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DEFENDANT Joshua Komisarjevsky, by and through undersigned counsel, hereby

moves the Court to reconsider its Order, and supporting Memorandum of Decision, dated April

1, 2011, granting the Hartford Courant Company’s motion to the Court’s March 16 Order sealing

the list of names Mr. Komisarjevsky provided pursuant to court order, on March 15, 2011. As

set forth more fully herein, the Court, in once again acquiescing to the demands of the media

without sufficient regard to Mr. Komisarjevsky’s right to a fair trial, has placed Mr.

Komisarjevsky in an impossible situation that serves to interfere with his ability to prepare for

trial, namely any potential penalty phase that may occur. In particular, not only does the Court

assert incorrectly that Mr. Komisarjevsky has raised only “generalized concerns” and employ an

unsustainable standard, but it also suggests that Mr. Komisarjevsky should have submitted

additional materials under seal when what is at issue is a list Mr. Komisarjevsky submitted

accounting for representations from the Court that, just as in the Hayes case, it would not be

released. For the reasons below, the Court must maintain Mr. Komisarjevsky’s list under seal or,

at a minimum, permit him to file a revised list for purposes of public consumption. In support of

this request, Mr. Komisarjevsky states as follows:

1. At a pretrial conference, on March 2, 2011, the Court inquired of the parties how

many witnesses they anticipated calling during their respective cases-in-chief and during the

penalty phase, should the occasion arise. Mr. Komisarjevsky advised that he expected to call

between five and eight witnesses during his case-in-chief but was uncertain about the number

who might be called during the penalty phase given the extreme difficulty the defense has

repeatedly encountered in confronting potential witnesses who, while supportive of Mr.

Komisarjevsky, are reluctant to testify because of the deleterious effects they perceive will result

if their association with and support of Mr. Komisarjevsky and with this case is revealed

publicly. Recognizing the defense’s position, the Court required Mr. Komisarjevsky to provide a

list of names of potential witnesses who may testify on behalf of Mr. Komisarjevsky and of

names that may come up during trial. The Court ordered the parties to submit their respective

lists no later than March 15, 2011. The express purpose of the lists is for submission to venire

panels to ascertain whether prospective jurors know any of potential witnesses or individuals

associated with the parties in order that the parties can make a determination regarding

prospective jurors’ qualifications and ability to serve fairly and impartially.

2. As noted in Attorney Donovan’s affidavit filed in support of Mr. Komisarjevsky’s

opposition memorandum, prior to submitting our list electronically, on March 15, Court Clerk

Edjah Jean-Louis advised us that the lists submitted in State v. Hayes, Docket No. CR07-

241859, were not released to the media or to the public at-large. Although Ms. Griffin contests

this fact, see Alaine Griffin, No One Picked In 1st Day Of Jury Selection in Cheshire Trial,

Hartford Courant (March 17, 2011) (“The witness list in Hayes’ trial was released at the start of

jury selection.”), New Haven Public Defender Thomas Ullmann, counsel for Hayes, confirms

Ms. Jean-Louis’s position. Ex. A. Regardless, as Attorney Donovan has attested, Mr.

Komisarjevsky would not have submitted such a comprehensive list had he known that the Court

intended to release it to the public. Said another way, Mr. Komisarjevsky relied upon and was

effectively induced by the Court’s past practices when providing, in good faith, an accounting of

all potential witnesses and names that may arise during the course of the case, knowing and

believing from several years experience that the vast majority of those listed oppose public


3. The Courant and Ms. Griffin filed their motion on March 22, 2011. As Mr.

Komisarjevsky advised the Court, he did not see the motion until the morning of March 23,

around the same time he entered court to find an Order directing that any objections be filed by

close of business on March 28. Only after some discussion, did the Court amend its Order to

permit any objection be filed by 10:00 a.m. on April 1.

4. The original and the amended Order direct that “[a]ny party objecting to the Motion

shall … file under seal a list of specific names on that party’s witness list as to which further

sealing is claimed to be warranted under P.B. § 42-49A, together with appropriate affidavits.”

