STATE OF CONNECTICUT DOCKET NO. CR07-241860 STATE OF CONNECTICUT, v. JOSHUA KOMISARJEVSKY.

: : : : SUPERIOR COURT JUDICIAL DISTRICT FOR NEW HAVEN AT NEW HAVEN SEPTEMBER 15, 2011

DEFENDANT JOSHUA KOMISARJEVSKYS MOTION TO STRIKE THE JURY PANEL AND FOR A CHANGE OF VENUE AND POINTS AND AUTHORITIES IN SUPPORT THEREOF COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel and pursuant to General Statutes 54-82f, to Practice Book 42-12, to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and to Article I 8 and 19 of the Connecticut Constitution, respectfully moves that the Court strike the regular and alternate jurors scheduled to be empanelled on Monday, September 19, 2011. In support of this request, Mr. Komisarjevsky states as follows: 1. The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams, 425 U.S. 501, 503 (1976). [T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. State v. Cubano, 203 Conn. 81, 88 (1987) (citing Irvin v. Dowd, 366 U.S. 717, 722 (1961)); see Morgan v. Illinois, 504 U.S. 719, 727 (1992) (due process alone has long demanded that, if a jury is to be provided the defendant the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment). Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the [c]onstitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. Id. Where a potential juror has

such a fixed and settled opinion in a case that he cannot judge impartially the guilt of the defendant, he should not be selected to sit on the panel. Id. 89 (citing State v. Ziel, 197 Conn. 60, 66 (1985)). To succeed on a claim of bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact. Id. (citations omitted). Said differently, the challenging party challenging must demonstrate that the juror in question exhibited actual bias: That is, either an express admission of bias, or proof of specific facts showing such a close connection to the circumstances of the case that bias must be presumed. Ward v. United States, 694 F.2d 654, 665 (11th Cir. 1982). In the language of Lord Coke, a juror must be as indifferent as he stands unsworne. His verdict must be based upon the evidence developed at the trial. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burrs Trial 416(1807). The theory of the law is that a juror who has formed an opinion cannot be impartial. Irvin v. Dowd, 366 U.S. at 722 (citations omitted) (emphasis added). 2. Appreciating the Courts interest in protecting the record, the issue presented through this motion is not whether the selected jurors are exceptionally intelligent, as the Court remarked on September 12, 2011, when the issues underlying this motion were raised, and before. Similarly, it is not a question of whether the jurors perceive or believe themselves to be fair any assessment of the same is little more than unqualified speculation based on limited interactions with these individuals in an environment that, as Dr. Penrod explained, is ill-suited for candor.1 See 2/23/11 Tr. (morning) at 82 (empirical research demonstrates that a very high proportion of those studied say they can be fair and impartial jurors while also saying that the
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Mr. Komisarjevskys says this notwithstanding the Courts experience, as noted in denying his request for juror questionnaires, that most venire panelists tell the truth most of the time. 2

defendant is guilty); id. 85-86 (jurors give the socially desirable responses in open court; people in general do not want to say that they cannot be a fair and impartial). 3. The issue presented through the instant motion is juror prejudice(s) and partiality, namely the selected panels ability to serve relative to Mr. Komisarjevskys constitutional rights. No right ranks higher than the right of the accused to a fair trial. State v. Komisarjevsky, 302 Conn. 162, 177 (2011) (holding unanimously that the trial court abused its discretion in failing to give due consideration to defendants sixth amendment rights)2 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984)). 4. Along these lines, instructions do not cure the problem. 2/23/11 Tr. (morning) at 98. The ineffectualness of the Courts instructions as well as the defect of subjective assessments made during individual voir dire can be seen through the selection procedures involving venire panelists Jenny Medina-Morris, whom the defense struck following the denial of a request for cause, and Darron Vigliotti and Jamie Bowen, who were both accepted only to be struck promptly for cause. Jenny Medina-Morris The defense challenged Ms. Medina Morris for cause based on the fact that she was a non-native English speaker, who presented with comprehension problems, as well as based on her statements that she considered Mr. Komisarjevsky to be guilty and that she expected the defense to present evidence on his behalf. 4/20/11 Tr. at 41. The Court rejected these arguments. Id. 51, 52. Regarding the latter, the Court found Ms. Medina Morriss below-quoted statements resulted from simple confusion over the concept of the presumption of innocence.
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With respect to the Supreme Courts holding, Mr. Komisarjevsky incorporates his Motion to Disqualify by reference. 3

