Komisarjevsky_defs_req for Remedial Instr

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STATE OF CONNECTICUT

DOCKET NO.: CR07-0241860 SUPERIOR COURT, PART A

STATE OF CONNECTICUT JUDICIAL DISTRICT OF NEW HAYEN

v. AT NEW HAVEN

JOSHUA KOMISARJEVSKY : December 2, 2011

DEFENDANT JOSHUA KOMISARJEVSKY'SREQUEST FOR REMEDIAL INSTRUCTIONS:

The defendant respectfully requests that the Court, in its instructions, deliver the following

remedial charge, in response to certain prosecution arguments described in the charges

themselves:

FIRST REQUESTED REMEDIAL CHARGERE: "ALL THE FACTS AND CIRCUMSTANCES

OF TIlE CASE"

JEREMlAHDONOVAN WALTERc.BANSLEym TODD A. BUSSERT

During the course of his argument, Mr. Nicholson suggested that you may reject the

defense's suggested factors, even if you find them to be proven, if, looking at all the facts and

circumstances of the case, you find that the factor should not be considered. In particular, he

argued that if the crime was particularly horrendous, then you should not consider as mitigating

any of the factors that the defense has suggested.

This is not the law. You must, as I have told you, determine whether that

the defense has proven that a mitigating factor exists by a preponderance of the

evidence. If it has, you must then consider whether it should be considered a

mitigating factor in light of all the facts and circumstances of the case relating to

that particular mitigating factor.


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For example, in a hypothetical case, the defense may list as a mitigating

factor the fact that a defendant grew up in a poor neighborhood, and the defense

may prove that this is true. The evidence may also show that the defendant's

family, although living in a poor area, were affluent, sent their children to the best

schools, and did not stint on providing for their children's material needs. Ajury

may find that although the factor that the defendant grew up in a poor

neighborhood is proven, that factor is not a mitigating factor, given all the facts

and circumstances of the case that relate to that particular mitigating factor.

Mr. Nicholson has suggested that you may reject all of the mitigating

factors that the defense has suggested, even if they have been proven, because the

crime was, he alleges, committed in a particularly cruel and heinous manner. This

is not correct. When I instruct you that you are to determine whether a particular

factor is a mitigating factor by looking at all the facts and cirucmstances of the

case, I am talking about all the facts and circumstances of the case that are related

to that particular mitigating factor, not unrelated factors such as whether the crime

was committed in a cruel and heinous way.

Sources:

Skipper v. South Carolina, 476 U.S. 1,4 (1986): "There is no disputing that this Court's decision

JEREMIAll DONOVAN WALTER C. BANSLEY ill TODD A. BUSSERT


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in Eddings requires that in capital cases 'the sentencer not be precluded from considering, as a

mitigating factor, any aspect of a defendant's character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence less than death.' Eddings at 110

(quoting Lockett at 604) (emphasis in original). Equally clear is the corollary rule that the

sentencing may not refuse to consider or be precluded from considering any 'relevant mitigating

evidence'. Eddings at 114. These rules are now well established, and the State does not question

them."

Tennard v. Dretke, 542 US. 274,284 (2004): "The "meaning of relevance is no different in the

context of mitigating evidence introduced in a capital sentencing proceeding" than in any other

context, and thus the general evidentiary standard-s'T'any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence'v'v=-applies."(quotingMcKoy v. North Carolina, 494 US. 433,

440 (I 990). "When we addressed directly the relevance standard applicable to mitigating

evidence in capital cases in McKoy, we spoke in the most expansive terms." rd. "Once this low

threshold for relevance is met, the 'Eighth Amendment requires that the jury be able to consider

and give effect to' a capital defendant's mitigating evidence." Tennard at 285 (quoting Boyde v.

California, 494 U.S. 370,377-78 (1990) (citing Lockett, Eddings, Penry I, andPayne v.

Tennessee, 501 U.S. 808, 822 (1991)).

Payne v. Tennessee, 501 US. 808, 822 (1991): "virtually no limits are placed on the relevant

mitigating evidence a capital defendant may introduce concerning his own circumstances"

(quoting Eddings at 114).

JEREMIAH DONOVAN. WALTER C. BANSLEY m TODD A. BUSSERT


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SECOND REQUESTED REMEDIAL CHARGE

RE: "MERCY"

During the course of his argument, Mr. Nicholson suggested that Mr. Komisarjevsky had

shown no mercy and so the jury should tender no mercy to him.

As I have instructed you, a nonstatutory mandatory mitigating factor "is a factor which, in

fairness and mercy, may, . , constitute a basis for a sentence of less than death," The mercy to

which I am referring is each juror's own personal sense of mercy, and has nothing to do with

whether Mr. Komisarjevsky exhibited mercy,

General Statutes 53a-46a:

"Mitigating factors are such as do not constitute a defense or excuse for the capital felony of

which the defendant has been convicted, but which, infairness and mercy, may be considered as

tending either to extenuate or reduce the degree of his culpability or blame for the offense or to

otherwise constitute a basis for a sentence less than death."

JER1!MIill iDONOVAN. WALTRRC,BANSLEym. TODDA.BusSERT


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Respectfully submitted,

JOSHUA KOMISARJEVSKY, Defendant

By : ; [ZAJ~~EMIAH DQ'NOVANJNJ305346 I

I

123 Elm Street--Unit 400/

.. O. Box 554 20Old Saybrook, CT 06475-4108(860) 388-3750Fax; (860) 388-3181jerem iah_ [email protected]

IN 407581 ;:;Bansley Law Offices, LLC20 Academy StreetNew Haven, CT 06510(203) 776-1900Fax: (203) [email protected]

JEREMIAH DONOVAN WALTERC. BANSLEyID TODI)'\' BUSSERT
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATION OF SERVICE

This is to certify that the above and foregoing Request for Remedial Instructionswas hand delivered on December 2,2011, to Mich f31Deari~tprl,-State's Attorney,New Haven County, Superior Court, 235 Church t / e / e t ,Net Javen, eli 06510.

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