. On the day the jurors return, each venire person would appear for individual voir dire, We ask that the Court conduct individual voir dire in a Jess formal setting than the courtroom, such as the jury room in order to put venire persons at ease, i At the conclusion of each panel members individual voir dire, he or she will be temporarily excused and the Court immediately would hear and decide any cause challenge. Those not struck for cause would be sent home with instructions to remain on call. This process will continue until dhe number of qualified jurors suficient forthe main panel and the alternate panel is reached, accounting for both parties’ preemptory challenges. We suggest that the Court pre-qualify eight-to-ten additional main panel jurors and four-to-six additional alternates in the ‘event that one or more of the jurors selected by the parties becomes unavailable prior to the jury being swom. The qualified jurors and alternates would then be notified when to return to Court for the last step in the jury selection process, when the parties would exercise their preemptory challenges. : IV, ADDITIONAL PREEMPTORY CHALLENGES Recognizing that the Court has already discussed giving both the defense aud the state 39 | preemptory challenges, as was done in State v, Hayes, Mr. Komisarjevsky secks additional | preemptory challenges, specifically twice as many aé the state may be provided. He makes this 2802/09/2011 WED 16:08 FAX 203 867 6240 NH CRIMINAL DIV @o20 uy request pursuant to the Fifth, the Sixth and the Fourtgenth Amendments to the Constitution of the United States and Article I, § 8 of the Connceticut Constitution, A tral court's ability to allow a party more pieemptory challenges than what the law and rules of practice normally permit is well established., See State v. Dav, 233 Conn. 813, 845 (1995); see ABA Criminal Justice Standards, Fair Tvial and Free Press, Standard 8-3.5(¢) C Whenever there isa substantial likelihood that, dup to pretrial publicity, the regulerly allotted number of peremptory challenges is inadequate, the court should permit addtional challenges to the extent necessary for the impaneling of an impattal jury.”). Not only are there “numerous circumstances under which trial courts may peretida need to grant additional challenges not required by law” but awarding additional challenges is “highly unlikely to cause harm.” Kalams v.Giacchetto, 268 Conn. 244, 261-62, 263 (2004). ft is nota question of attempting to shape the jury to one party's advantage. “Proemptory challenges are... not for the purpose of securing a {ty biased for one's side or against the opponents side. On the contrary, a primary purpose of| preemptory challenges is to help secure mm impaitialjury, They permit each party to reject, certain prospective jurors whom they believe, buit cannot demonstrate, harbor some latent ion.” Carrano v, Yale-New predisposition against their position or for the opponent's po: Haven Hosp,, 279 Conn. 622, 638 (2006) (citation omitted). In this case, itis clear and the Court has ecdowiedged that many potential jurors have been exposed to much information about this ease fom various sources, which may give rise to latent predispositions about both Mr. Komnsatjevsky's guilt and the appropriate punishment. This reality is reflected in Mr. Komisarjevsky's uses of venue motion filed February 4, Moreover, if this ease ultimately reaches a penalty phase, Mr. Komisarjevsky has the atypical ‘burden in a criminal case of proving factors that sinport life over the state request for death. In i02/09/2011 WED 16:08 FAX 203 867 6240 NH CRIMINAL DIV oso this regard, empirical research and case law strongly suggest that the defense and the prosecution do not begin on equal footing in a capital case. By providing an even number of peremptory challenges for the state and for the defense, the Couk perpetuates the bias inherent against the defendant in a capital case and fails to account forthe prejudicial effect of the desth qualification Process to the defendant, which .renders jurors both more likely to vote guilty and more likely to vote in favor or the death penalty, See Craig Haney, On ion of Capital Juries: The Biasing Effects of Death Qualification, 8 Law and. Human Behavior 121 (1984). Moreover, the nature of the qualification process results in, the sate generally gaining many more challenges for cause than the defense, Finally, the nature of telesimes here; a