Defense lawyers for Joshua Komisarjevsky, the second Cheshire home invasion defendant, are close to running out of peremptory challenges, something that could be a disadvantage for sparing their client from receiving the death penalty.
When jury selection concluded for the week Thursday afternoon, the defense lawyers had used 34 peremptory challenges, leaving them only six more before reaching their limit.
By contrast, the prosecutors have only used 29 challenges.
Each side gets 40 peremptory challenges, which may be used to excuse a juror without stating a reason. Most jurors are excused for cause, mostly because they already feel the defendant should get the death penalty, or are opposed to the death penalty, or could not afford to take off work for two or three months to serve on the jury.
Komisarjevsky faces the death penalty for the 2007 home invasion triple homicide of a doctor’s wife and two daughters in Cheshire. His co-defendant, Steven Hayes, was convicted in 2010 in a separate trial and sentenced to death.
Thomas Ullmann, the chief public defender in New Haven who defended Hayes, said Komisarjevsky’s defense lawyers could request additional peremptory challenges, but there is no guarantee that Judge Jon C. Blue would approve them.
In a talk he gave in April at the Jewish Community Center of Greater New Haven, Ullmann said the defense only used 30 of their peremptory challenges during jury selection for Hayes. He wondered if using more of them might have saved Hayes from the death penalty.
Ullmann agreed to talk about the general rules for the trial, but would not comment on the Komisarjevsky case directly.
The trial rules tie the peremptory challenges issue to the selection of alternate jurors, which is who the Komisarjevsky jury selection is now focusing on.
The 12th regular juror was chosen on May 10, but the court still had to choose six alternate jurors and three backup alternates to fill vacancies if any regular jurors must be excused.
The attorneys picked the first alternate juror on Monday, a teacher who lives in Hamden, but he returned on Tuesday and asked to be excused for financial reasons, which the judge did. A Hamden woman was chosen on Thursday, so she became the first alternate juror.
Ullmann said the lawyers and prosecutors in the Hayes case agreed to fill jury vacancies with alternates in the order they are chosen, so the first alternate would be the first to fill a vacancy should one occur.
Patch has confirmed that the same agreement is in effect for the Komisarjevsky jury.
But that only applies up to the start of the trial, when state statute takes over and requires alternate jurors to be selected by lottery to fill jury vacancies.
"They write down six names and the clerk picks one out of a cup," Ullmann said. That means once the trial starts the 6th alternate is as likely to fill a vacancy as the 1st alternate.
Ullmann said the pre-trial agreement is advantageous to both sides, because they are more likely to still have peremptory challenges when picking the first alternates. "You can use your peremptories with more precision," he said.
But with the defense lawyers using more than two and a half challenges for every juror selected, there is a good chance they will run out of challenges before they pick all the alternates.
This difficulty wouldn’t be as serious were it not apparent that some jurors might be concealing their prejudice against Komisarjevsky with the aim of being selected for the jury so they could punish him with a death sentence. That would be contrary to the judge’s instructions to each juror that they must give Komisarjevsky the "presumption of innocence" and base their decision on the evidence and the law.
Komisarjevsky’s defense lawyers referred to that possibility in a motion for a continuance they filed on Monday in response to state Sen. Edith Prague’s comment on May 11 that the defendant should be publicly hanged by his genitals without a trial.
"This clarion call for a lynching by a respected senior state senator lends respectability to those desiring to join her lynch mob. Those whom we have previously viewed as fringe have, with the senator’s assistance, joined the mainstream. We, of course, fear that the senator’s call for a lynching may gain recruits among venire persons," the lawyers said in their motion.
They continued: "We are vividly aware that we cannot always ascertain whether a juror has or has not been recruited, at least mentally, for the senator’s lynch mob. If someone is determined to execute Mr. Komisarjevsky, it is an easy matter to answer the voir dire questions in a way that suggests fairness, impartiality, and a willingness to follow the court’s instructions."
In fact, that appears to have happened at least once in April when a woman appeared impartial and acceptable to the judge. When the defense attorneys used a peremptory challenge to excuse her, she began shouting insults and accusations at Komisarjevsky, who is seated every day at the defense table.
The defense referred to that in its motion: "We are constantly aware of the example of venire person Jenny Medina-Morris, who appeared fully fair and impartial, but against whom the defense exercised a peremptory challenge because her ability to comprehend the nuances of capital instructions appeared limited, and who, on being excused, screamed "Murderer! Asshole" at Mr. Komisarjevsky—and she served as a venire person before the Senator’s incendiary remarks."
Judge Blue denied the motion for the continuance, however, and ordered jury selection to continue.
On Thursday, defense lawyer Walter C. Bansley III attempted to get Judge Blue to excuse a juror for cause rather than force the defense to use a peremptory challenge.
Bansley asked the juror, an older man, what he thought when he heard that Hayes received the death penalty. The man said based on the news reports he heard, "it was a good decision."
"It would be hard not to form an opinion based on what we heard," he said. The juror said he could set aside his opinions and view the case based on the evidence and the law, but Bansley asked the judge to excuse him.
"The law draws a distinction between opinions and unexpressed feelings," the judge replied, and noted that the juror said he understood the presumption of innocence. "This panelist was very clear that his opinions were based on the news reports and not on the evidence." Furthermore, Judge Blue said, the presumption of innocence only applies in a court of law, "not in the court of public opinion."
That forced the defense to use its 34th peremptory challenge.