As reflected in Mr. Komisarjevsky’s opposition pleadings, he seeks to have the entire list filed

on March 15 maintained under seal, though, on further review, there are 25 names that could be

unsealed in that they appear on the State’s list (e.g., police officers, medical examiners), they

were disclosed during the Hayes trial (e.g., witnesses), and/or they are individuals whose names

may come up but who Mr. Komisarjevsky is highly unlikely to call as witnesses (e.g., members

of the Petit family):

Bessette, Rosalie Lyons, Mary

Carver, Wayne Medina, Rafael
Chapman, Johanna Moses, Sandra
Gerace, William Petit, Glenn
Hafeez, Mohammed Shah, Malka
Hayes, Diana Simick, David

Hayes, Matthew Spadola, Carl
Hayes, Steven Theep, Phillip
Keenan, Maury Valerio, Kristin
Kenyon, Holly Viscomi, John
Komisarjevsky, Ben Vitello, Joseph
Komisarjevsky, Jude Williams, Susan
Laria, Michael

Moreover, Mr. Komisarjevsky did submit an appropriate affidavit from his lead counsel setting

forth Mr. Komisarjevsky’s particularized concerns, including threats made against his family and

a witness in the Hayes trial as well as a representative sample of the fears and concerns that have

consistently been conveyed to the defense the last several years — fears and concerns that have

tremendously impeded Mr. Komisarjevsky’s efforts to prepare for a possible penalty phase.

Although unmentioned in its Memorandum of Decision, the Court acknowledged the validity of

Mr. Komisarjevsky’s concerns on March 16: “I think that Mr. Bansley’s point is at least initially

persuasive that there’s some reason to believe that witnesses might -- potential witnesses might

receive unwelcome attention that might discourage their willingness to testify in court. So, I

think there’s reason to seal the list without prejudice and that will be done.”

5. Attached hereto is a supplemental affidavit from Attorney Donovan (Ex. B), which

details contact we have had with individuals on Mr. Komisarjevsky’s list since the Court issued

its Memorandum of Decision. Respectfully, this feedback substantiates the concerns raised in

our opposition memorandum while further confirming the nature of the threats, harassment and

intimidation that people have experienced, felt and fear, including harassment by the media

following Mr. Komisarjevsky’s arrest. Additionally, Mr. Komisarjevsky notes that among the

28 comments posted on the Courant’s Web site in response to Ms. Griffin’s story concerning the

Court’s April 1 ruling are:

LoyalWontLogOff at 8:02 PM April 1, 2011

If anyone should be threatened it should be the Attorneys. They are all scum.
LMHtfd at 8:15 PM April 1, 2011
It may not have an effect on the trial, but certainly may lead to some witnesses receiving
death threats, being harassed or having people start Facebook pages to boycott their
businesses. All happened with one of Hayes' defense witnesses, a former employer. The
Courant later interviewed her and she said she didn't want to testify but was forced to due
to subpoena. Anyone will be reluctant to testify if they have to worry about some yahoo
making good on an anonymous threat.
moonshadow at 8:37 PM April 1, 2011
I agree with both of you - that releasing the list may cause some witnesses to be
completely intimidated, and even if subpoened, may not give clear testimony, but
Komisarjevsky will get the death penalty anyway.
And I wonder why the little daughter was taken from the parents? I hope there was a
good reason.
See and

6. When making reference to individuals, including potential witnesses, in his affidavits,

Attorney Donovan has intentionally avoided identifying them by name or anything beyond the

vaguest of identifiers (i.e., not gender, age, residence, etc.). Mr. Komisarjevsky does not intend

in public filings to identify these individuals by name since, in light of the predicament in which

he now finds himself, he lacks confidence that the Court will hold or maintain the privacy of

pleadings it orders, if those pleadings are filed under seal. Mr. Komisarjevsky relied on

representations about what occurred in the Hayes case only to have the Court deviate here, to

