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Politics & Government

Unsealing Witness Lists Is 'Fundamental for the Administration of Justice'

Newspaper loses attempt, for now, to end stay and force the release of the Komisarjevsky witness lists.

Lawyers for the Hartford Courant have argued that unsealing the witness lists for the Joshua Komisarjevsky trial is "fundamental to the administration of justice."

The Courant made that claim in an objection motion it filed with the Appellate Court on Tuesday opposing that court’s extension of an order to stay the release of the witness lists. (See attached pdf)

But the Appellate Court disregarded the Courant’s argument and extended its stay until the Connecticut Supreme Court decides if it will review Komisarjevsky’s appeal on the witness lists matter.

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Without the extension, the stay would have expired today.

Komisarjevsky is facing the death penalty for the Cheshire home invasion triple homicide of a mother and her two daughters. His court-appointed public defenders have waged a battle with the Courant since mid-March to keep the witness lists sealed and out of the hands of the news media and the public.

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The newspaper’s latest salvo may be aimed at countering the defense lawyers’ argument that releasing the lists could jeopardize Komisarjevsky’s right to a fair trial with a constitutional argument of its own, that public access to court documents is essential to guaranteeing defendants their legal rights.

In mid-April, Quinnipiac Law School Professor William V. Dunlap, who teaches constitutional and criminal law, referred to the witness list battle as 

In their objection brief, the Courant’s lawyers said: "Appellant fails to support or explain his bald contention that ‘no credible claim can be made that the due administration of justice requires lifting of the stay before the resolution of the Petition for Certification or, if granted, this appeal.’"

The Petition for Certification is the Komisarjevsky’s defense’s request for the Supreme Court to review and rule on the matter.

Although the Appellate Court sided with the Courant on a 1990 case, State v. Figueroa, that involved almost identical issues, Komisarjevsky’s lawyers noted that the Supreme Court never reviewed it, and this time it is a death penalty case.

"This contention is refused by the presumption that the witness list is a public record," the Courant’s lawyers continued. "It further completely ignores the strong and fundamental constitutional and public policy arguments in favor of disclosure of public records, especially in light of the detailed finding by the Trial Court that Appellate failed to present evidence sufficient to overcome the presumption of access."

That referred to a requirement by the trial judge, Superior Court Judge Jon C. Blue, that the defense submit a list of specific names of witnesses along with supporting affidavits to show that releasing the witness list would jeopardize Komisarjevsky’s rights.

His defense lawyers claim that publicly identifying Komisarjevsky’s witnesses could make them targets of threats and intimidation.

The Courant, however, argues that the public’s right of access to court documents and records is a fundamental protection rooted in English Common Law that guarantee accused people the right to an open trial.

"Because this right of access is so fundamental to the administration of justice, it is clearly incorrect to assert that the Courant cannot make a ‘credible claim’ that its rights are at issue."

The Courant concludes: "In this case, the fundamental nature of the right of public access clearly implicates the ‘due administration of justice,’ which would be unjustifiably impaired by any further stay in this case."

Nevertheless, the Appellate Court granted an extension of the stay.

No jurors were picked during jury selection Wednesday for the second Cheshire home invasion trial at New Haven Superior Court. A source at the courthouse said the state used one peremptory challenge yesterday, bringing the totals used by the defense and the prosecution nearly equal.

The source’s unofficial count said the defense has used 36 peremptory challenges and the prosecutors have used 35.

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