societal anti-defendant bias, specifically an anti-Joshua Komisarjevsky bias; and hnedia coverage all contribute toa pro- prosecution jury pool that must be modified through’ the grant of more preemptory challenges to t the defense, i V. TWO ATTORNEYS TO QUESTION EACH VeNmRe Person, As NEEDED Mr. Komisarjevsky seeks to have two attorneys question each venire person, as needed. He makes this request pursuant to General Statutes §§ 54-82f and $4-82g, Practice Book §§ 42- 12 and 42-13, the Sixth and the Fourteenth Amendments to the Constitution of the United States 5 and Article I, § 8 of the Connecticut Constitution. Our courts have consistently equated the coimimon law right to trial by an impartial jury, Which was incorporated into the state constitution in| 1818, to that afforded under the federal [ constitution: “Jury impartiality is a core requirementiof the Tight to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by jhe sixth amendment to the United States constitution. The right to jury trial guarantees to thelcriminally accused a fair trial by a panel of | impartial, indifferent jurors.” State v. Griffin, 251 Conn. 671, 695 (1999) (citations omitted), 3002/09/2011 WED 16:08 FAX 203 867 6240 NE a piv Boat It “The right to question each juror individually by counsel shall be inviolate.” Conn. Const, amend IV. In part, General Statutes § S4-82f provides: “In any eriminal ation tried before a jury, either party shall have the right to cxarhine, personally or by his counsel, each juror outside the presence of other prospective jurors as iojhis qualifications to sit asa juror in the action...” : Counsel is entitled to as much latitude in voix dire as is necessary fairly to accomplish the two-fold purposes of the examination: to permit the’ trial court to determine whether the prospective juror is qualified to serve and to aid the parties in exercising their rights to preempiory challenges. State v. Dolphin, 203 Conn, 506, 512 (1987); State v. Higgs 143 Conn. 138, 142, (1956). Additionally, individual voir dire creates a personal interaction — if positive, a vapport - between the attorney and the potential ju, which results in an assessment of the juror by the atiomey and vice versa, See Jefitey T. Frederick, Effective Voir Dire, The Compleat Lawyer, 26-30 (Summer 1997) (“Establishing rapport with jurors” leads to jurors who “are more willing to be open and candid in their answers, Capital defense differs from non-capital criminal cases in thatthe defendant is entitled to two altorneys (not just one), who share responsibilities inthe handling and presentation of the case, See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Eenalty Cases, Guideline 4.1(A)(1) (Feb. 2003).. Although there is one attorney identified “lead” counsel, capital defense attomeys operate as a tean.' Id. Guideline 10.4. Respectfully, this difference from non-capital ctiminal defense case representation must be reflected inthe voir dre process, : Capital cases also differ in that jurors paitici pate ina trial’s traditional guilt/innocence phase as well as potentially in a penalty phase wherein they must to decide whether life without02/09/2011 WED 16:09 FAX 203 867 6240 NH CRIWINAL DIV @osz the possibility of parole is the appropriate punishment or, as the State wants, it should execute the | defendant, ‘The effective use of preemptory challenges thus takes on a heightened importance in capital cases, making the use of multiple attorneys during voir dire all the more essential. See | ABA Guidelines, supra, Guideline 10.10.2-Commeatary (‘Tury selection is important and is all the mote critical, complex in any criminal case. In capital cases, Just as in an non-capital criminal case, it is necessary and appropriate in a capital case for counsel, which by definition is more than one attomndy, to be able to interact, as necessary, with each potential juror. The right to individual voir dire is denied cases unless the participation of mpultiple attorneys is permitted. I The reasons that we request that two attoineys be allowed to conduct voir dire are that | different attorney's may be primarily in charge of differen portions of the defense case, soit would be useful if the attomey conducting that part of the case be permitted to conduct voir dire concerning that portion of the case or generally be able to communicate with a prospective juror directly prior to the start of evidence. Dividing Voir dire