02/04/2011 17:02 FAX 203 503 6884 SUPERIOR COURT oor STATE OF CONNECTICUT DOCKET NO. CRO7-241860 : SUPERIOR COURT STATE OF CONNECTICUT, + JUDICIAL DISTRICT FOR NEW HAVEN - : , ‘of Now Haven x. ATNEWHAVEN Jugal Page gouRr JOSHUA KOMISARJEVSKY. : FEBRUARY 4, 2011 FEB 04 2011 DEFENDANT JOSHUA KOMISARJEVSKY’S MOTIQNIEF CLERK'S OFFICE REGARDING USE OF ELECTRONIC DEVICES AND BROADCASTING AND POINTS AND AUTHORITIES IN SUPPORT THEREOF COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel and pursuant to Practice Book §§ 1-10 to 1-11, the Sixth and the Fourteenth Amendments to the Constitution of the United States and Article I, § 8 of the Connecticut Constitution, and respectfully moves the Court to prohibit the use of electronic devices by spectators (ie., anyone other than counsel and their respective teams or courtroom personnel) during the course of all ‘court proceedings in the above-captioned matter. In support of this request, Mr. Komisarjevsky states as follows: 1. Im the case against Mr. Komisatjevsky's co-defendant Steven Hayes, the Court (Blue, J), without a hearing or defense objection, permitted spectators (i. those behind the baz) both to possess electronic devices in the courtroom and to use of electronic devices to broadcast the Hayes trial. But see P.B. 1-11). The media’s broadcasting from the courtroom included, among other things, the names of the minor victims and detailed descriptions of evidence concerning the sexual offense charges ~ reporting that we believe was inaccurate or misleading as it concemed Mr. Komisarjevsky, therein serving to prejudice him and his right to a fair tril02/04/2011 17:02 FAX 203 503 6884 SUPERIOR COURT @oo2 The reality of the judicially enabled broadeast is reflected in the media’s coverage of how the ‘media covered the Haves trial (so pervasive was the coverage of the case): No television cameras were there to record the scene, but people around the state and beyond in offices and family rooms still followed every word. The medium? Twitter. Half a dozen reporters for mainstream Connecticut ‘Newspapers and television stations clicked out reports of up to 140 characters on iPads, smartphones and laptops. ...Haiku journalism, one of the courtroom Twitter users called it, Still, followers learned everything, if succinetly, including the most gruesome details, as well as who was napping in the second row and the schedule for breaks. ‘It made ‘you feel like you were there,’ said Lawrence E. Soda, a supermarket accountant, who said he kept Twitter reports of the trial rolling on his computer at the market in New Canaan. ---It was a perfect mix of intense local interest and a portable medium that can go where television cameras cannot. There is no doubt it is changing trial reporting and, perhaps, trials themselves by drawing people to courtroom events as they happen and pushing out unvarnished information at the speed of light. ‘Chris March, an online producer at The [New Haven] Register who reported by Twitter from the trial for the newspaper on some days, Said the journalists who were using Twitter learned from one another as they experimented with a new kind of court reporting. ‘He said they were in part replacing cameras that are not allowed in the courtroom for Mr, Hayes’s trial and, in part, providing Twitter readers ‘a ‘yery specific experience’ that could include the personal reactions of the person sending the message. William Glaberson, A Grisly Murder Trial in 140-Character Bits, NY Times (Oct. 15, 2010) (emphasis added); see http://twitter.com/GeoxgeColli/statuses/2201 125994369024 (on Nov. 9, 2010, Fox News reporter George Colli, one of the reporters who broadcast the Haves trial via02/04/2011 17:02 FAX 203 503 6884 SUPERIOR COURT oos ‘Twitter, ‘wweeted’: “During the #Hayes trial, had over 3500 tweets, over 91,000 words and used more that 550,000 characters ...”).! 2. Although the Practice Book and judicial policy afford trial courts’ discretion over the | Possession and use of electronic devices in court facilities, the broadcasting of cases, like Mr. Komisarjevsky’s, that involve sex assault charges is forbidden. Compare PB. § 1-10 with PB, § 1-110); see The Use and Possession of Electronic Devices in Superior Court Facilities (as revised Nov. 16, 2010) (available at htp://www.jud.ct.gov/electronicdevices_ superior.pdt). 3. Mr, Komiisarjevsky opposes the broadcasting of court proceedings in this case, | including broadcasts via Twitter. To the extent there may be a claim that Twitter does not constitute broadcasting, Mr. Komisarjevsky seeks to elucidate what Twitter is and the nature of its evolution, particularly as it concems the media’s use of Twitter for broadcasting purposes \ | For anyone still in the dark about Twitter, a quick bit of background: ‘Twitter, created by a San Francisco startup called Obvious and publicly released in August 2006, isa free social networking service that enables anyone to post pithy messages, known as tweets, to groups of self-designated followers. The tweets can be sent from and received by any kind of device — desktop, laptop, BlackBerry, cellphone, It’s