State of Connecticut v. Joshua Komisarjevsky (2011)

MEMORANDUM OF DECISION RE THE HARTFORD COURANT COMPANY'S MOTION TO VACATE SEALING ORDER

The defendant in the above-entitled case is charged with a number of crimes, including capital felony;  Conn. Gen.Stat. § 53a–54b;  arising out of a 2007 triple homicide in Cheshire.   The defendant has pleaded not guilty and elected a trial by jury.   Jury selection began on March 16, 2011, and will occupy an additional two to three months of the court's calendar.   The case has attracted intense media interest.

P.B. § 42–11 provides that, after a panel of prospective jurors has been sworn, “The judicial authority ․ shall require counsel to disclose the names ․ of all witnesses counsel intends to call at trial.”   Ordinarily, the names of potential witnesses are read to the panel orally, in open court.   Because an exceptionally large number of witnesses may be called in this case, the court has decided, following consultation with counsel, to submit a written list of names to the panel in lieu of an oral reading.   The reason for this decision has nothing to do with secrecy.   The idea (which works well in practice) is that members of the panel will more easily recognize names appearing in a written list than names spoken in an oral recitation.   A lengthy written list of potential witnesses (“witness list”) has consequently been prepared by the parties.

At the beginning of jury selection, on March 16, 2011, the defendant requested that the witness list be sealed as to the media.   Given the press of immediate business, there was no opportunity to consider the merits of the request at the time it was made.   Consequently, the court ordered the witness list sealed without prejudice to an appropriate motion.

On March 22, 2011, the Hartford Courant Company and its reporter Alaine Griffin filed the motion to vacate now before the court.   The motion seeks to unseal the witness list pursuant to P.B. § 42–49A.   On March 23, 2011, the court issued the following order:  “Any party objecting to the above-entitled motion shall, no later than 10:00 A.M. on April 1, 2011, file under seal a list of specific names on that party's witness list as to which further sealing is claimed to be warranted under P.B. § 42–49A, together with appropriate affidavits.”

The State has not filed a response to the motion to vacate and has indicated on the record that it has no objection to that motion.

The defendant's response was filed on April 1, 2011.   That response does not include a list of specific names, under seal or otherwise, as to which further sealing is claimed to be warranted.   The only affidavit filed by the defendant (which has not been filed under seal) is an affidavit by his attorney setting forth a variety of concerns of unnamed persons on the witness list.   The general concern of the affidavit is that the defendant's attorney is “concerned about the pervasive hostility directed toward Mr. Komisarjevsky that exists throughout the state.”

P.B. § 42–49A, like its civil counterpart, P.B. § 11–20A, “codifies the common-law presumption of public access to judicial documents.”  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 46, 970 A.2d 656, cert. denied, 130 S.Ct. 500 (2009).   The defendant does not argue that the witness list is not a document “filed with the court” within the meaning of P.B. § 42–49A(a).   In any event, witness lists, unlike, for example, some discovery materials, are ordinarily intended to be public.   They are distributed to numerous prospective jurors, who are members of the general public, and, in ordinary practice, are read aloud in open court.   Prospective jurors are never admonished to keep the names on such lists private.   The only reason that the witness list is this case was submitted in written form was pedagogical.   When a prospective juror recognizes a name on the list, he or she is instructed to orally identify the recognized name.   All of this is done in open court.

Under these circumstances, there is a presumption that the witness list “shall be available to the public.”  P.B. § 42–49A(a).   That presumption can be overcome “only if the judicial authority concludes that [a sealing order] is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.”  P.B. § 42–49A(c).

Documents to which the public has a presumptive right of access may be sealed only if “specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”  Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 13–14 (1986).  (Internal quotation marks omitted.)   The court is unable to make the requisite findings on the record before it.   The defendant's generalized concerns are understandable, but they remain generalized concerns.   No materials have been submitted, under seal or otherwise, concerning threats or intimidation with respect to specific names on the list.

Under these circumstances, the motion to vacate the sealing order must be granted.

This order is stayed until 1:00 P.M. on April 8, 2011, to enable the defendant to attempt to obtain a further stay from a reviewing court.   If no such further stay has been ordered, the witness list is ordered unsealed as to the general public at that time.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.