By CLIVE STAFFORD SMITH
The Hartford Courant
September 20, 2011
Over the years, I've run across a fair bit of prejudice against lawyers. I'll not suggest that lawyers don't earn a certain amount of disdain, but when a white, tobacco-chewing, sheriff implied that if I came through his county after dark I'd never leave it, I felt that was a little excessive. My crime was to be representing a black man from New York who I thought was probably innocent of killing a white policeman in Mississippi. As if that were not enough, I had suggested that the sheriff, "Goon" Jones to his friends, might be an itty-bitsy mite racist because he called black people "colored boys" and had poured moonshine over the head of a civil rights worker before shaving his hair off.
For this reason, I feel a little sensitive when people attack other lawyers who are vigorously defending their clients in capital cases. It is all the more worrying when the assault comes from The New York Times, as happened recently in the case of Joshua Komisarjevsky, who is charged in the deaths of three people in a Cheshire home invasion case that went to trial this week.
Komisarjevsky's lawyer, described in the article as a "lanky raconteur named Jeremiah Donovan", is labeled "a disgrace to the bar" — a quote attributed to Connecticut state Sen. Edith Prague. Sen. Prague, who some might view as a disgrace to the Senate, had previously suggested that "Mr. Komisarjevsky should be hanged 'by his penis from a tree…'"
My organization, Reprieve, has been assisting the defense in investigating Mr. Komisarjevsky'sEuropean family background in order to help establish mitigating information for the defendant. We offer legal support to prisoners around the world who are unable to afford help themselves. Mr. Komisarjevsky's grandfather was a famous Russian theater director who traveled widely in Europe.
To be sure, for the last four years, journalists have feasted on the story of Jennifer Hawke-Petit and her two daughters, murdered in their home in 2007. Mrs. Petit was strangled and a fire was started in the family home, ultimately resulting in the deaths of the two girls in their bedroom. In yards of column inches, readers have been offered the most lurid details, some true, some imaginary. One man, Steven Hayes, has already been sentenced to die for the crimes and, despite doubts concerning his involvement and intentions, Mr. Komisarjevsky faces the same fate.
Few will have heard that it was Mr. Komisarjevsky who first informed the authorities of the murder of Mrs. Petit by Mr. Hayes; still fewer, that Mr. Komisarjevsky told the police that the two girls were still alive, that there was still a chance to save them (the manner in which the police burst in apparently exacerbated the fire such that the girls died). In all the articles baying for blood, never once has it been mentioned that Mr. Komisarjevsky didn't intend that anyone should die.
The New York Times described Mr. Hayes' lawyers — by way of contrast — as taking a "markedly different … gentlemanly tack" in presenting their case. That is all well and good but, as the lawyers concede, when they used this strategy they lost.
With all the hype it is nigh on impossible for Mr. Komisarjevsky to receive a fair trial. Unprecedented levels of prejudice have already been recorded in this case: in a survey of the jury pool, 99.5 percent recognized the case — the highest of any known case ever surveyed, including the Oklahoma City Bombing case. Even more disconcerting, 85.3 percent of the pool believed that Mr. Komisarjevsky was definitely or probably guilty of capital murder. The judge, who took umbrage when Mr. Donovan said it was unjudicial for him to hand out his home-baked cookies to courtroom spectators, had refused to move the trial elsewhere.
I believe in free speech. But I also believe in due process. If the New York Times chooses to descend into the mire, then the case should be moved elsewhere. And Jeremiah Donovan should be lauded, rather than pilloried, for trying to protect the rights of one who even The New York Times has chosen to hate.
Clive Stafford Smith is director of Reprieve, nonprofit group based in London that supports the rule of law.
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