like instant messaging or text messaging, but one-to- many, instead of one-to-one. Twitter has grown with astounding speed, attracting 17 million visitors in April, an 83 percent gain over the previous month, according to the research firm comScore. News organizations and reporters have been quick to adopt Twitter for an | obvious reason: Its speed and brevity make it ideal for pushing out scoops and | breaking news to Twitter-savvy readers... Reporters now routinely tweet from all kinds of events — speeches, meetings and conferences, sports events. In February, a federal judge gave his blessing to Ron ‘ On information and belief, the use of hash tags (“#") helps to promote a story within the Twitter universe, with the most popular subjects becoming “Trending Topics.” See httpi// support.twitter.com/entries/49309-what-are-hashtags-symbols, As can be seen elsewhere in the motions Mr. Komisarjevsky has filed today, the media's use of “#Hlayes” when making Twitter broadcasts was fairly common. Said another way, it appears that media members who broadcast via Twitter undertook a concerted effort to drive up interest in the Haves trial, 302/04/2011 17:03 FAX 203 503 6884 SUPERIOR COURT Moos Sylvester of the Wichita Bagle to use Twitter to report on a trial of six suspected gang members, the first time tweeting had been permitted inside a federal courtroom. Sylvester tweeted frequently from the trial, providing a nearly contemporaneous account..., Paul Farhi, The Twitter Explosion, American Joumalism Review (April/May 2009) (emphasis added) (available at http://www.ajr.org/article.asp?id=4756); see also Jane Chapman and Marie Kinsey, Broadcast Joumalism: A Critical Introduction 130 (Routeledge 2009) (“Some news organisations and joumalists are now using Twitter as a publishing and production resource..."), ‘The Twitter Explosion was writen in the summer of 2009. Like many new technologies, ‘Twitter continues to advance and change. Last fall, Megan Garber of the Nieman Journalism Lab «at Harvard University — someone able to speak knowledgably about what constitutes broadcasting? — provided insight into how Twitter’s then new interface (available and, on information and belief, used during the Haves trial) would further its acceptance within the broadcasting community: The interface that rolled out Jast night — and that will continue rolling out over the next couple of weeks to users around the world — bears little resemblance to that initial vision of Twitter as captured inconsequence. Since its launch (okay, okay: its hatch), Twitter has undergone a gradual, but steady, evolution — from ‘ephemeral conversations to more consequential information. (Recall the change in the web interface’s prompt late last year, from “What are you doing?” to “What's happening?” That little semantic shift — from an individual frame to a universal one — marked a major shift in how Twitter shapes its users’ conception, and therefore use, of the platform. In its way, that move foreshadowed today's new interface.) Infrastructural innovations like Lists have heightened pedple’s awareness of their status not simply as communicators, but as broadcasters. The frenzy of breaking-news events — from natural disasters like Haiti's earthquake to political events like last summer's Iranian “revolution” — have highlighted Twitter’s value as a platform for information dissemination that * Ms. Garber “is an assistant editor at the Lab. She was formerly a staff writer at the Columbia Joumalism Review, where she reported on the future of news for CJR.org’s News Frontier section. A finalist for a Mirror Award for media coverage, Garber also serves as an adjunct professor at Columbia University's Graduate School of Journalism.” http://www.niemanlab.org/ authot/mgarber/,02/04/2011 17:03 FAX 203 503 6884 SUPERIOR COURT Boos \ transcends divisions of state, They've also enforced users’ conception of their | own tweets: visible to your followers, but visible, also, to the world, 1's always been the case, but it’s becoming increasingly apparent: Each tweet is its own | little piece of broadcast journalism. ‘What al that will mean for tweets” production, and consumption, remains to be seen; Twitterers, end-user innovation-style, have a way of deciding for themselves | how the medium’s interface will, and will not, be put to practice, And Twitter is still, you know, Twitter; it’s still, finally and fundamentally, about Communication. But the smallness, the spareness, the convivial conversation that used to define it against other media platforms is giving way — pethaps — to the more comprehensive sensibility of the networked news organization, The Twitter.com of today, as compared to the Twitter.com of yesterday, is much ‘more about information that’s meaningful and contextual and impactful, . Which is to say, it’s much more about journalism. Megan Garber, Twitter as broadcast: What #newtwitter might mean for networked journalism (Sept. 15, 2010) (emphasis added) (available at http://www.niemanlab,org/2010/09/twitter-as- | broadcast-what-newtwitter-might-mean-for-networked-joumnalismy); see