Defense lawyers for Joshua Komisarjevsky this week asked the trial judge to allow them to delete 25 names from their witness list before it is released to the news media.
The defense lawyers objected to the release of the witness list on the contention that they had a reasonable expectation that their list would remain sealed, based on the court’s decisions during the trial of Komisarjevsky’s co-defendant last year, they said.
The names they would delete are potential witnesses who fear their testimony for the defendant could make them the targets of threats and intimidation.
Judge Jon C. Blue denied the defense motion, but delayed releasing the lists to give the defense more time to appeal to another court.
Jury selection ended Thursday with defense attorneys and prosecutors picking a fifth juror for the second Cheshire home invasion defendant. She is the third woman picked for the jury.
The Hartord Courant reported today the new juror is a New Haven woman employed as a mental health worker. She said she was not familiar with the crime because she was studying in Spain when it happened, the newspaper said.
Komisarjevsky might face the death penalty in the triple homicide case. His co-defendant, Steven Hayes, who was convicted in a separate trial in 2010, is on death row.
Lawyers must pick 12 jurors, six alternates and three backup alternates for the trial that is scheduled to start in September.
In the motion filed this week in New Haven Superior Court, the defense lawyers—Jeremiah Donovan, Walter C. Bansley III and Todd A. Bussert—said releasing the defense’s witness list would jeopardize Komisarjevsky’s right to a fair trial.
"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 disclosure," the motion said.
The defense attorneys asked Judge Jon C. Blue to either seal the witness list, and thus reverse his earlier decision to release it, or allow them to revise the list so potential witnesses would not be afraid to testify.
The judge ruled on April 1 in favor of a motion the Courant and reporter Alaine Griffin to release the witness lists. He stayed his order for one week to give the defense the opportunity to get another court to review the order and extend the stay.
On Thursday, Judge Blue denied the defense motion to reconsider his order, but extended the temporary stay for another week until April 14.
In their reconsideration motion, the defense lawyers referred to a pretrial conference on March 2 when they told the judge they were uncertain how many witnesses they might call during the penalty phase of the trial because many potential witnesses were afraid to testify.
The court ordered the defense and prosecution to present their lists by March 15 so they could be used for jury selection, which began on March 16.
Prospective jurors are shown the names to identify if they know any witnesses personally, something which would disqualify them from serving on the jury.
Prior to March 15, the court clerk informed the defense that witness lists were not released during the Hayes trial last year.
At the beginning of jury selection, Griffin wrote an article that said that witness lists were released during the Hayes trial. But Komisarjevsky’s defense lawyers attached an affidavit from Chief Public Defender Thomas Ullmann, who represented Hayes, stating that those witness lists were not released.
It is not known how many names are on the defense witness list, but a news article published in March quoted a defense lawyer that there would be about 58 names on it.
Defense lawyers and prosecutors are constrained from talking about the case by a gag order issued in March by Judge Blue.
The defense motion for reconsideration suggested amending their witness list by redacting 25 names and releasing that list.
That is essentially the same suggestion made by Judge Blue on the first day of jury selection on March 16.
The state had no objection to releasing its witness list. However, the defense pointed out in its motion that the prosecution witness list contains the names of police officers and members of the victims’ family who would not be affected if it were made public.
During the Hayes trial, some of the defense witnesses and the public defenders were the targets of hate mail and threats.
One witness, who testified reluctantly about employing Hayes as a dishwasher, said she received threats and anonymous Internet bloggers attempted to organize a boycott of her restaurant in retaliation for her testimony about the defendant’s demeanor on the job.
Komisarjevsky’s defense lawyers also noted that their client’s parents were forced to move from their Cheshire home because of threats and hate messages.