Mr. Komisarjevsky’s considerable detriment. Furthermore, to the extent that the Court’s March

23 Order is read as requiring an affidavit from each individual named on the list, as opposed to

considering the list as a whole, such a demand is inconsistent with the law, unworkable under the

time constraints established by the Court and likely impossible given the recent resistance the

defense has encountered when trying to communicate with individuals on the list, especially

now. Mr. Komisarjevsky could not have realistically been expected to obtain some 100

affidavits from already reluctant parties in one week’s time. If the Court, in fact, requires such

affidavits, Mr. Komisarjevsky requests the list be held an additional six weeks to permit him an

opportunity to obtain them.

7. The Court appears to find that Mr. Komisarjevsky’s list is a “judicial document.”

Mem. 2-3. Specifically, the Court asserts that the list was “‘filed with the court’ within the

meaning of P.B. § 42-49A” and that lists like that which Mr. Komisarjevsky submitted “are

ordinarily intended to be public.” Id. (italics in original; bold added). To clarify for the record,

Mr. Komisarjevsky did not “file” the list with the Court (i.e., he did not file it in the Clerk’s

Office to be date stamped and entered into the trial court file); he e-mailed the list to the Ms.

Jean-Louis, and copied in the state — but only having been informed that the list in Hayes was

not disclosed to the public. The Court’s failure to acknowledge this representation, on which

Mr. Komisarjevsky has informed the Court he relied, as well as its initially stated justification

for sealing is troubling. The Memorandum of Decision can be fairly read as an effort by the

Court to shift all responsibility onto Mr. Komisarjevsky while absolving itself of having

contributed substantially to the predicament. As set forth in Paragraph 10 of Attorney

Donovan’s affidavit in support of the Motion to Disqualify, there is concern about how the Court

rules in this case.

8. These considerations notwithstanding, the list is not a judicial document, that is, it is

not a “document filed that a court reasonably may rely on in support of its adjudicatory function”

or a document” relevant to any judicial determination.” Rosado v. Bridgeport Roman Catholic

Diocesan Corp., 292 Conn. 1, 39, 46 (2009) (emphasis in original), cert. denied sub nom,

Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., -- U.S. --, 130 S.Ct. 500

(2009). Importantly, the Connecticut Supreme Court’s definition of what constitutes a “judicial

document” differs substantively from the Practice Book’s concerns about the public right of

access to documents “filed with the court.” Rosado, 292 Conn. 46 (“If this court were to

interpret the word ‘filed’ literally, Connecticut would apply a broader approach to the

presumption of public access than any jurisdiction to have considered this issue.”). There is no

valid claim, nor did the Courant or Ms. Griffin assert, that the list is necessary for the Court to

adjudicate any issue. See, e.g., Sienkiewicz v. Ragaglia, 2011 WL 1169089 (Conn.Super. March

2, 2011). Consequently, the presumptive right of access is far weaker than it might be in the

ordinary course. See United States v. Graham, 257 F.3d 143, 149-50 (2d Cir. 2001) (weight is

greater where documents are “introduced at trial” or otherwise “material to the court’s

disposition of the case on the merits” and weaker where the “do not serve as the basis for a

substantive determination”, with presumption concerning documents that play a “negligible role”

in the court’s exercise of its power being “appreciably weaker”) (citing, inter alia, United States

v. Amodeo, 71 F.3d 1044, 1049-50 (2d Cir. 1995)). The Memorandum of Decision is devoid of

such analysis.