between two attomeys will allow each attomey to be better prepared and more effoctivé, since each attorney will concentrate upon a | particularized area of inquiry. Voir dire by two attorneys will allow both the defense and the prosecution to observe the venire person’s response to different styles of questioning. Inquiry by two attorneys will assist in determining whether a potential juror reacts particularly favorably or unfavorably toward one of the defense team, Tn addition, given that the voir dire of each prospective juror will be lengthy, it may be more interesting to the venire person to speak with a number of different persons. Finally, voir dire by two attorneys will take no longer than voir dire by asingle attorney, since each attorney will ask the same questions that a single attorney would02/09/2011 WED 16:09 FAX 203 867 6240 NH CRIMINAL DIV ask. Permitting the use of two attorneys will result if a more effective and more efficient manner of questioning potential jurors. The undersigned assure the Court that if the requested relief is granted, tho usc of two attomeys during voir dire will be conducted in an orderly, non-repetitive and professional manner. We, ofcourse, would have no objection ifthe state should also request voir dre by two attorneys. i ‘VI. SHOW VENIRE PERSONS PHOTOGRAPUS OF THE VICTIMS Mr. Komisarjevsky seeks to show venire perfons photographs that, on information and beliof the State intends to introduce into evidence ad part ofits case-in-chief, specifically photos of the victims against whom Mr. Komistyjevsky is alleged to have committed capital felonies, He makes this request pursuant to General Statuies § 54-82f, to Practice Book § 42-12, to the Fifth, Sixth, and Fourteenth Amendments to the Corson of the United States and to Article I, §§ 8 and 19 as amended by art. IV of the Connectifut Constitution Under the Sixth Amendment, a criminal defendant has an absolute right toa trial by an impartial jury. Reynolds v, United States, 98 U.S. 145, 154 (1875). “That right is compromised ‘when the trier of fact is unable to render asinterested, objective judgment.” United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir.'1984). It ‘ equally well established that in conducting voir dire, counsel is entitled to as rmuch latitude as is; necessary faisly to accomplish the two-fold purposes of the examination: to permit the trial cont to determine whether the prospective juror is qualified to serve and to aid the parties in exereisag their rights to preemptory challenges. Soe State v. Dolphin, 203 Conn, $06, 512 (1987); suse Cubano, 203 Com. 81, 91 (1987) (“a Jjuror’s assurences that he or she is equal to the task dre not dispositive of the rights of an accused"); State v. Higgs 143 Conn. 138, 142, (1956) (“Clearly, therefore, if there is any 33 Boas02/09/2011 WED 16:09 FAX 203 867 6240 NE CRIMINAL DIV Boss t { likelihood that some prejudice is in the juror’s mind Which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice.”). Whenever thee a likelihood that prejudice, bias, patialiy, eto. may exist in a prospective juror, the degree of Istnude is extended to uncover fully the cause for concern. See State v. Rogers, 197 Con, 314, 318 (1985); see also ULS. ex re, Peterson v, Chrans, 735 F.Supp. 269, 271 (ND.Ill. 1990) (“Bias appears in many ways, and seldom gives advance waming, ‘The instant case follows very closely on the Heels ofthe state’s capital prosecution of co- | defendant Steven Hayes, wherein Hayes worked quite zealously and, ifthe media's perception is any barometer, effectively to portray Mr. Komisarjeysky as the more culpable of the two defendants notwithstanding Hayes’s admissions hate raped and strangled Jennifer Hawke Petit | and that hei he one who poured he gasoline, which accelerated the fre the smoke from which caused the deaths of the two Petit daughters. Asa result of Hayes’s tral tactics, Mr. Komisrjevsky has ben pine In an exteme si yniversallyecepted prude of, ‘more precisely, in an even more negative light than éxisted before the start of the Hayes trial Compounding the public perception with which Mr. Komisarjevsky must contend as he prepares for the staggering task of selecting a “fair and impartial” jury is the known impact of the evidence to be presented through the State's case-in}chie, Of particular concer for Mir. Komisarjevsky are the photographs depicting the deceased victims, ‘The undersigned, who were present