The state Supreme Court will hear arguments in October on whether convicted Cheshire triple murderer Joshua Komisarjevsky should get a new trial based partly on taped police calls from the morning of the 2007 murders that were never turned over to the defense.
Komisarjevsky and Steven Hayes were convicted of murder in the July 23, 2007 home invasion slayings of Jennifer Hawke-Petit and her daughters Hayley Petit, 17, and Mikaela Petit, 11. Both men were originally sentenced to death, but re-sentenced to life in prison without parole after the legislature abolished the death penalty.
John Holdredge and Moira Buckley, lawyers for Komisarjevsky, filed an appeal in 2017 based mostly on new evidence that a number of taped calls that came into the police dispatch center the day of the murders were never disclosed to the defense. Among the 41 calls they claim not to have heard previously were calls from SWAT officers told not to respond to Sorghum Mill Road and a call from the officer it turns out was only a minute away from the Bank of America where Hawke-Petit was driven to withdraw $15,000.
The lawyers are expected to argue that the tapes, whose existence was first revealed by the Courant, could have helped bolster the defense argument that the Cheshire police response to the home invasion was “woefully inadequate” and would have provided fodder for cross examining officers.
Town officials initially said several dispatch tapes from the morning of July 23, 2007 had been destroyed by a lightning strike but later revealed they had discovered backup tapes years later in a filing cabinet labeled “police department offsite storage” in a locked filing cabinet at Town Hall.
The Supreme Court has set October 17 at 11 a.m. for arguments.
The state has argued the calls were irrelevant to the final verdict in the case. In her rebuttal brief Assistant State’s Attorney Marjorie Allen Dauster said the defense had plenty of evidence to raise questions about the police response to the Petit home.
“To the contrary, the nexus between the evidence of police response and motive to fabricate is weak, and the undisclosed evidence was cumulative to that used by the defendant at trial during cross examination and closing argument,” Dauster wrote. “Where the purpose of impeachment evidence is to have the jury aware of facts which might motivate state witnesses to testify falsely, the defendant had ample facts to make his arguments about the police motives in this case.”
Most of the calls came into a second dispatch line at the police station and were made to or from officers’ cellphones. One call provided new information on how close an officer was to a bank where Hayes took Jennifer Hawke-Petit hours into the home invasion.
That call shows that police Sgt. Chris Cote was within blocks of Bank of America at about 9:25 a.m. or slightly more than one minute after Hawke-Petit left the bank with $15,000 in cash. Hayes forced her to drive to the bank and withdraw money. He waited outside the bank in the family’s Chrysler Pacifica and drove the pair back to the Petit home, where Komisarjevsky was with the two girls. The girls’ father, Dr. William Petit Jr., now a state legislator, had been beaten and left tied up in the basement.
Hawke-Petit alerted a bank teller that her family was being held hostage. The calls withheld from the defense also showed officers Donald Miller and Robert Regan called Cote on his cellphone at just after 9:25 a.m, before an all-points bulletin had been issued, to tell him that Hawke-Petit had “just left the bank, possibly with the captors in a Chrysler Pacifica” and that they were heading to the Petit home.
Cote responded he was not too far from the bank. The calls do not make it clear if Cote saw the Pacifica.
Other calls showed that one of the department's hostage negotiators called into the station to see if he was needed and was told no and that 2 SWAT team members on a private job also called to see if they were needed and were told not to come in. They eventually ignored that order and responded to the scene.
In their brief, defense attorneys argue by failing to "disclose these critical calls, the state corrupted the truth-seeking function of the trial and violated Komisarjevsky's rights."
“The calls withheld from trial counsel would have provided substantial additional power to the defendant’s contention that the police, because of their woefully inadequate response to the 911 call, were motivated by guilt, anger and embarrassment to undermine the credibility of his (Komisarjevsky’s) police statements,” the brief concluded.
Hayes and Komisarjevsky were convicted at separate trials and originally sentenced to death, Their sentences were changed to life without parole when the state did away with the death penalty.
Komisarjevsky was transferred to a Pennsylvania prison for security reasons and attempted to kill himself in August of 2016. He is still being held out of state, records show.
Komisarjevsky’s initially went to the Supreme Court in 2013 but the court remanded the issue back to Superior Court Judge Jon Blue, who oversaw both murder trials, for a hearing.
Blue held a hearing and ruled that Komisarjevsky’s trial lawyers did not receive recordings of at least four calls from the morning of the home invasion.
Blue said prosecutors’ failure to disclose the calls showed no wrongdoing but was the result of human error. He said the defense had “plenty of clues” that the calls existed – testimony showed the calls were turned over to defense attorneys for Hayes — but that there was “no witness” who saw the compact discs with the calls handed over.
Blue ruled the missing calls didn’t rise to the level of overturning the conviction. Komisarjevsky’s attorneys appealed that ruling.
Source: Hartford Courant, Staff, September 18, 2019
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