Among the many things a lawyer learns is where to sit in a courtroom. In Connecticut, there is an unwritten custom that parties with the burden of proof sit closest to the jury. Hence, plaintiffs and the State get the premiere seats at trial, the ones closest to the jury. This custom is supported by no case law or court rule. It’s simply an unchallenged practice.
The one and only time I saw this rule challenged involved a good friend of mine, Jim Nugent. He waltzed right in to a courtroom, sat down next to the jury box, and waited for the fur to fly. It did soon enough. The state complained to the judge that the defense lawyer was sitting on the wrong side of the aisle. In spire of the lack of any authority to compel seating arrangements, the trial judge ordered Mr. Nugent to change seats.
The issue is now being teed up in a more formal way in the case of State v. Komisarjevsky. This week, the defense filed a motion requesting an order that the parties alternate seating during all phases of the trial. Although the motion does not say so, it appears the defense is asking that the parties rotate seating, perhaps daily, with the defense sitting nearer to the jury some days, and the state doing so on other days.
Propinquity may well be destiny in this case. The state is seeking the death penalty against Mr. Komisarjevsky, the second of the two defendants in the Cheshire home-invasion case to stand trial. A different jury convicted his co-defendant, Steven Hayes, and voted in favor of the death penalty late last year. During that trial, Mr. Hayes sat with defense counsel at the table farthest from jurors. Keeping a man the state regards as a dangerous monster as far away from the jury as possible is a none-too-subtle reinforcement of the prosecution’s message. Why not let the defense put the defendant right next to the jury from time to time? The defense hopes, after all, to show that the man is, despite the allegations, a human being. Why not let the jury see him?
The defense brief in support of the relief sought is impressive. It reminds the trial Judge, Jon C. Blue, that the administration of justice requires close scrutiny of anything that might undermine the presumption of innocence. Counsel for the defendant recites the work of social psychologists who have studied the effect of distance on the affect and the evaluations strangers make of others. The research confirms the notion that we do, indeed, distance ourselves from those we do not trust.
Mr. Komisarjevsy also urges the court to permit him a seat in the courtroom that permits him to have "unimpeded, unobstructed and uncluttered `face-to-face’ confrontation with witnesses against him." The current layout in courtroom 6A of New Haven’s high court, the venue of choice for this trial, situates witnesses right next to the jury box, but places the defendant farthest of all trial participants from any witness. Once again, the message is subtle and direct: the witness and jurors need to work together to keep the monster at bay.
Courtroom seating arrangements are the sort of discretionary calls trial judges make all the time. In Connecticut, the unstated rule yields the benefits of proximity to the party with everything to prove. Why is placing the defendant farthest from the fact-finder as a matter of principle and custom deemed consistent with the pre6sumption of innocence? Shouldn’t it be th other way around? Our criminal law is steeped, at least in theory, in distrust and suspicion about the state.
I do not hold out much hope for a ruling in favor of the defense. Judges are creatures of habit, and the lack of case law to support the contention that seating arrangements matter will give Judge Blue all the reason he needs to reject this request. But in an ideal world, this is a no-brainer: Every hostess knows that seating arrangements matter. It should not take a great leap of jurisprudential insight to conclude that in this case, where a man’s life is on the line, letting him sit near the people who will decide whether he lives or he dies is the just thing to do.