"I disapprove of what you say, but I will defend to the death your right to say it."
-- Variously attributed to Voltaire, Evelyn Beatrice Hall, aka Stephen G. Tallentyre, and anyone who believes in the Bill of Rights.
Cheshire, CT Book Censorship
By RICHARD MEEHAN
The Cool Justice Report
Oct. 21, 2009
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
"Congress shall make no law . . . abridging the freedom of speech, or of the press ... "
The First Amendment has fostered debate since its inception among legal scholars, academics, journalists and now a legion of bloggers.
The publication of a book based on the interviews with one of the suspects in the Cheshire murder case, Joshua Komisarjevsky, has further incensed that community. Cheshire residents have submitted a petition to the local library seeking to ban the book.
The objections are numerous.
Many are concerned that the book denigrates the memory of the Petit family and heightens the tragedy for for the survivor, Dr. William Petit. Others decry the perceived violation of a court-imposed gag order. Still others castigate the author as an unfeeling opportunist, insensitive to the impact this book may have on the community and the impending trials.
The myriad of comments following the various news stories and reviews on booksellers' sites show just a hint of the firestorm. Opinions range from thoughtful comments about the danger of banning books, to visceral, "hang 'em high" comments.
The latter appear to be the most prevalent, citing frustration with the years taken to bring sensational cases to trial. Some bloggers, convinced of guilt, want a swift public execution. Forget the trial and due process. To these writers the obviously guilty should not be afforded the fair trial rights guaranteed by the Sixth Amendment. They cry that no one provided due process to the victims, why should it apply to the accused killers? In such a sensational case it is difficult to argue with these emotions.
The Cheshire Library Advisory Board has set a special meeting Thursday at Town Hall to hear complaints.
The outrage of the community is understandable. However, outrage does not justify imposing limits on the First Amendment. The remedy for Komisarjevsky’s hubris or tactics is simple:
Don’t ban the book;
Don’t burn the book;
Just don’t buy the book!
A gag order was issued by the court prohibiting the lawyers, police and the Correction Department from making any comment on the case. Certainly that order should apply to Komisarjevsky.
The co-defendant's lawyers want him arrested for criminal contempt. That would be little more than a symbolic gesture. He is already being held on a $15 million dollar bond for capital murder.
Most importantly, the book controversy highlights the rift that exists between the two defense camps.
The gag order was an attempt to stem the flow of inside information that could pollute the jury pool. It does not apply to the author of this book, in the same way that the gag order does not prohibit the legion of bloggers from making whatever comments they wish.
Courts can only impose orders on those subject to their jurisdiction.
Judge Richard Damiani was concerned about the ability to select a jury given the glut of pre-trial publicity and defense claims that details about the case were being leaked to the press. The Hartford Courant opposed the order, citing the First Amendment. The judge said he was more concerned that the ability to provide a fair trial outweighed the public interest argued by the Courant.
Komisarjevsky's participation has now injected new legal challenges that will only serve to prolong the case.
Lawyers for Steven Hayes have now subpoenaed Correction Department records trying to determine how the author, Brian McDonald, gained access to Komisarjevsky, and whether the department or prosecutors were aware that he was submitting to these interviews.
Prisoners have no privacy rights. Incoming and outgoing mail, not marked "legal mail," is read and phone conversations are monitored and recorded. The new legal debate will focus on how this author could have gathered this information without it being detected. Lawyers will debate whether the state, by extension, bears some responsibility for this.
In a case that has put the system on trial as well as the defendants, this added debate has only fueled the criticism.
Bridgeport,CT attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organization's Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on TruTv. His column also appears in the Sunday Norwich, CT Bulletin. Website, www.meehanlaw.com