when the photographs were introduced into evidence during the Hayes trial, believe that the impact of this evidence on the jury cannot be overstated, ‘There are numerous examples that bolster this belief, from the trial record as well as from the public record that has developed since the [ayes trial: 3402/09/2011 WED 16:10 FAX 203 867 6240 Ni CRIMINAL DIV Boss (a) The Court (Blue, J.), which had denied Hlayes’s pre-trial request to show the Photographs to venire persons, deseribed the photographs to venire persons during jury selection as “graphic evidence ... hottie as ever seen” while saying separately “I'ma veteran and I’m troubled by thi pietures I’ve seen in this case... [T]he pictures. are really bad” and cause understandable] emotional reactions.” Moreover, once evidence began, the Court was so affected that it, in the view of the defense, overstepped the bounds of judicial objectivity and impartiality, suggesting to the jurors that they “hug” one another for solace. 9/15/10 Tr. 155; see Defendant Komisarjevsky’s Motion to Disqualify (fea 2/4/2011). Later, just before excusing the jury at the conclusion of the penalty these, the Court characterized the jury’s service as “a profound time consuming ahd emotionally searing assignment.... You have been exposed to images of depravity and horror that no human being should ever have to view.” 11/8/10 Tr. 54 Gus added), The Court added: “This case has, obviously, been a curse and burden for you and for me, and for all of us." Id. $5. Subsequently, during the course of a post-trial motions hearing in Hayes, the Court, responded to Mr. Hayes's concern about a juror who admitted to “persistent nightmeres during the course of the trial ,.. a night that is taking place of an eleven ‘year old tied up and burning” by saying: “It would be the rare human being who did not have nightmares.... But this is evidence, and the fact of the matter is that your client left in his wake a scene of unimaginable horror.... And the idea that the i > On information and belief, this quoted language is accurate or substantially accurate based on the observations and note taking by members of Mri Komisarjevsky’s defense team while observing jury selection in State v. Hayes. Unfortunately, Mr. Komisarjevsky has to date received only one of six ordered jury selection transtripts from the Hayes case.92/09/2011 WED 16:10 FAX 203 867 6240 NH CRIMINAL DIV Bose defendant is not entitled to a jury of robots; he is entitled to a jury that’s going to | consider the case on the evidence, and the fact that the evidence would give almost | any reasonable human being nightmares, this is evidence created by your client, it’s nota reason to undermine the verdict” 11/24/10 Tr. 20-21 (emphasis added). When Hayes argued about the propriety ofa dedision “driven by emotions and some of them having those kind of nightmares during trial,” the Court answered: “Emotions, but ‘here the emotions and the evidence are tied together.” Id, 21-22 (emphasis added); but see State v. Couture, 218 Conn, 309, 319 (1991) (“A criminal jury’s sole function is to set aside the personal prejudices of ifs individual members, to weigh dispassionately the evidence set before it and, on the basis of the trial court’s | instructions, to determine whether the state has proved the defendant's guilt beyond a reasonable doubt.”). i L (b) The Judicial Branch, for the first time in the State’s history, extended an offer of assistance to the jury, a post-traumatic stiess session at the courthouse two days after the jury announced its penalty phase verdict. Randall Beach, State offers Haves jurors | post-traumatic stress assistance, NH Register Al (Nov. 10, 2010). According to Melissa Farley the Judicial Branch’s Exéoutive Director of External Affairs, “It's not therapy. T's an opporcunity for the jurors to spend time with someone who has expertise dealing with traumatic stress. The jurors will be able to talk through what they've been through.” Id, A7. : (©) Nearly two months after the conclusion of the penalty phasc proceedings, jurors from that case reported difficulty sleeping, ines from the trial popping randomly and disconcertedly into their heads, nightmares involving a little girl tied to a bed crying t 36. | |02/09/2011 WED 18:10 FAX 203 867 6240 NH syns DIV @os7 for help, and crying at thoughts of the victims, See William Glaberson, Harrowing Cheshire Case Still Haunts Jurors, NY Times CT 1, 4 (Dec. 31, 2010). @ Even those with prior courtroom expetienice, who witnessed the proceedings, report problems. New Haven Register repoiter and columnist Randall Beach recently submitted: “I’m sure all of us who endured that trial — the victims” families and supporters, jurors, media, court personnel, spectators and attorneys — were deeply affected by it. How could anybody ever forget the testimony about those horrible events in the Petit home?” Randall Beach, Sketch artist begins to heal from horrors of Hayes tial, NH Register (Jan. 23, 2011). Previously Mr. Beach described his experience on the day that led the Court to propose hugs: The most emotionally challonging patt of the trial came on the third day. We had known the crime scene photos of the three victims would be introduced into evidence for the jurors to see. Others in the courtroom would not see those pictures, but reporters would have the option later that day. We watched the jurors’ stricken reactions — some of them weeping — as one by one they opened the manila folders and looked at the charred bodies, After court adjourned, it was our tum to sit in the jury box and open those folders. ‘This was one of the most dilficult things I have ever had to do as a reporter oras ahuman being. Hawke-Petit’s sister, Cynthia Hawke-Renn, has said there are images the family wishés they could get out of their minds. The reporters who saw those photos have'the same wish. Yes, reporters are having these nightmares too. Randall Beach, 1 down, 1 to go in nightmarish Cheshire triple-slaying case, NH Register (Nov. 26, 2010) (emphasis added). Again, having been present on that day, the undersigned add, and the Court (Blue, J.) surely also observed, that not only were jurors weeping but so too were spectators, including seasoned members of the media. 3202/09/2011 WED 16:11 FAX 203 867 6240 NT CRIMINAL DIV ‘These individuals behind the bar could not see the images; they wept based on their observation of the jurors and the general-atmosphere of the courtroom. (©) When Mr, Beach interviewed Claudia Wolf, a sketch artist who worked on the Hayes trial, she “said those faces are ‘embedded’ in her. ‘This trial changed me. I will heal, ‘but I will carry this underlying uneasiness with me for a long time.’... She said she is getting calmer now, but during the trial she had trouble sleeping. ‘AL those things going through my mind; just unspeakable things.” Beach, Sketch artist, supra. In order to uncover any prejudice or influence, emotional or otherwise, that could affect the outcome of the trial, Mr. Komisarjevsky seeks {0’ show prospective jurors select photographs that the State intends to introduce into evidence, antivipating that it would not ocour until a venire person has moved well into the selection process. If the photographs do depict, as the Court has said, a scene of “unimaginable horror,” then no words describing those photographs to ‘enite persons will prepare them for what they cannot imagine and no assurances given by a -venire person can include the unimaaginabie. This procedure is thus essential to ensure that a fair and impartial jury is selected in this case. The natuie of the evidence will undoubtedly engender varying degrees of emotion in potential jurors making itis necessary to ascertain prior to trial whether these emotions will affect their ability to serve or their respective partiality. Said another way, allowing jurors to view the photographs before being selected affords them, as well as counsel and the Court, the opportunity to evaluate accurately whetber they have the cmotional strength, endurance and perspective to view the evidence objectively and dispassionately, as the law requires, or whether they desire to serve. Related to this, it provides a basis of meaningful inquiry relative to the potential for trauma stg like those that members of the Hayes jury reportedly experienced and which both the Court and the Judicial Branch acknowledged. 