Craig Kanalley, 10 Pros and 10 Cons Of Twitter For Joumalists (June 27, 2009) (among listed “pros”: “Instantaneous, | “realtime”, “Eyewitness accounts” and “Raw, no editing, no filters”) (available at http://www. twitterjournalism.com/2009/06/27/10-pros-and-10-cons-of-twitter-for-journalists/, 4. Mr, Komisarjevsky opposes the possession of electronic devices by those behind the bar during court proceedings in this case. “Due process requires that the accused receive a trial by an impartial jury free from outside influences... [Trial courts must take strong measures to insure that the balance is never weighed against the accused.” Sheppard v. Maxwell, 384 U.S. 333, 363 (1966); accord United States v, Columbia Broadcasting System, Inc,, 497 F.2d 102, 104 Gth Cir. 1974) (“A heavy obligation rests on trial judges to effectuate the fair-irial guarantee of the Sixth Amendment.”), A defendant is entitled to “judicial serenity and calm.” Estes v. Texas, 381 U.S. 532, 536 (1965) (emphasis added); see Irvin v, Dowd, 366 U.S. 717, 728 (1961) (“With [the defendant’s} life at stake, it is not requiring too much that petitioner be tried in an9 FAX 203 503 6884 SUPERIOR COURT ‘dove 02/04/2011 17: ‘atmosphere undisturbed by so huge a wave of public passion...”). In particular, “i}a a widely publicized case, [like Mr, Komisarjevsky’s] ‘th right of the accused to trial by an impartial jury can be seriously threatened by the conduct of the news media prior to and during tial” United States v. Gumey, 558 F.2d 1202, 1209 (Sth Cir. 1977) (quoting Report of the Committee on the Operation ofthe Jury System on the “Free Press-Fair Trial” Issue, 45 PRD, 391, 394 (1968), 5. Spectators and reporters typing on an electronic deviese during what jurors reasonably expect to be solemn and formal process causes changes, some subtle and some not so subtle, in the courtroom itself, changes that the jurors themselves can and do notice, During the course of the Haves tial, there were long periods of time when reporters and spectators desultorily typed. | Then, abruptly, furious typing occurred. Sometimes, that increase in typing was because of an event that was obvious to the jury (for example, the introduction of a dramatic bit of testimony or Physical evidence.) Sometimes, the cause ofthe typing was not so obvious (for example, a teaction of Dr. Petit or one of the Petit relatives to the evidence), Sometimes, the increase in ‘yping was caused by something that was not observable to the jury at all (for example, where a ‘Tweeter would respond to tweeted questions from other Tweeters, both inside and outside the courtroom). The spectators” and reporters’ persistent typing in the courtroom was like the musical score of a movie, alerting the viewer that Sométhing significant wes occurring, The consequence of this judicially sanctioned environment was that the jury, by observing the level of ‘ping, was informed as to what evidence the teporters and spectators thought important and as to events in the courtroom of which it would otherwise take no notice. Another consequence may hhave been that the jury, from time to time, was mystified as to the reason that the spectators and reporters Were typing or giving attention to their electronic devices so determinedly. A final ‘consequence is that counsel, as well as the jury, must have been aware from time to time of the02/04/2011 17:03 FAX 203 503 6884 SUPERIOR COURT 007 level of typing and, when the reason for the typing was not obvious, must have been mystified | and concerned that they had missed some important courtroom event. 6. To the extent the Court wishes to accommodate those who seek to possess or use clectronic devices for other than broadcasting purposes, Mr. Komisarjevsky proposes the Court | Provide an overflow room (perhaps re-comissioning the courtroom provided to victims” family and supporters) with a closed-circuit live feed. WHEREFORE, for all of the reasons set forth above, together with such other reasons as may be advanced in any memorandum of law submitted and/or hearing conducted in connection herewith, Mr. Komisarjevsky respectfully requests that this motion be granted. JOSHUA KOMISARJEVSKY, Defendant | 20 Academy Street New Haven, CT 06510 (203) 776-1900; Fax: (203) 773-1904 Bansley3@BansleyLaw.com TODD A. BUSSERT, JN 420221 | 103 Whitney Avenue, Suite 4 ‘New Haven, CT 06310-1229 | (203) 495-9790; Fax: (203) 495-9795 thussert@bussertlaw.com Attorneys for Joshue Komisarjevsky02/04/2011 17:03 FAX 203 503 6884 SUPERIOR COURT Boos ORDER The foregoing Motion having been considered, it is hereby Ordered: GRANTED / DENIED THE COURT By:02/04/2011 17:03 FAX 203 503 6884 SUPERIOR COURT Boos CERTIFICATE QF SERVICE Thereby certify that, in accordance with Connecticut Practice Book §§ 10-12, 10-13 and 10-14, a copy of the foregoing was served via hand this 4th day of Februaty 2011 on the following: Michael Dearington, State’s Attorney Gary W. Nicholson, Senior Assistant State’s Attomey Office of the State's Attomey 235 Church Street New Haven, CT 06510 Todd Bussert Commissioner of the Superior Court