Evidence is set to begin on September 19 in the trial of Joshua Komisarjevsky, the second of the two men accused of engaging in the brutal home invasion and slaughter of all but one member of the Petit family in Cheshire, Connecticut, in July 2007. The first trial ended in the conviction of Steven Hayes, and his sentence of death. It will take a miracle for Komisarjevsky to avoid the same fate.
This second trial presents a perfect opportunity to test the hypothesis that the personality of a lawyer can make a difference in the trial of a criminal case. Both Hayes and Komisarjevksy are accused of working together to hold the family captive, to assaulting the mother and daughters, to setting the house afire, to attacking the man of the house, who, speaking of miracles, somehow managed to survive the carnage. The evidence against Komisarjevsky will, in substantial part, be a replay of that offered against Hayes.
Even the cast of characters in the courtroom will for the most part be the same. The prosecution is led by the laconic figure of New Haven State’s Attorney Michael Dearington, a man with no stomach for the death penalty but held hostage in this instance by Dr. William Petit’s grim determination to see the men who killed his wife and children strapped to a gurney and pumped full of poison. Both defendants have offered to plead guilty if the state would but stand down on death. The doctor won’t agree. Assisting Dearington is the unflappable and ever-businesslike Gary Nicholson, a man with the sweet disposition of a golden retriever, yet focused here on fetching a corpse or two for justice.
And presiding over the case remains Judge Jon C. Blue, a quirky jurist who is rumored to have lobbied behind the scenes for assignment to this high-profile spectacle. Think Judge Ito knocking at the door of his local Mensa society with a membership application begging for admission. Blue is bright, in a two-dimensional sort of way, the sort of fellow who could no doubt sculpt an amazing figure out of Lego pieces if left alone long enough. But there’s an off-beat quality to his reasoning: like a strung out border collie, he yields quickly and without self-doubt to the idee fixe, regardless of whether that focal point has anything to do with what the lawyers before him are talking about. Courthouse wags quip that it has been a relief to have Judge Blue out of circulation these past couple of years as he presides over the Cheshire affair.
These are the constants in the case.
Comes now the new kid on the block, Jeremiah Donovan, lead counsel for Komisarjevsky. Donovan is assisted in this case by Walter Bansley, Jr., a former military lawyer and one of a handful of men publicly claiming to be the lawyer Tom Cruise portrayed in the film A Few Good Men. A third lawyer, Todd Bussert, is the quiet one, a writer and researcher with rock solid credentials and legal skills.
But Donovan is star of the defense show. One word is sufficient to describe Donovan: beguiling. Donovan and I once had co-defendants in a federal capital case. I watched him unnerve witnesses simply by introducing himself. Donovan has a special intelligence, the sort that will haunt Judge Blue during the trial. Labor, as the judge mightily will, to be seen and appreciated as the most brilliant star shining in the courtroom, the fact is that he will be eclipsed by Donovan: Donovan looks at a keyboard and sees a symphony while Judge Blue bangs away at chopsticks. Things will get ugly, and tense, quick during this trial.
In the Hayes trial, defense counsel Thomas Ullmann, himself a man of considerable talent, worked hard to stay under the radar, to fit within Judge Blue’s shadow. His was a quiet, understated appeal to the decency of jurors. He gambled, and lost, on the proposition that Connecticut was unprepared to kill. This isn’t Texas or Florida, he thought: blood lust doesn’t play here. Ullmann colored within the lines, played nice, and then said goodbye to his client. It was a wise tactical gamble, even if it failed.
I suspect no tiptoeing through the garden of good and evil from Donovan.
Every defense lawyer worth his salt know there are three objectives to a trial: win an acquittal if you can; preserve error for appeal; and, at every chance, force error. It is this last role, the business of probing the weak joints in the intersection of the state’s case and a judge’s understanding of the law, that separates good from great trial lawyers. The fact is that the law is not geometry. All of the pieces of a case do not fit together in a neat and tidy package capable of being described as if it were some theorem. Legal doctrines often conflict with one another. Choices must be made, and those choices often reflect biases and perspectives that judges work hard to hide. When Donovan and Blue go toe to toe in this case, Judge Blue knows he will be facing an intellect superior to his own: how will this most vain of jurists, one who boasts of his modesty, cope with the daily assault on his self image?
Oh, there will be other differences beside mere personalities in this case. Komisarjevsky’s prison diaries, his semi-Nietzschean gloating about good, evil and the will to power, will offer a tour of the dark side that the Hayes trial did not afford. Steven Hayes was an ox; Komisarjevsky aspires to be a fox. The footwork of the two killers is different, their psyches offer studies in different shades of black. Presenting Komisarjevsky’s darkness to a jury requires a master’s touch. The young man is lucky to have Donovan at his side.
But in the main, the Komisarjevsky case is a replay of the Hayes trial. After all, the Hayes defense team offered substantial portions of the Komisarjevsky diary to jurors to divert blame from Hayes. The difference between the two cases comes down to this: defense lawyers.
Lawyers sometimes say that a case is so bad there is nothing even a great lawyer could do to defend a man: “a potted plant could have done as well,” the saying goes. Round two of the Cheshire home invasion cases will test this. The same judge, the same prosecutors, largely the same facts will be on display in the same courtroom, before the same press corp fawning over the surviving victim, making him a rock star of rage. Onto this familiar and dreary stage steps Jeremiah Donovan. I am betting the trial looks and feels different with Donovan at the center of the stage. Sometimes lawyers do matter. A great one can be a game changer.
I wonder if Judge Blue sits up nights worrying about what Donovan will do next, practicing lines that will make it appear as though there is no line of attack, no legal theory, that the judge has not already considered, mulled and dissected. I wonder, further, whether the judge knows that this is but conceit. Watching Donovan at work in this trial will be a treat simply because his is the rare sort of genius, the charmer’s genius, that has a candid soul wondering just what will happen next. I say the real trial in this case pits Judge Blue v. Jeremiah Donovan. The judge may hold the gavel, but Donovan isn’t appealing to the judge: he wants the hearts and minds of the twelve folks the state wants to turn into killers. Judge Blue will fight to keep Donovan from beguiling the group. The judge might succeed, but doing so will test him ways he has not yet been tested. How the judge responds will determine not just the result of this trial, but, I suspect, what happens on any appeal of a conviction that seems all but inevitable. The contest between Judge Blue and Donovan is the trial I will be watching.