Q Okay. Well, based on what you ve read and based on whatve seen on television, do you believe Mr. Komisarjevsky to be innocent as he sits there now, as you look at him? A No, I dont think so. THE COURT: Well, let me just ask you -- you might have made -- because this is something that confuses a lot of people. Youve heard of the presumption of -have you heard of the presumption of innocence? [A]: Yes, of course. Id. 30. The Court went on to find Ms. Medina Morris understood the presumption of innocence. Upon being struck, Ms. Medina Morris began to exit the courtroom. She stopped short at the well gate, however, and shouted Killer. Asshole in Mr. Komisarjevskys direction. Id. 54. This outburst revealed Ms. Medina Morriss true sentiments about Mr. Komisarjevsky and her true beliefs about the presumption of innocence and the defendants right to remain silent. It is thus abundantly clear that when Ms. Medina-Morris responses to the Courts efforts to rehabilitate her in these areas were acquiescence to the Courts authority and/or discomfort with telling the truth. Darron Vigliotti Original first alternate Darron Vigliotti was selected on May 16, 2011, having stated, without hesitation and with steadfast assurance that he could presume Mr. Komisarjevesky to be innocent and that he could be fair and impartial and would not permit the wealth of pretrial publicity to which he had been exposed to influence him and the decision he would make if selected as a juror. Not unlike the other jurors selected, Mr. Vigliotti offered these assurances in response to instructions-related questioning from the Court after he admitted that he had previously believed Mr. Komisarjevsky to be

guilty and that he believed that the community at large desired that Mr. Komisarjevsky be convicted and executed. Mr. Vigliotti, , a high school science teacher, asserted that he could set aside his preconceptions and decide the case fairly and impartiality because he was trained to make decisions based upon facts, as opposed to supposition, because he was a scientist. Mr. Vigliotti also stated in a very confident manner that he could withstand pressure from other jurors and community members if he were to vote in a manner inconsistent with what he believed the community and other jurors believed should be done in this case. Before excusing Mr. Vigliotti, the Court gave the standard admonitions not to speak about the case with anyone.3 Not a day later Mr. Vigliotti re-appeared to inform the Court in no uncertain terms that he could not serve. 5/17/11 Tr. at 2. While mentioning financial issues, Mr. Vigliotti made clear that (arguably illegal) outside pressures affecting his ability to be fair was the reason for his change of heart. Mr. Vigliotti stated that upon returning home he received a call from a coworker wanting to know if he had been selected as a juror in the Komisarjevsky case because there were already Facebook entries so indicating. Id. 7. Mr. Vigliotti also indicated that many people approached him at the school upon his arrival that morning, asking about his selection and offering opinions about the case. Id. With regard to the Courts direction that he tell others not to discuss the case in his presence, Mr. Vigliotti answered: I just really honestly dont feel like I had the ability to do that. I mean, I didnt have the ability to do it today very much. I mean people would say things and I didnt know how to respond. It was very distracting. Id. 8. Mr. Vigliotti further stated that he didnt know whether he had the ability to follow the
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Lacking a transcript from May 16, the foregoing reflects counsels notes from that day, which, on information and belief, are substantively accurate. 5

courts instruction not to discuss the case with other people. Id. Mr. Vigliotti stated that he was no longer comfortable with the idea of the presumption of innocence: I thought about it a lot and I dont think that Im comfortable necessarily with the idea of not guilty. Id. 9. In response to the question of whether others were commenting about Mr. Komisarjevskys guilt, Mr. Vigliotti stated: I dont know what you said but you know hes guilty and I would, you know, they should do various suggestions. Id. Questioned further about whether people were suggesting to him that Mr. Komisarjevsky be killed Mr. Vigliotti said pretty much. Id. The Court thus excused Mr. Vigliotti for cause. Id. 12. Jamie Bowen
Jamie Bowen appeared on May 26, 2011. The defense attempted to excuse her for cause based on her knowledge of the facts of the case, which resulted from the extensive pretrial publicity. 5/26/11 at 64. Consistent with the Courts ruling whenever such a challenge was raised but the juror separately averred an ability to be fair and impartial, the challenge was denied. Id. Ms. Bowen then selected and given the standard instructions and

admonitions. Id. 65.

