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Komisarjevsky Witness List at Issue

Defense argues releasing list could jeopardize defendant's right to a fair trial.

Superior Court Judge Jon C. Blue on Friday ordered the release of for the trial of Cheshire home invasion defendant Joshua Komisarjevsky, but immediately stayed the order for a week to give defense lawyers an opportunity to appeal it.

Judge Blue’s order responded to a motion by theHartford Courant for release of the witness lists (see pdf documents).

It came at the , during which defense lawyers and prosecutors called about 80 prospective jurors to Judge Blue’s courtroom in New Haven, but did not accept any for Komisarjevsky’s trial jury. They will try again when jury selection resumes today.

The names on the witness lists were submitted for the jury selection process, so that prospective jurors who knew any of the witnesses could be identified and excused for a conflict of interest.

Prosecutors said they did not object to releasing the witness lists to the newspaper, which would also make them available to other news organizations.

But Komisarjevsky’s defense team argued that releasing the lists could have a "chilling effect" on their client’s right to a fair trial.

In a written memorandum filed Friday, defense lawyers Jeremiah Donovan, Walter C. Bansley and Todd A. Bussert said people perceived as sympathetic to Komisarjevsky have received threats, just as threats and hate mail were received by persons perceived as sympathetic to his co-defendant, Steven Hayes.

The memorandum said Komisarjevsky’s parents lost custody of his minor daughter and were forced to move out of their home because of threats.

It included an attached affidavit stating that "numerous potential penalty phase witnesses have resisted speaking with the defense for fear of what may occur to them if they are associated publicly with Mr. Komisarjevsky."

Defense lawyers also offered examples of "insidious and pervasive animus," or hatred, directed at Komisarjevsky or Hayes and those perceived as associated with them, which they said confirms the fears of potential witnesses that the same things might happen to them.

In one instance during the Hayes trial, opponents of a political candidate sent mailings to residents of Southington that included photos of Komisarjevsky and his family’s home, and printed the address, because the new occupants displayed a lawn sign supporting the candidate.

In another, a restaurant owner who had employed Hayes as a dishwasher and was called to provide testimony for mitigating factors during his trial received harassing phone calls and email, harsh criticism on the Internet, calls for a boycott of her restaurant and death threats.

"The threats became so frightening that she called police," reported a Hartford Courant story quoted in the memorandum.

In a talk on Thursday at the in Woodbridge, detailed numerous other death threats and hate messages directed at him when he defended Hayes, who was convicted in a separate trial in 2010. At least two threats led to police investigations and the State Police provided him extra security, he said.

Komisarjevsky’s defense lawyers said the Practice Book, which sets out rules for trials, allows "the sealing or limited disclosure of materials in connection with a court proceeding" in order to protect witnesses from potential threats, reprisals or intimidation.

They argued that Komisarjevsky’s right to a fair trial overrides the public interest served by the news media’s right of access to the witness lists.

, Judge Blue granted a defense request to seal the witness lists. The following week, The Courant filed a motion to vacate the order.

In his decision, Judge Blue noted that witness lists, unlike discovery documents, "are intended to be public." Therefore, there is a "presumptive right" for access to them, he said.

He also observed that the defense offers "general concerns," but no specifics about threats or intimidation against witnesses. Therefore, he granted The Courant’s motion, but also issued a stay until April 8 to allow the defense to appeal.

Also on Friday, the state  voted to recommend passage of a bill to require the state Department of Correction to follow accepted .

The bill was introduced because while Hayes was incarcerated prior to the 2007 triple homicide, he read novels from the prison library that contained scenes depicting violent murders.

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