9. In terms of judicial documents that bear on the adjudicatory function, it is notable that

during the Hayes trial the Court sua sponte entered a limited sealing order with respect to crime

scene and other photographs depicting the victims, permitting reporters to view the photographs

in the Clerk’s Office but denying reproduction or public dissemination. Respectfully, this is an

example of the Court giving greater weight and consideration to the interests of the victims, or,

more specifically, the victims’ family inasmuch as the victims are deceased, than to a

defendant’s right to a fair trial. As set forth in Mr. Komisarjevsky’s Motion to Disqualify, he

maintains serious reservations about the Court’s approach to this case relative to elevating his

constitutional right to a fair trial over the victims’ family’s claimed rights or the media’s alleged

rights and interests. Indeed, the Memorandum of Decision makes no reference to the Court’s

obligation to ensure that Mr. Komisarjevsky receive a fair trial, specifically to minimize the

impact of publicity. See Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 13

(1986); Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“[B]ecause of the Constitution’s

pervasive concern for these due process rights, a trial judge may surely take protective measures

even when they are not strictly and inescapably necessary.”).

10. The granting of the Courant’s motion is yet another example of the Court ingratiating

itself with the media:

(a) As set forth in Mr. Komisarjevsky’s Motion to Disqualify and established at the hearing

related thereto, during the course of the Hayes trial, the Court observed being “under the

public eye” and characterized this case as a “fish bowl” experience — the clear import

being that all concerned operate under the media’s watchful gaze. The Court also handed

out homemade cookies to the media in the hallway outside Courtroom 6A, on the

morning of November 1, 2010.

(b) Over Mr. Komisarjevsky’s objection, the Court is permitting this case to be broadcast via

Twitter. Notably with respect to the instant Memorandum of Decision, in its

Memorandum of Decision denying Mr. Komisarjevsky’s motion to preclude broadcasting

(and the use of electronic devices generally) the Court asserted that “[n]o evidence was

presented at the hearing” but ignored (i.e., did not take up or address) the authority set

forth in Mr. Komisarjevsky’s motion establishing that Twitter, particularly as employed

by members of the media, is a form of broadcast journalism, albeit relatively new. See,

e.g., Megan Garber, Twitter as broadcast: What #newtwitter might mean for networked

journalism (Sept. 15, 2010). Again, as set forth in Paragraph 10 of Attorney Donovan’s

affidavit in support of the Motion to Disqualify, there is concern about how the Court

rules in this case.

(c) Also over Mr. Komisarjevsky’s objection, the Court is reserving two rows of seats for the

media directly behind the defense. Notable in this regard is that during the hearing on the

issue, the Court took the extraordinary step of sua sponte inquiring of reporters then

present about where they wished to sit. It was not until Mr. Komisarjevsky objected that

the Court desisted in surveying the media’s personal preferences.

The Court’s actions and its pattern of rulings on media-related issues expose a bias where

accommodation of media requests trumps Mr. Komisarjevsky’s right to a fair trial. Indeed, in

this instance the Court makes no reference to the fact of Mr. Komisarjevsky being advised that

the list in Hayes was not released or that Mr. Komisarjevsky relied on this information, nor did

the Court afford a hearing or opportunity to revise the list before granting the Courant and Ms.

Griffin’s motion.

11. Granting Mr. Komisarjevsky leave to seek a stay from a reviewing court is, as the

Court well knows, a hollow and relatively meaningless gesture. Barring this Court’s

reconsideration of its erroneous decision, no realistic opportunity exists for Mr. Komisarjevsky

to obtain review of, let alone a stay of, an inherently discretionary determination. Although the

Court’s decision is of great importance to Mr. Komisarjevsky, counsel cannot say in good faith

and candor that this issue is a matter of substantial public interest, a condition precedent to

seeking review pursuant to General Statutes § 52-265a and Practice Book § 83-1.

12. In the course of preparing for Mr. Komisarjevsky’s defense, namely a penalty phase

presentation, the defense has interviewed approximately one hundred potential witnesses and has

been refused interviews by another approximate one hundred potential witnesses. As this

statistic suggests, an obstacle that the defense has consistently encountered throughout its

investigation is the reluctance of potential witnesses to even meet with defense investigators, let

alone agree to provide information or to testify on behalf of Mr. Komisarjevsky. The unrelenting

and inarguably unprecedented media attention associated with this case has been a significant

impediment in this regard. Nearly every witness interviewed has voiced concern about

becoming involved due to the extensive media coverage and/or the extremely deleterious

connotation that they perceive will be directed at them if their assistance to the defense is

disclosed. The defense has carefully advised prospective witnesses about the importance of their

assistance relative to possibly sparing Mr. Komisarjevsky the death penalty while also assuring

individuals that the defense will do everything permitted by law to protect their privacy, unless it

was necessary for them to testify, at which time their identity would necessarily be made known.