Ms. Bowen did not last two hours before she returned, upset and crying, to say that she could not serve. Id. 70. Ms. Bowen explained that upon returning home and informing her babysitter that she had been selected as a juror in this case, the babysitter said: Hes the one, hes the one that raped and killed that little girl, the one thats only three years older than your daughter. Id. 69. Notwithstanding Ms. Bowens reported attempts to avoid the

conversation and walked away, the babysitter persisted, saying the last jurors, the
pictures, people had to leave and had they had to leave cause they were so bad. Id. The exchange illustrates the extreme emotional nature and bias that members of the New Haven

County community (i.e., the jury pool) possess regarding this case, as well as the publics widespread, though often misleading, knowledge. Regardless, Ms. Bowen was so upset discussing it that the Court took a recess so that she could compose herself. Id. 70. Whereas the Court remarked that Ms. Bowen appeared to be a very intelligent, levelheaded person just two hours early, the scenario demonstrates the pernicious emotional effect this case has had upon the community at-large. Id. 72; see also id. 73 (I last saw you at one. Its now three. I mean, it almost took more time to question you than it did for you to turn around). The

Court eventually excused Ms. Bowen for cause. 5. Through his Motion for Change of Venue filed on February 4, 2011 and evidence offered in support thereof, all of which is incorporated herein by reference, Mr. Komisarjevsky challenged his ability to receive a fair trial in the New Haven Judicial District a position in which he has and does persist. Dr. Penrod spoke to, inter alia, empirical evidence demonstrating the community prejudice phenomenon, wherein jurors attune and shape their decisions to the community sentiment about a defendant in pretrial publicity cases. 2/23/11 Tr. (morning) at 81. Dr. Penrod thus opined that jurors in this case are going to feel compelled to give the death penalty given their knowledge about this gruesome case and the clear community sentiment toward guilt. 2/23/2011 Tr. (afternoon) at 4. 6. In denying the change of venue motion, on February 28, 2011, the Court cited, inter alia, to the fact that jury selection had yet to begin and to the parties right to individual voir dire. See State v. Komisarjevsky, 2011 WL 1168532 (Conn.Super. 2011) (unpublished). 7. On June 8, 2011, Mr. Komisarjevsky filed a Motion for Additional Challenges with a supporting memorandum, which are incorporated herein by reference. Consistent with Dr. Penrods earlier testimony, that motion referenced the various forms of juror prejudice evident in this case. Moreover, Mr. Komisarjevsky took issue with the Courts reliance on and 7

interpretation of Skilling v. United States, __ U.S. __, 130 S.Ct. 2896 (2010). As we there argued: Skilling is factually distinguishable from the instant case in several readily apparent and significant respects. There were 4.5 million people in the Skilling jury pool; although news stories about Skilling were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight; and the decibel level of media attention diminished somewhat in the years following Enrons collapse four years before Skillings trial. Id. 2915-16; id. 2916 (news stories about Enron did not present the kind of vivid, unforgettable information we have recognized as particularly likely to produce prejudice, and Houstons size and diversity diluted the medias impact); id. 2922 (news stories about Enron contained nothing resembling the horrifying information rife in reports about Irvins rampage of robberies and murders). Here, there are, according to Jury Administrator Karen Berris, approximately 90,113 people in the New Haven Judicial District pool for the current court year (or two percent (2%) the size of the Skilling pool)1, with that number remaining relatively constant from year-to-year, and a reported 99.5 percent case recognition in this District and 85.3 percent of people believing Mr. Komisarjevsky is definitely or probably guilty (as compared to 64 percent for Skilling); the too often salacious news stories surrounding this case, especially those involving or stemming from public and private comments from key state witness William Petit, his family and his supporters as well as those focusing on Steven Hayess efforts to shift blame where it does not belong, have been unkind (an understatement by any measure), vivid, blatantly prejudicial and factually inaccurate; and this trial is occurring immediately on the heels of the Steven Hayess trial, which involved a death sentence following conviction, notwithstanding Mr. Komisarjevskys request for a one-year continuance. Also notable about the jury in Skilling, eleven of the seated jurors and alternates reported no connection at all to Enron, while all other jurors reported at most an insubstantial link. See, e.g., Supp.App. 101sa (Juror 63) (I once met a guy who worked for Enron. I cannot remember his name.). Id. 2920. More importantly, when asked whether they had an opinion about ... Jeffrey Skilling, none of the seated jurors and alternates checked the yes box. And in response to the question whether any opinion they may have formed regarding Enron or Skilling would prevent their impartial consideration of the evidence at trial, every

juror-despite options to mark yes or unsure -instead checked no. Id. 2921.
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*** On information and belief, the total population of the New Haven Judicial District is roughly one-tenth of Houston, the countrys fourth largest city.