38 Boss02/09/2011 WED 16:11 FAX 203 867 6240 NA CRIMINAL DIV @os9 In cases involving the death of a young child, itis especially important to ascertain whether images of the child will impact a potential juror’s ability to remain impartial. See United States v. Thompson, 744 F.2d at 1068 (reversible error not to excuse a juror who, upon seeing a picture of the deceased young child, expressed doubts about ability to be fair). Not only will this accommodation assist counsel and the Court in empanelling a jury that can be fair, impartial, disinterested, objective and open-minded, supra, it will lessen both the risk United of needing to excuse a juror(s) for cause mid-trial and the risk of a mistrial. See, States v. Tavlor, 594 F.2d 200, 202 (Sth Cir. 197). | In sum, this procedure serves voir dire’s purpose by allowing the Court to better determine whether a venire person is qualified to serve and by aiding counsel in the exercise of preemptory challenges. VL Jury SEQUESTRATION Mr. Komnisarjevsky seeks to have the jury sequestered from the point of empanelment through the conslasion of the tal in the above-captioned matter, including any penalty phase proceeding. He makes this request pursuant to Practice Book § 42-22, the Fifth, the Sixth and the Fourteenth Amendments to the Constitution of the United States and Article I, § 8 of the Connecticut Constitution. | Practice Book § 42-22 provides: “Ifa case involves the penalty of capital punishment or imprisonment for life or is of such notoriety of its issues are of such a nature that, absent sequestration, highly prejudicial matters ate likely to come to the jury's attention, the judicial authority, upon its own motion or the motion of either party, may order that the jurors remain together in the custody of an officer during the tral‘and until they are discharged from further | consideration of the case... A motion to sequester inay be made at any time. The jury shall not 395,02/09/2011 WED 16:11 FAX 203 867 6240 NH CRIMINAL DIV oso be informed which party requested sequestration.” The instant case satisfies both enumerated prerequisites for sequestration, Regerding notoriety, it is difficult to identify a case that has gamered as much media | attention and scrutiny as the instant case, As but oné example, Mr. Komisarjevsky filed | numerous motions at approximately 3:30pm on Friday, February 4. Not only did the Hartford Courant have a story oncine by 4:40pm, bur stores dovering the motions have, as ofthis witin, appeared (in print and/or on-line) in, among other publications, the Courant, the New Haven, Register, the Waterbury Republican-American, the Meriden Record-Journal, the Middletown Press, the Connecticut Post, the New York Post, the Atlanta Journal-Constitution, and the Daily Mail (UK). This widespread attention comes as n¢ surprise to any party even remotely tied to this case, or that of Mr. Komisarjevsky’s co-defendant Steven Hayes. The Web site for the Hartford Courant, Connecticut's most highly circulated newspaper with 134,751 daily subscribers, has a section captioned “Joshua Komisarjevsky” that contains at least 143 articles which were published either in print or on-line, (Thee “Steven Hayes” section contains at least 186 articles). Similarly, a search of the Web site for the New Haven Register, which has a print circulation of 70,124, reveals 453 individual articles. And, national outlets such as USA Today | (Circulation 1.8 million) and The New York Times (circulation 1.4 million) have entire sections of their respective Web sites dedicated exclusively to coverage of this case. Jurors’ intentions are immaterial to the considerations underlying a request such as this, | Rather, media coverage of this case is such that, no!matter how well intentioned the jurors, it will | be neatly impossible to avoid exposure to information that might deprive Mr. Komisarjeveky of his right to a fair trial with due process and an impattial jury. 4002/09/2011 WED 16:12 FAX 203 867 6240 NH CRIMINAL DIV oar WHEREFORE, for all of the reasons sét forth above, together with such other reasons as. may be advanced in any conducted in connection herewith, Mr. Komisarjevsky respectfully asks that the requests herein be granted, Respectfully submitted, JOSHUA KOMISARIEVSKY, Defendant ~ LOL : bd bal JEREMIAH DOMOVANY JN 305346 WALTER C. BANSLEY, Ill, JN 407581 123 Elm Street--Unit 400 Bansley Law Offices, LLC P.O, Box 584 20 Academy Street Old Saybrook, CT 06475-4108 «. 'NewHaven, CT 06510 (860) 388-3750; Fax: (860) 388-3181 (203) 776-1900; Fax: (203) 773-1904 donolaw@sbeglobal.net ‘Bansley3@BansleyLaw.com ——— S. . ‘On the Motion/Memorandum “A; BUSSERT; ‘Daria Berkowska, Certified Legal Intern 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495-9795 thussert@bussertlaw.com Attorneys for Joshua Komisarjevsky ORDER ‘The foregoing Motion having been considered, it is hereby Ordered: GRANTED / DENIED THE COURT