The release of Mr. Komisarjevsky’s list will greatly erode whatever rapport and credibility the

defense has established with potential witnesses over the course of time. In sum, the Court’s

intention to release Mr. Komisarjevsky’s list will unquestionably exacerbate the defense’s ability

to prepare a penalty phase presentation and, correspondingly, will impede even more Mr.

Komisarjevsky’s constitutionally recognized right to a fair trial.

13. As reflected through prior filings, hearings and argument, Mr. Komisarjevsky

submits that the intense media attention that this case has generated coupled with the denial of a

change of venue denies Mr. Komisarjevsky the right to a fair trial, as guaranteed by both the

United States Constitution and the Connecticut Constitution. Mr. Komisarjevsky’s right to a fair

trial, particularly under circumstances where he may well lose his life, should be zealously

safeguarded, including by the Court. Although Mr. Komisarjevsky’s recognizes the rights of the

press, his right to a fair trial far outweighs any claimed right of access to a document that Mr.

Komisarjevsky believed would not be subject to release when he submitted it. If the Court

intended to release the list of the public, it should have so advised, and definitely not have

advised to the contrary, in order that Mr. Komisarjevsky could have acted accordingly.

WHEREFORE, for all of the reasons set forth above, together with such other reasons as

may be advanced during any hearing conducted in connection herewith, Joshua Komisarjevsky

respectfully prays the Court reconsider its Memorandum of Decision and reverse its Order

granting the Courant and Ms. Griffin’s motion without prejudice.

Respectfully submitted,

123 Elm Street--Unit 400 Bansley Law Offices, LLC
P.O. Box 554 20 Academy Street
Old Saybrook, CT 06475-4108 New Haven, CT 06510
(860) 388-3750; Fax: (860) 388-3181 (203) 776-1900; Fax: (203) 773-1904


103 Whitney Avenue, Suite 4
New Haven, CT 06510-1229
(203) 495-9790; Fax: (203) 495-9795

Attorneys for Joshua Komisarjevsky







THOMAS ULLMANN, hereby deposes and says that the following is true:

1. I am a member in good standing of the Bar and the Public Defender for the Judicial

District of New Haven.

2. Along with Attorney Patrick Culligan, Chief of the Office of the Public Defender’s

Capital Unit, I was counsel for Steven Hayes in State v. Hayes, Docket No. CR07-241859.

3. I have been asked by counsel for Joshua Komisarjevsky whether the written witness

list we provided the Court in connection with jury selection in Mr. Hayes’s case last year was

disclosed publicly. To the best of my knowledge and recollection, the written list we provided

was not released publicly.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and understanding.

Date: April __, 2011

New Haven, Connecticut
Thomas Ullmann






JEREMIAH DONOVAN, hereby deposes and says that the following is true:

1. I am a member in good standing of the Bars of Connecticut and New York. I am also

a member in good standing of the United States Court of Appeals for the Second Circuit, and of

the United States District Court for the Districts of Connecticut.

2. I am appointed, lead counsel for Joshua Komisarjevsky in the above-captioned matter

and have served in that capacity since on or about July 31, 2007.

3. This affidavit is offered in connection with Mr. Komisarjevsky’s Motion for

Reconsideration of the Court’s Order granting the Motion to Vacate the sealing order related to

Mr. Komisarjevsky’s list of names of potential witnesses and individuals who may be mentioned

during the course of the trial, including penalty phase.

4. This affidavit reflects my personal understanding based on direct knowledge as well

as on information obtained through consultation with members of Mr. Komisarjevsky’s defense

team, including co-counsel and our mitigation specialist.