8. More recently, the Connecticut Supreme Court has recognized: There is no doubt that the attention generated by this case is extraordinary. As the trial courts own statements in these proceedings indicate, this case has received intense media coverage, particularly in this state, but also nationally and even internationally. At a hearing on the defendants motion for a change of venue, one defense witness submitted the results of an Internet search that had yielded more than 1800 media reports on the cases involving the defendant and Hayes. See State v. Komisarjevsky, Superior Court, judicial district of New Haven, Docket No. CR07241860, 2011 WL 1168532 (February 28, 2011). The trial court expressly acknowledged in its decision denying that motion that this publicity, in turn, has aroused intense public interest. Id. Indeed, according to evidence from that change of venue hearing, the percentage of the public who are aware of this case makes it one of this states most notorious cases, at least in recent memory. State v. Komisarjevsky, 302 Conn. at 179-80. This is significant, in part, because [a] defendant need not show actual [juror] prejudice in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. State v. Townsend, 211 Conn. 215, 225 (1989) (citations and internal quotation marks omitted). Additionally, through its September 3, 2010 Order denying the Hartford Courant Companys motion to modify the Courts gag order the Court (Fasano, J.) found that there exists a substantial likelihood that jurors will, at least, inadvertently, be confronted with material highly prejudicial to the case notwithstanding appropriate instructions by the trial court.

9. As noted in our June 8 motion, jury selection proved Dr. Penrod prescient. In particular, each of the jurors scheduled to appear Monday possesses detailed knowledge of the case knowledge and familiarity that would ordinarily result in a prompt excusal for cause4: Juror #1: I guess when the crimes involved were first committed, I read about them in mostly the New York Times, but also whatever newspapers I would sort of come across on Google news, and then occasionally I would see tome TV news stories about it. 3/17/11 Tr. at 86. I think that the home was, I guess, the term has been used in the media, the home was invaded, three of the four individuals were raped and killed, and the fourth individual was beaten, and then the house was put to fire. Id. 86-87. Juror #2: Basically, a murder occurred in Cheshire, and it was pertaining to the family members that, you know, one person or two people, you know, were the culprits of a murder. 3/21/11 Tr. at 5. Juror #2, whose frequency of hearing about the case was a five or seven on a scale of one to ten, was further aware that three or four people were killed in the incident; that two individuals were arrested; and that the state convicted Hayes and is going to put him to death. Id. 5, 25. Juror #3: That the woman the woman was followed from Stop & Shop to her residence. I guess they waited outside and at some point, you know, they kind of scoped out the neighborhood, the area. Later that night they broke into a basement where Mr. Petit was, beat him up, tied him up, went upstairs or proceeded upstairs and raped the young girls, Ms. Petit, beat them up, killed them, murdered them, and set the house on fire, tried to escape. Or, excuse me, missing the part where I guess she went to the banks to take out x amount of dollars or, you know, she was being robbed. 3/23/11 Tr. at 11. Juror #3 described these as facts that Ive heard, that Ive been subjected to probably in the news and then hearing it at work or wherever the conversation takes place, you know, learning different things, and noted having seen William Petit quite a bit on the news. Id. 12, 14. Juror #4: I understand a family was lost that day. I understand that a family, a woman and her daughters were murdered in their own homes. The daughters were, and I I dont remember the details, but I know that there was also sexual abuse to some of them, including the daughters. 4/4/11 Tr. at 2. Juror #5: Having said she did not know much about the case, Juror #5 proceeded to say that it happened in Cheshire . Um, ah, two daughters and a and her the mother

