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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 MOVE NEWSPAPER BOXES DURING THE PENDENCY OF TRIAL AND POINTS AND AUTHORITIES IN SUPPORT THEREOF COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel and pursuant to the Fifth, the Sixth and the Fourteenth Amendments to the Constitution of the United States and Article I, 8 of the Connecticut Constitution, and respectfully requests that the Court order the newspaper boxes located on the corner of Church and Wall Streets, just outside the courthouse entrance, removed during the pendency of the trial of this matter, including whatever penalty phase may occur. In support of this request, Mr. Komisarjevsky states as follows: 1. As the Court is aware, Mr. Komisarjevsky has filed assorted motions concerning, inter alia, issues impacting his right to a fair trial. 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)1 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984)). Furthermore, [t]o safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.... And because of the [c]onstitutions pervasive concern for these due process rights, a trial judge may
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With respect to the Supreme Courts holding, Mr. Komisarjevsky incorporates his Motion to Disqualify by reference.

surely take protective measures even when they are not strictly and inescapably necessary. (Citations omitted.) Gannett Co. v. DePasquale, 443 U.S. 368, 378, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Id. 178. 2. Most recently, Mr. Komisarjevsky renewed his request that the jury be sequestered during the pendency of this trial, a request the Court again denied, on September 12.2 3. As seen in Exhibit A, a photocopy from the front page of the New Haven Registers November 8, 2010 edition, a Register box sat within feet of the courthouse steps during the entirety of State v. Hayes, Docket No. CR07-241860. As a result, jurors were forced to walk each day by a series of sensationalistic headlines and images of the victims family. See Ex. B. 4. The Register box remains on the corner outside the courthouse. However, a Hartford Courant box has joined it. 5. If these boxes remain (and Mr. Komisarjevskys separately filed request for a change of venue is denied), there exists a substantial likelihood that jurors will be exposed to highly prejudicial material. In this regard, the Court has separately found, through its September 3, 2010 Order denying the Hartford Courant Companys motion to modify the Courts gag order, 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. Moreover, the Supreme Court recognizes: 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. Mr. Komisarjevsky notes for the record that to the extent the Court, in its denial, relied on the potential inconvenience to jurors, nothing in the law gives weight to such a consideration, particularly as to make it controlling. Indeed, Practice Book 42-22 expressly limits the use of jury sequestration to extraordinary cases, like this one. 2
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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. Consideration [by the jury] of extrinsic evidence is presumptively prejudicial because it implicates the defendants constitutional right to a fair trial before an impartial jury. State v. Asherman, 193 Conn. 695, 736 (1984), cert. denied, 470 U.S. 1050 (1985). 6. Mr. Komisarjevsky recognizes that these boxes implicate the medias First Amendment rights. See, e.g., Southern New Jersey Newspapers, Inc. v. State of N.J. Dept. of Transp., 542 F.Supp. 173 (D.N.J. 1982). However, as the Supreme Court affirmed, whatever rights the media might enjoy must, in appropriate circumstances such as this, yield to Mr. Komisarjevskys right to a fair trial. State v. Komisarjevsky, 302 Conn. at 171 (When the rights of the accused and those of the public come irreconcilably into conflict, the accuseds [s]ixth [a]mendment right to a fair trial must, as a matter of logic, take precedence over the publics [f]irst [a]mendment right of access to pretrial proceedings.; citation omitted). 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.

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 Attorneys for Joshua Komisarjevsky

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

THE COURT

By:

, J.

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 15th 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

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