Joshua Komisarjevsky, the second Cheshire home invasion murder defendant, ran out of peremptory challenges this week, and the judge in his trial denied his defense lawyers’ request for additional challenges.
Judge Jon C. Blue has also turned down several requests by Komisarjevsky’s defense lawyers to excuse jurors for cause so they would not have to use up his last few remaining peremptory challenges.
On Thursday when he requested the additional challenges, special public defender Walter Bansley III called the jury members selected so far "the best of the worst," according to a report by the Hartford Courant. Bansley said he and the other defense attorneys believe some jurors were not fair and impartial toward the defendant.
That prompted a rebuke by Judge Blue, who said Bansley had "impugned the character" of the jurors.
Judge Blue rejected Bansley’s suspicion that jurors had purposely concealed their bias against Komisarjevsky so they could make sure he gets the death penalty.
According to the New Haven Register, the judge said he was "puzzled" that the defense had asked for 40 more peremptory challenges, since only one more backup alternate juror needs to be picked.
Since jury selection started on March 16, defense lawyers and state prosecutors have selected 12 regular jurors and six alternates. On Wednesday, they picked two of the three backup alternates. Only one more backup alternate vacancy remains.
Both sides got 40 peremptory challenges at the start of jury selection, which is 10 more than attorneys usually get in criminal trials in Connecticut.
Prosecutors used their 39th challenge on Thursday, the day the defense used its 40th challenge.
In a memorandum supporting their motion for additional peremptory challenges, Bansley and Komisarjevsky’s other public defenders, Jeremiah Donovan and Todd Bussert, noted the evidence that the jury pool is highly prejudice against the defendant in this case.
They said the reason was the amount of pretrial news media coverage of the case, which involves the home invasion kidnapping and robbery of a Cheshire doctor and his family. The defendants were also accused of rape, assault, arson and the murders of the doctor’s wife and two daughters.
According to the memorandum, a public opinion survey found that 99.5 percent of people in the New Haven Judicial District knew of the case, "the highest of any known case ever surveyed." That survey was done before jury selection started.
Moreover, 85.3 percent of people in the New Haven Judicial District believed that Komisarjevsky was either definitely or probably guilty.
When each jury panelist enters the courtroom, the first question posed is: "Do you know of any reason you should not sit as a juror in this case or, if selected, you could not be fair and impartial?"
The memorandum states that not only have many panelists said they had prejudged Komisarjevsky to be guilty, but a majority of those who felt they could serve as a juror were later excused for cause by Judge Blue.
The memorandum noted that the prosecution does not face the same difficulty: "Not one venire person has presented expressing a sincere belief that Mr. Komisarjevsky is free of all wrongdoing, that is, no one has said they presumed Mr. Komisarjevsky innocent until prompted to offer such an opinion."
The memorandum also noted a comment by Judge Blue on May 25 after State’s Attorney Michael Dearington observed that jury selection would speed up because both sides were running out of peremptory challenges. According to the memorandum, Judge Blue replied, "Starting next week we pick the jury," and then analogized it to the Aesop’s fable about the ant and the grasshopper.
The defense said this suggests Judge Blue believes jury selection would be concluded faster after Komisarjevsky ran out of peremptory challenges.
In a footnote, the defense notes it does not see how the Aesop’s fable applies to the Komisarjevsky jury selection, but it is concerned that the judge views the defendant’s lawyers as the foolhardy grasshopper in the story.
During jury selection there were several other instances in which panelists appeared to have concealed that they had already decided Komisarjevsky was guilty and should get the death penalty.
On April 20, Judge Blue refused a defense request to excuse a juror for cause, so the defense exercised a peremptory challenge. As she left the courtroom, she swore at Komisarjevsky, who was seated with his lawyers, and called him a "murderer."
The memorandum said another panelist on May 11 professed she could be fair and impartial toward Komisarjevsky. When the defense excused her with a peremptory challenge, she went home and commented on Facebook that she "looked the murderer straight in the eyes" for three hours in the courtroom.
Two alternate jurors who were picked for the jury returned and admitted they could not be fair and impartial because they believed Komisarjevsky was guilty, and Judge Blue excused both.
One of the alternates insisted in court she could be fair and decide the case on the evidence. When she was picked for the jury, Judge Blue instructed her not to talk to anyone about the case. She returned a few hours later in tears and said contrary to the judge’s instructions, she had discussed the case with her babysitter and was convinced Komisarjevsky was guilty.
The other alternate, a 32-year-old science teacher, said his friends and colleagues figured out that he was a juror within hours of his being selected and they pressured him to make sure Komisarjevsky gets the death penalty.
"With each new panel brought into the courtroom since March 16," the defense memorandum states, "Mr. Komisarjevsky and the defense team are confronted with cold stares, if not blatantly hostile glares, as well as gesturing and posturing by those especially ‘tough’ individuals who wish to be seen as willing and able to take matters into their own hands.
"Then there are those who begin to cry or otherwise become emotionally affected as the Court confirms their fears and suspicions: that they have been called as prospective jurors for ‘The Cheshire Murder Case.’"
The defense concluded the memorandum stating that given that the defendant faces a more difficult task finding jurors that are impartial than the prosecution does, it is unfair to require him to have the same number of peremptory challenges.
"Without the use of additional challenges the defense will be unable to challenge jurors who seem impartial, at least in the Court’s estimation, but in fact have already formed opinions, an already common occurrence," the memorandum said.