Whereas transcripts for all selected jurors were ordered some months ago, the following contains excerpts from the transcripts produced to date. 10

were murdered. Um, and the father I guess was there but he survived, um and their house was burnt down. And I guess there was two suspects. 4/7/11 Tr. 5-7. Juror #7: I know there was a murder in Cheshire, Connecticut. 4/19/11 Tr. at 7. I cant exactly remember the date and that there were and I know the name of the family from seeing it, you know, hearing it. And I know that there was a trial because I drove past the courthouse everyday on my way to work and that there was one defendant then and that there is another defendant now. Id. 8. I mean I think when it first happened we, you know, were, you know, horrified that that these deaths had happened Id. 24. Juror #8: Stated that he was following the case pretty much [since] day one. I remember talking about it in the break room at work for my job at the time. 4/20/11 Tr. at 4. I remember, I think it the victims were at the I think it was it was was it a food store of some sort and they were followed home and then they broke in some point later on. They, you know tied them up. They I think they raped the wife, I believe, and then they took her to the bank, I believe to try and withdraw money. They came back. He tried to start a fire or did start a fire. They killed three of them and then they tried to drive away, the police stopped them. Id. 5. The other defendant [w]ho was wasnt it Hayes, I think his name was. Id. 6. I remember he tried to commit suicide, too, I remember. I think he tried to overdose on his pills. Id. 7. Regarding the books that were written on the case: Ive seem them in the bookstore. I flipped through them a couple of times. I never actually read it though. Id. 21. Juror #9: What I know is that there were from what Ive heard there were two men who went into a house and I believe the the father, who is Dr. Petit, was, I think, asleep in another room and they came in and Im not sure if they had, you know, hit him or something happened, but then they ended up the the mother I dont know if the girls woke up too, but they ended, like, at that was, like, in the evening, I think. And then the next day I know that the the wife and mom went to the bank to withdraw a sum of money and I think that she told the tellers there that I dont know if she told them details or that she was being held captive or whatever, but she indicated something to them and they did report that to the police. And then I know that there are charges I think there were charges of sexual assault as well and then I know that the house was burned down and Dr. Petit did manage to escape, but that the other three died in the fire. 4/28/11 Tr. at 5. I know that Steven Hayes was tried and convicted. I believe he was sentenced to death. Id. 6. Juror #10: Well, I understand a couple of guys broke into a house, they I guess they tried to make it look like a robbery, I believe, and they killed some people, noting that three people died and he thought two people were arrested. 5/4/11 Tr. at 5. 11

Juror #11: I was not really following the case, and that it was a terrible tragedy. From what I have read two individuals broke into the home of Dr. Petit and subsequently his wife and two daughters were killed. 5/5/2011 Tr. at 4. Juror #12: [I]t was a, you know, a very very heinous crime. There was a home breakin, people were killed, a wife and daughters were killed, the house was set on fire, and thats relatively as far as I know, is it. 5/12/11 Tr. 3. I remember there was a lot of attention a lot of media coverage, a lot of articles, a lot of play in the news about it. I dont remember any, you know, any specific details that stood out [but see supra] because it was hard to piece kind of all of it together. Id. 13. Alternate #1: I believe it was a robbery and I believe Mrs. Petit was taken to the bank. Not sure if it was just her, perhaps one of her daughters was at the bank with her. Then they went back to the house. I believe Mrs. Petit and maybe one of the daughters was sexually assaulted. The house was set on fire. I believe Mr. Petit was tied up and escaped. 5/19/11 Tr. at 4. Alternate #2: So, two guys broke into a house and as far as I can remember, what ended up happening was they they tied -- they tied up the father and put him in a closet, I believe they knocked him out, left him for dead. The mother and the two daughters, they they had the moth they- they took the mother, they kidnapped the mother, made her go to a bank to take out money. When she got back to the house, they they set the house on fire, and Im pretty sure that the girls were either locked in their rooms or tied up in their rooms, and everyone in the house passed away, except for the dad. The dad got out somehow, I dont remember. And there was some type of sexual assault between the mom and one of the daughters. A nd, then, when the cops for there, they tried to back into the they tried to back into the cruiser or run into the cruiser, and they the cops caught them. 5/25/11 Tr. at 16. In terms of frequency of hearing about the case on the news, Alternate #2 stated: I Maybe Maybe once a week, when it was very, I mean, when it was being talked about a lot Maybe once or twice a week, Im not I dont watch the news a lot. So And, then, maybe, over the months, here and there, you would hear something about the case coming up in the news and it would be a two minute segment or something like that, so. Id. 5. Alternate #3: Well, the morning that it happened, I went to work, and and I dont know why, I guess I was rushed out of the house, and I first heard about it at work, and I didnt didnt get all the details. And, then, later during the day, you know, a lot of people were talking about this case, and thats when I started hearing more and more. And, then, I listen to. ---- I I would say that, your honor, that there people were

