And a Little Child Shall Lead Them - Unless the Judge Won't Let Her

A Connecticut judge will hold a hearing later this month to determine whether a 9-year-old girl can testify about her father -- who has called a "monster" in newspaper headlines -- in an effort to save him from being sentenced to death. 

So reports Anne-Marie Dorning for ABC News.   Which raises the basic question:

What the fuck?

It's maybe relevant that the father here is Joshua Komisarjevsky who, along with Steven Hayes, raped and pillaged and burned and killed in the home invasion of the Petit family.  No, really it isn't relevant who the father is except that by all accounts he loved his daughter.  

OK, the kid is 9.  In Ohio, that would mean that the judge ought to determine whether she's competent to testify.  That's because of Ohio Evidence Rule 601 which says 

Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.

The Ohio Supreme Court said that to decide whether a child is competent to be a witness, the judge must hold a hearing and then consider

(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. 

I'm not a Connecticut lawyer and don't know whether Connecticut has a similar rule.  But whether it does or not, the girl's competence apparently isn't the issue the judge will be taking up. Instead, the judge will be trying to decide, or so it appears from Dorning's report, whether letting her testify will be in the child's best interest.

An attorney hired to represent the girl, Raymond M Hassett, would not say whether or not he is in favor of the girl testifying, although he has submitted a motion to quash the subpoena. But Hassett told reporters outside the courtroom today that they "shouldn't read too much into that" because he would "leave it up to the court to weigh all the factors."
Those factors would no doubt include the psychological impact on the girl of testifying and the type of questions she would have to answer. Blue is expected to hear testimony from a mental health professional during the closed door session on Nov. 14.
. . .
A number of studies have been done on the effects of testifying in a trial on children. "Criminal court testimony is associated with fear and anxiety for a substantial subset of children," according to a study done in the 1990's at University of California, Davis. "The adversarial, formal, and possibly even hostile court environment during a hearing and especially a trial is a source of a child witnesses' fear and distress."

The law is, at least formally, solicitous of what it grandly refers to as "the best interests of the child."  (That's the law, not necessarily judges, as anyone who's seen the horrible video of a judge beating his 16-year-old daughter, like Mark Bennett I couldn't watch the whole thing, can attest.)  And I suppose it might be hard on a 9-year old girl to get on the witness stand, look at a dozen jurors and a courtroom filled with haters and reporters and Dr. Avenging-Angel Petit and they all think her dad is, well, monster is probably too positive a term, and say to them 

Please don't kill my daddy.

Sure that might be tough on the kid. Dorning reports that

[a]lthough it is becoming more common for children to testify in court, it is almost unheard of for a child to testify in a death penalty sentencing hearing. 

Almost, perhaps.  But not unheard of.  We did it in a case about 10 years ago, though only after serious debate and with great care.  It's the sort of thing that can easily backfire.  If the jury thinks it's a cheap trick at the expense of the kid, that's just one more reason to think the father deserves to die.  On the other hand, it can be, and was in the case where we did it, incredibly moving testimony.

But all of that is, ultimately, beside the point.

Here's the point.  Komisarjevsky has a right, an absolute right, to provide the jury with any evidence relevant to whether the death penalty is appropriate in his case.  As the Supreme Court explained in Lockett v. Ohio, at a capital sentencing proceeding, the defendant must be allowed to present and the jury allowed to consider

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.

And of course the Sixth Amendment assures him the right

to have compulsory process for obtaining witnesses in his favor

Really, there's no question that the law allows him to call the child as a witness.

But what about what's good for the child?  Doesn't that matter?  What about this story reported by Dorning?

In 2001, in Los Angeles, four children were called by a prosecutor to testify against their father, Marco Barrera, who had been convicted of killing several of his other children. The situation caused outrage among child advocates.

Yeah?  What about it?

First, the prosecutor doesn't have a constitutional right to put on whatever evidence it might like that the guy should be killed.  Second, and really this shouldn't be hard to grasp, there's a difference between asking a child to urge the jury to save her father's life and asking it to kill her father.  Damn right that those advocates were outraged.

But even if they'd be outraged by Komisarjevsky calling his daughter, it shouldn't matter.  The law really is clear that he has a right to do it.

I said before that I'm not a Connecticut lawyer.  I also have no inside information about the defense strategy.  And I haven't read any of the filings in the case.  I don't know, except what I can glean from the press reports, why the judge has called for a hearing, what's on his mind, or what issues have been raised regarding the child's possible testimony.  What I know is that the law on the subject is remarkably clear.

Komisarjevsky's aunt testified that his execution "would not be good for his daughter."  

And so I have to tell you about Brian and Barbara Siler and their son Nathan and the Honorable Jeffrey Runyan.

In 2001, Brian Siler brutally murdered his estranged wife Barbara.  During the investigation of the crime, police took statements from the couple's three-year-old son Nathan.  

an officer testified to those statements at trial, and they pretty much assured Brian's conviction of aggravated murder with death specifications.  The jury said Siler should die, but Judge Jeffrey Runyan thought otherwise. 

In sentencing Siler to death in prison (LWOP), the judge explained in thorough and moving detail, why the aggravating circumstance did not outweigh the mitigating factors and how it is that a death sentence would disserve the memory of Barbara Siler.

Then he said this.

The final and determinative mitigating factor is Nathan Siler. Nathan is the one party here who bears no responsibility whatsoever for his mother's death.
The court must inquire objectively what sentence is in the innocent Nathan's best interests?
At some point in his future, Nathan will undoubtedly begin to blame himself for his mother's death. Is there something I could have done, he will say. That's human nature. But there is nothing young Nathan could possibly have done to save his mother.
Now young Nathan's words through the testimony of an officer have convicted his father. But today this court stands between young Nathan and the thought that he has caused his father's death as well. That would be a result of this case that is unthinkable.