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Closing Arguments

In the penalty phase of CT vs Komisarjevsky the defense has the burden to prove that one of two statutory mitigating factors exist. Have they met the burden?


First, the jury will evaluate two statutory mitigating factors — whether Komisarjevsky’s “mental capacity was significantly impaired” or his “ability to conform his behavior to the requirements of law was significantly impaired,” as well as decide whether Komisarjevsky’s role in the killings was minor.


With thanks to Hartford Courant reporter Alaine Griffin


We must remember he has already been found guilty of all the elements of 17 counts…  6 of those counts are capital offenses. Also, I’ve given myself a good talking-to about the difference between excuses and explanations. As a rule, I think of the world as results or excuses so this has been a challenge.


The death penalty requires that mitigating factors be thought of as explanations – which if true and unanimously agreed to by the jury in Connecticut they must return a penalty of life (without parole).


Is/was his mental capacity significantly impaired?


The defense put on a lot of information about the possibility of mood disorders which may have been genetic or caused and aggravated by Josh’s upbringing.  However, there is little behavior in the guy’s past – other than what Josh has himself described – that would, or should, lead us to think he is any more troubled than most of us.


The defense put a lot of effort into describing alleged sexual abuse in the home committed by a foster kid. Again, there is very little to confirm this story but assuming it is true — with the amount of counseling available to this multiple-arrest criminal how would it explain this crime?   Does it make it ok to prey on a family? Does that abuse as a kid explain how an adult sees an 11 year old girl and wants  to possess her? Does it explain anything?


If Josh was so messed up, how is it he made parole? More than once? He certainly knows how to behave when he is motivated to behave.  He certainly went through various intake processes and had opportunities to address these issues as he moved in and out of correctional institutions.


Does he have personality disorders? Definitely. Probably several. He certainly lies with impunity and has little empathy or conscience. Listen to his cold confession within hours of the crime.  In a trait common to predators Josh paints 11 year old Michaela as his willing partner, as someone he knows.  Then he goes on to describe pouring the gasoline…  He is definitely asocial and likely has a few other disorders to go along with it.  That puts him in great company with death row favorites like Charles Manson (commuted to life), Scott Peterson, David Allan Westerfield, Richard Allen Davis. In addition to asocial, I think he is a sexual predator and if this were his first sexually driven homicide and if he were not caught I’m sure it wouldn’t be the last.  This seems to be a view shared by the prosecution, more on that in another post.


Ability to conform behavior to requirements of the law?


This is where the defense was truly stuck.  The defense has to try the case they have and unfortunately every witness they put on to say Josh is a model prisoner, causes no problems in jail and has demonstrated exemplary behavior in the various halfway houses over the years blew giant holes in this factor. He can follow rules he just chooses to break-in to homes and commit crimes when he thinks he won’t be caught. This event occurred within mere days of having the monitoring device removed.  As soon as close supervision ended Josh was breaking into homes with the residents asleep inside.


 Was his role minor?


This is a delusional belief put forth by the defense attorneys. In closing arguments they try to portray Josh as a fellow along for the ride, who set out to break-in and steal and then was caught up be events  out of his control.


Absurd!  Josh clearly had a mission to have the cute 11 year old Michaela.  Josh went in. Josh beat Dr. Petit unconscious. Josh raped Michaela while Hayes was out of the house. Josh had many, many opportunities to stop, to leave, to change the course of events. Even in Josh’s self-serving confession he makes clear he was much more than a tag-a-long.  Josh was not a bit player.


I don’t believe the defense has established these statutory mitigating factors. When the instructions go to the jurors on Monday it will be made clear how the jury is to weigh the proof of aggravating factors.


Follow @alaineGriffin, @GeorgeColli, and #komis for updates on Jury instructions and deliberations







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Closing arguments today in CT vs Komisarjevsky penalty phase,  follow #komis, @alainegriffin, @GeorgeCalli for all the action in courtroom 6A.