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murdered and the house was set ablaze, and the father was beaten, and thats thats basically what I would say. I believe that there were two people arrested. I think right outside the house. One of the men went to the bank and asked Mrs. Petit to withdraw some money, I dont know how much money and that was it, and then, they left. Then, I understand that the bank teller notified her manager, who notified the police. I later heard about that, not not at the beginning. I later heard about that. That the Mrs. Petit was raped and I didnt hear anything about the two girls. I think that [the fire] was started by gasoline. I heard that [William Petit] was beaten and and placed in the basement, and, then, he was able to get up and crawl out into a neighbors driveway. 5/24/11 Tr. 64-66. Alternate #4: It was a home invasion and three people [two daughters and a mom] were killed. And they thought that they apprehended the [two] people that did it. And it happened a couple of years back.. Ah, that the mom was taken to the bank to get money. 5/26/11 Tr. at 6-7, 36. Alternate #5: Being well versed on what happened in the case and having heard about it from the news, Alternate #5 offered: Well, I know it was a home invasion as the news indicated. I know that the parties were I guess doing surveillance at the grocery store. I know the mother was taken to the bank. I know that there was gasoline purchased. I know that the home was set on fire. I know that there was some assaults before the home was set on fire. And I know that the three individuals did perish, unfortunately. I know Mr. Petit was tied up. I know I believe he made it to a neighbors. Unfortunately, the mother and the two daughters werent that lucky. They were murdered in the house. And I believe the two gentleman were apprehended trying to get away. 5/31/11 Tr. at 2-4; see id. 18. Asked familiarity with how many people were arrested: I most certainty am. One gentlemen already had his case and this gentleman is here today. Id. 4. Alternate #6: Recalled a home invasion and that three women were killed. 6/2/11 Tr. at 18-19. Alternate #8: Well, I know that, you know, I know that the family went through a great trauma with the children being murdered and the wife being murdered. I know that. Well, I believe there was stabbings and I know there was a fire. 6/8/11 Tr. at 5.

As Mr. Komisarjevsky has submitted previously, the foregoing record of prior knowledge and formed opinions is consistent with how venire panelists who were not selected presented, and it also substantiates Dr. Penrods survey findings and opinions regarding the pervasiveness the

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public extreme awareness of this case. The Courts steadfast refusal to strike such jurors for cause compelled Mr. Komisarjevsky to make the best out of a very bad-to-impossible situation, suspecting, as was ultimately shown to be the case, that the Court would not grant additional challenges. 10. Jurors also knew of others feelings about Mr. Komisarjevskys guilt and/or the appropriate punishment, in addition to having formed opinions of their own. Juror #3: Heard other venire panelists stating that the two men that participated and theyre evil, things like that and expressing opinions that they were caught red-handed, so guilty. 3/23/11 Tr. at 7-9. When asked about his thoughts concerning Mr. Komisarjevskys guilt, Juror #3 stated that the fact that he was caught on the scene, you know, if thats true, which I, you know, that Ive heard, but if he was caught on the scene, then yes. Id. 13. Juror further stated that Dr. Petits presence might influence his decision in that I mean, putting myself in his shoes, I mean, that would I would feel bad. I would be hurting for him and with him. Id. at 15. Juror agreed that no one around him has ever expressed that Komisarjevsky is innocent and that plenty of people have expressed the opinion that he should die. Id. 25-26. Juror #4: Her husband has assumed that Mr. Komisarjevsky is guilty. 4/4/11 Tr. at 19. Juror #5: Heard other venire panelists [m]ostly negative comments regarding Mr. Komisarjevsky as well as their fear for the for being picked and saying that they could never be biased I mean unbiased towards to and that they felt he was guilty. 4/7/11 Tr. 32. In terms of the community, Um, I think that everyone think hes guilty. Id. 36. Juror #7: Well, if I say they want justice to be served I suppose that would be a platitude Im sure there is must be a sense in the community of wanting some sort of retribution for the death of, you know, a woman and her two children. 4/19/11 Tr. at 25. Juror #8: With co-workers I remember we used to talk about it ... mostly it was about like details of the case. Like how gruesome it was. 4/20/11 Tr. at 7. Juror #8s parents voiced opinions about its a pretty much open and shut case. Id. 25. Regarding community sentiment, Juror #8 offered: I would say probably just angry and want to see a conviction would be from what Ive felt and heard. Id. 26. Some co-workers have voiced opinions. You know thrown in jail or, you know, the death penalty. Id. I remember one off-beat comment from a co-worker said he was going to sleep with a hammer by his bed. Id. 29. Based on others opinions, Juror #8 stated that yes, it

