Defense attorneys for Joshua Komisarjevsky have filed a motion asking that witnesses in the second Cheshire home invasion trial, including Dr. William Petit, be sequestered during the trial.
State prosecutors opposed the motion, however, on the grounds that the state’s Victims Rights Amendment grants Petit the right to attend the entire trial.
Petit was brutally beaten but survived the violent home invasion crime that ended with the murders of his wife, Jennifer Hawke-Petit, and two daughters, Hayley, 17, and Michaela, 11, in July 2007.
Sequestering is the custom of keeping trial witnesses out of the courtroom when other witnesses testify so it doesn’t influence their testimony.
During the trial last year of Komisarjevsky’s co-defendant, Steven Hayes, all witnesses were sequestered except for Petit.
Defense attorneys for Komisarjevsky said without sequestering all witnesses, including Petit, the court cannot protect the defendant’s right to a fair trial.
Komisarjevsky faces the death penalty if convicted of the capital murder counts for the triple homicide. Hayes was convicted last year and sentenced to die by lethal injection.
The defense motion and the state’s response were filed July 8 before Judge Jon C. Blue, who will try the case.
In a reply filed yesterday, July 12, defense attorneys argued that Petit should be considered a "complaining witness," not a "victim," and noted that during the Hayes trial Petit "demonstrated a propensity to shape his testimony" based on the testimony he had already heard.
They cited several instances when Petit mentioned other witnesses’ testimony while giving his own on the witness stand during the Hayes trial.
"Complaining witness" is a neutral term that preserves Mr. Komisarjevsky’s right to a presumption of innocence, as well as his right to a fair trial — inviolate rights that the Victim’s Rights Amendment does not abridge," the defense lawyers wrote in the reply.
The state prosecutors noted that there is no evidence that Petit’s testimony in the Hayes case would have been any different if he had been sequestered.
They said his testimony was the same as his original statements to the police investigators. They also said they anticipate calling the same five witnesses and then Petit as their sixth witness that they called during the Hayes trial, and none of those five witnesses testified about anything that Petit testified about.
Moreover, the prosecutors said, the defense would have the opportunity to cross-examine Petit on the witness stand about any inconsistencies in his testimony.
The five witnesses that preceded Petit were: a nurse in Petit’s medical office who received a call from Petit's wife saying Petit would not arrive at work on time; two bank employees who let Jennifer Hawke-Petit withdraw $15,000 for the kidnappers and then called police; Petit’s neighbor who found him in his driveway after he escaped the kidnappers, and one of the first Cheshire police officers to respond to the crime scene.
But the defense lawyers said the state has no legal standing to represent Petit’s interests in this motion, since the prosecution case would not be affected if Petit is sequestered.
They also noted that Petit is represented by the state’s victim advocate and by his own attorney.
"Respectfully, this effort is nothing more than another in a long series of attempts by the state to go out of its way and accommodate Dr. Petit, especially when compared to how the state routinely deals with other individuals similarly situated to Dr. Petit relative to prosecutions brought in the New Haven Judicial District," the defense lawyers wrote.