Dog Bites Man

I was teaching a breakout session on doing appeals in death penalty cases when Marty G came into the room, apologized for the interruption, but said he'd just heard the news that the jury came back with the decision that Joshua Komisarjevsky should be killed in revenge for the murders of Jennifer Hawke-Petit and her daughters, Michaela and Hayley.  He, thought, he said, that I'd want to know.

I thanked him for the news report, but the truth is that I already knew.

I knew during each of the five days the jury was deliberating.  I knew during every day of the mitigation phase of the trial.  I knew during the culpability phase, just as I knew that Komisarjevsky would be found guilty of the murders and the other offenses charged as a consequence of the pillaging at Dr. Petit's home.

I knew even before the trial.  I knew during the interregnum between the time his co-defendant Steven Hayes was ordered killed and the time Komisarjevsky's own trial began.  I knew while Hayes was on trial, just as I knew what the jury would say about Hayes.

I knew all that.  But I also knew it might not happen.

As I often tell people when I teach at death penalty seminars (and sometimes just when I'm having a cup of coffee or an adult beverage with them), if a win is when the state doesn't get to murder your client (and if you don't get that, then you probably aren't cut out for capital defense work), then the simple fact is that there's no case that can't be won.

Not every case will be won, of course (though that's a different point (and another part of what you need to be able to deal with if you're going to do capital defense work), but there's no case that can't be.  Still, some will be tougher than others.  Some less likely.

Joshua Komisarjevsky was going to be sentenced to be killed.  The crimes, the outcry, the media circus. And of course the Avenging Angel Dr. Petit.  Komisarjevsky would be sentenced to be killed.  I knew that, though it's possible my knowledge could have been faulty.

I also know that there's at least an even chance he won't actually be murdered by and in the name of the people of the State of Connecticut.  Same for Steven Hayes.  The sentence of death, a nominative thing (in linguistic-literary-philosophical-critical terms a "speech act") may or may not prove itself coterminus with the reality of an execution.  Connecticut has killed only one person, Michael Ross, in this modern era of the death penalty.  Ross was a volunteer (a term it appears that Antonin Scalia didn't know until oral argument in Martel v. Clair on Tuesday.  And still it took years to kill him.  So I don't count on Connecticut getting to murder Komisarjevsky.  In fact, I think it's unlikely.

But absent a true miracle (hey, it's the Christmas season, folks; just walk into a store and listen to the piped in carols), Komisarjevsky will die.  That's a sentence we all have.  The difference is that he will die in prison.  Most of us won't.

Scott Greenfield, approaching the same point from a different direction, puts it this way of Komisarjevsy, of Hayes, of all those who are sentenced to die, whether the sentence be death in prison or murder by prison guards.

Either way, if they are guilty, they get the death penalty, and people of all religions can come together and pray.  No matter which faith captures you heart, there is no choice but death.  And it's not entirely clear that one is worse than the other.

Which is true, though to those of us who plow the bloody soil of state murder the difference matters greatly.

I've never met Joshua Komisarjevsky (or Steven Hayes or any of the Petit family, for that matter).  I've had nothing to do with the cases.  I don't practice law in Connecticut, have only been in the State once in the past 25 or more years.

But it didn't take on-the-scene familiarity to know what the jury would say.  And it doesn't take much to see what the future might hold.

Death is different.

You can ask Joshua Komisarjevsky.  

Or his lawyers.  Who could not stop the words, though they may prevent the deed.

Or Dr. Petit, who may yet be cheated of a portion of his vengeance.