I am sure Superior Court Judge Roland D. Fasano really didn’t mean to begin laying the foundation for post-conviction relief as to Joshua Komisarjevsky. But the practical import of his decision to place Attorney Jeremiah Donovan on what amounts to a form of existential probation could benefit Komisarjevsky in years to come. It would have been far simpler and more elegant for Fasano to decide the contempt issue before the court.
Donovan appeared at a hearing to show cause as to why he was not in contempt of a court order barring any of the lawyers in this now-infamous case from commenting publicly. There is no question Donovan violated the order, standing on the courthouse steps during the trial of Steven Hayes to decry the perception that Komisarjesky had raped a child during the Cheshire home invasions during the summer of 2007.
The jury in the Hayes case is set to begin deliberations on whether the state should kill Hayes. Komisarjevsky’s trial begins in January. Some feared that if Judge Fasano ordered a criminal contempt proceeding, Donovan could be jailed, derailing the Komisarjevsky trial.
So the judge took what he considered to be the Solomonic route. He condemned Donovan’s comments as an affront to the court, but deferred a decision on what to do about it. Among other things, the judge wants to see how Donovan behaves in the future. Will this affect how Donovan defends Komisarjevsky?
Defense lawyers have three roles at any trial: Win an acquittal if possible, a task that appears to be all but impossible in Komisarjevsky’s case; preserve issues for appeal so that the client has options in the event of a conviction; and, significantly, force error. This latter role requires a lawyer to be vigorous, to press the known boundaries of the law so as to put pressure on both the state and the judge such that legal errors occur that might result in a new trial for the client in the event of a conviction.
This business of forcing error is tricky business. All lawyers, defense and prosecution, are officers of the court, but only the prosecution has a duty to do justice. A defender’s role is unencumbered by the affirmative duty to see that justice is done. Sometimes the best defense is a wholesale attack, spotting inconsistencies in the law and the trial judge’s ruling; looking for opportunities to force rulings and decisions that create opportunities on appeal. It is not the sort of role that makes a defense lawyer popular with judges or prosecutors. But insiders acknowledge that it is part of the job.
How is Donovan to be vigorous when he knows the court is sitting on a decision that could result in his incarceration? I know Donovan, so I doubt he will pull a punch. But this is a capital case. The state seeks his client’s life. The battle to save Komisarjevsky will be pitched. Is Donovan now laboring under a cloud of concern over his own fate?
When the government opens a criminal investigation of a lawyer, the lawyer’s clients are informed because of the danger of a conflict. Will the lawyer pull a punch or seek to curry favor with the prosecution because his own fate is in question? Clients are entitled to conflict-free representation.
In some cases, the potential conflict between a lawyer due to the danger of conflicting loyalties can be waived. But in other cases, no waiver is possible. Thus, years ago, the state Supreme Court ruled that a Waterbury lawyer who tried a case for a client while himself trying to appeal his conviction for the murder of his wife labored under a conflict that could not help but to have resulted in harm to his client.
I am not suggesting that the sanctions for criminal contempt are so severe as to render a lawyer incapable of serving in any case. But in the context of a capital case, where the state seeks the ultimate sanction, our courts are extra careful to assure that a defendant enjoys a conflict-free defense. It is an open question whether Judge Fasano’s invisible leash on Donovan presents such a conflict. But I suspect that this will be one of the first issues to be litigated if and when Komisarjevsky is sentenced to death. I know that if I were fighting for my life, I would not want my lawyer to be encumbered by what a judge might or might do depending on how the judge’s fancy strikes him.
Score one for Joshua Komisarjevsky in the forced error department, and his trial has not yet even begun.
Reprtinted courtesy of the Connecticut Law Tribune,