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could be difficult to push everything aside and actually believe Komisarjevsky to be innocent. Id. 26. Probably I would think he was guilty from what Ive read in the paper and what Ive seen on T.V. Id. 30. Juror #9: I mean I think my answer probably would have been, I mean, based on the evidence that I felt at that time and the fact that someone else you know the other person was convicted probably would be that he probably was guilty, but that, you know, he hasnt been tried. 4/28/11 Tr. at 39. I think that the community wants justice. Was you know it was a horrific crime. Id. 41. [T]he response is that whoever did that should absolutely be punished for it. Id. Alternate #1: Agreed that she probable heard some people say that the defendants deserved to die. 5/19/11 Tr. at 32. Alternate #2: Based on what I heard on television, I would say that theres a very big likelihood of him being guilty. 5/25/11 Tr. at 6. Recalls people expressing their opinion that Mr. Komisarjevsky is guilty and no person expressed that they thought he is innocent. Id. at 12. Alternate #3: Others expressed in conversations that the defendants should be put to death. 5/25/11 Tr. at 79. Alternate #4: Agreed that most people who talk about this case have the view that Mr. Komisarjevsky should be convicted. 5/26/11 Tr. at 31-33. Alternate #6: Agreed that most people thought that the defendants should be put to death. 6/2/11 Tr. at 49. Believes that the community wants the death penalty for the defendants. Id. Alternate #8: I mean, you hear people say negative things, you know, people who dont want to listen to the what really happened and theyre ready to say, oh, yeah, throw him, you know, whatever, throw him under the river or under the boat or whatever Plenty of negative stuff. 6/8/11 Tr. at 9. 11. Significantly, the current panel bears striking similarity (if not much worse) to that at issue in Irwin v. Dowd, supra, which led to the vacating of the defendants conviction and sentence: Here the pattern of deep and bitter prejudice shown to be present throughout the community was clearly reflected in the sum total of

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the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. Where ones life is at stakeand accounting for the frailties of human nature-we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief. One said that he could not * * * give the defendant the benefit of the doubt that he is innocent. Another stated that he had a somewhat certain fixed opinion as to petitioners guilt. No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before ones fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, You can't forget what you hear and see. With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt. 366 U.S. 727-28 (citations omitted) (emphasis added). Accordingly, the panel must be struck and a change of venue granted before the empanelment of a new jury that conforms to constitutional requirements. To the extent a suitable venue cannot be found, Mr. Komisarjevsky must be permitted to plead guilty in return for a sentence of life imprisonment without the possibility of release. WHEREFORE, for all of the reasons set forth above, together with such other reasons as may be advanced in any memorandum of law submitted and/or hearing conducted in connection herewith, Joshua Komisarjevsky respectfully prays the Court grant the relief requested.

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Respectfully submitted, JOSHUA KOMISARJEVSKY, Defendant

BY: JEREMIAH DONOVAN, JN 305346 123 Elm Street--Unit 400 P.O. Box 554 Old Saybrook, CT 06475-4108 (860) 388-3750; Fax: (860) 388-3181 donolaw@sbcglobal.net WALTER C. BANSLEY, III, JN 407581 Bansley Law Offices, LLC 20 Academy Street New Haven, CT 06510 (203) 776-1900; Fax: (203) 773-1904 Bansley3@BansleyLaw.com

TODD A. BUSSERT, JN 420221 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495-9795 tbussert@bussertlaw.com

On the Motion Daria Berkowska, Certified Legal Intern

Attorneys for Joshua Komisarjevsky

ORDER The foregoing Motion having been considered, it is hereby Ordered: GRANTED / DENIED

THE COURT

By:

, J.

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CERTIFICATE OF SERVICE I hereby certify that, in accordance with Connecticut Practice Book 10-12, 10-13 and 10-14, a copy of the foregoing was served via hand this 15 day of September 2011 on the following: Michael Dearington, States Attorney Gary W. Nicholson, Senior Assistant States Attorney Office of the States Attorney 235 Church Street New Haven, CT 06510

_______________________________________ Todd Bussert Commissioner of the Superior Court