5. Since the filing of the Court’s Memorandum of Decision mid-day on April 1, we have

had contact with a number of the individuals named on Mr. Komisarjevsky’s list concerning the

announced release of their names this Friday:

(a) Counsel for Mr. Komisarjevsky’s minor daughter’s guardian confirms that the minor

daughter, whose name is on the list, was previously the subject of death threats,

which led to her removal from Mr. Komisarjevsky’s parents’ custody, police drive-

bys for at least six months and an adult escort at school, and that there is concern if

the minor daughter’s name is released to the public, particularly given the current lack

of a known relationship with her father;

(b) In addition to concerns about keeping employment, the previously referenced

extended family member who works at the same location as one of Dr. Petit’s

extended family members reports that following Mr. Komisarjevsky’s arrest members

of the media sat across the street from his/her house (“hounded”) causing him/her


(c) The previously referenced childhood friend, who resides in Cheshire and was (is)

fearful of community backlash, advises that reporters previously showed up at his/her

house unannounced, and s/he is concerned about the safety of his/her family (“will be

under threat of physical harm”), including young children;

(d) An extended family member, who has previously spoken with the defense, is

extremely upset and now states a refusal to testify, noting how the media “hounded”

Mr. Komisarjevsky’s elderly grandmother, who lived in another state and had just lost

her husband, shortly after his arrest, causing the grandmother to become “upset and

confused” (the grandmother died three months after the arrest);

(e) An older extended family member, who has previously spoken with the defense, is

fearful about her name being linked to Mr. Komisarjevsky, particularly as a relative;

(f) A longtime family friend, who owns a small business and is dealing with a serious

personal family issue, is upset and concerned about the prospect of a loss in business;

(g) A childhood friend with a relatively unique last name, whose spouse helps care for

one of Dr. Petit’s immediate family members, is upset and concerned about

repercussions the spouse may face;

(h) Former family friends (parents and childen), including a former girlfriend of Mr.

Komisarjevsky, who have previously expressed an unwillingness to speak with the

defense due to the emotional stress that this case causes, report that one of the parents

sought therapy to help cope with said stress and remains emotionally fragile;

(i) A former friend is very upset and reports that any harassment would cause him to be

fearful of telling the truth if called to testify;

(j) A former prisoner with whom Mr. Komisarjevsky served time is angry and, despite

speaking with us previously, has announced a refusal to testify; and

(k) A former pastor reports that he does not want his church exposed in any way.

6. What we have found is that equal to the fear of the potential consequences that may

befall them is individuals’ concern about emotional trauma, which many report experiencing

every time they are exposed to media coverage about this case. Furthermore, many individuals

are experiencing serious personal issues, such as financial crisis, illness and death of loved ones,

that, standing alone, leaves them vulnerable emotionally and impedes our ability to communicate

with them

7. Our mitigation specialist, who has been involved with more than 20 capital cases,

reports that what she has encountered in this case is unique to her experience, that is, she has

never encountered such a pervasive sense of fear and reprisal by so many individuals with

connections to a defendant. She is finding that the threat of exposure is increasing individuals

reluctance to communicate with our defense team, and that individuals with whom we spoke

previously are now backing off their statements while others are citing never before noted

hardships as reasons why they should not be called to testify.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and understanding.

Date: April __, 2011

New Haven, Connecticut
Jeremiah Donovan


I hereby certify that, in accordance with Connecticut Practice Book §§ 10-12, 10-13 and

10-14, a copy of the foregoing was served via electronic mail and first class mail, postage

prepaid, this 6th day of April 2011on the following:

William S. Fish, Jr., Esquire

Amy E. Markim, Esquire
Hinckley, Allen & Sydner, LLP
20 Church Street
Hartford, CT 06103

A courtesy copy was also served by hand on the following:

Michael Dearington, State’s Attorney

Gary W. Nicholson, Senior Assistant State’s Attorney
Office of the State’s Attorney
235 Church Street
New Haven, CT 06510

Todd Bussert
Commissioner of the Superior Court