Thursday, January 21, 2010

'The Other Dude Did It' Defense & Jury Selection In Notorious Cheshire Home Invasion Case

Petit Family

Many believe this trial could be the death knell for individual voir dire ... A careful capital questioning takes about one hour for each potential juror ... `Death-qualified juries' tend to be weighted heavily in favor of the death penalty ...

  • Rich Meehan, Mickey Sherman Discuss Case On Good Morning America [see video]

  • Hartford Courant Columnist Helen Ubinas On Twitter


    The Cool Justice Report
    Jan. 21, 2010

    EDITOR'S NOTE: One juror was selected Wednesday. This column is available for reprint courtesy of The Cool Justice Report,

    The long and winding road for Connecticut's jury selection process will certainly test the judge, lawyers and all the participants in Connecticut's notorious Cheshire home invasion case.

    Jury selection began this week in the trial of Steven Hayes, one of two men charged in the brutal deaths of Jennifer Hawke-Petit and their two daughters -- Hayley and Michaela -- in 2007. The process, known as voir dire, is slated to take four- to- six months. A jury of 12 regular members and four alternates will eventually be seated to hear the evidence on Sept. 13, according to the current schedule. Two additional potential alternates will be selected in the event that any of the others are unable to attend the commencement of evidence. Those extra alternates will be discharged as evidence is presented.

    The trial of Hayes has been severed from that of his co-defendant, Joshua Komisarjevsky. The defendants have mutually exclusive defenses that cannot be presented to a single jury in a joint trial -- the "Other Dude Did It" defense. Komisarjevsky is expected to claim he was merely present and participated in the assault of Dr. Petit -- but not the rapes and murders.

    Efforts were considered to impanel two separate juries that would sit in tandem and hear most of the evidence together. In that instance the juries would be excluded from testimony pertaining to one of the two accused, but not the other. Deliberations would be separate, as would the verdicts. This process has been followed in other states. There is an economy of effort, avoiding the duplicate presentation of evidence.

    The stress on the family of the victims would obviously be less with a singe trial.

    Unfortunately, this state does not possess a courtroom that could accommodate 36 jurors. The alternative is separate trials.

    The process becomes more onerous because of the prospective length of each trial.

    The process is tedious, but crucial. One wonders: Does it make a difference whether we use individual voir dire or pick 12 names out of a hat?

    In capital cases, jury selection proceeds slowly. Each juror is questioned by the lawyers in the absence of the other panel members. Connecticut is unique in that we are the only state that permits this individual voir dire. Efforts have been expended for decades to eliminate and streamline this process. Many believe this trial could be the death knell for individual voir dire.

    By contrast, in the federal court, a large panel is assembled in the courtroom and in most instances the trial judge puts a series of questions to the entire group. The lawyers present proposed questions to the judge and are granted the opportunity to individually question jurors whose responses are concerning. That examination is either handled at a side bar conference or a separate anteroom adjacent to the courtroom.

    In controversial federal cases lawyers will prepare jury questionnaires that are propounded to the prospective panel well in advance of jury selection. The lawyers then have the opportunity to advance arguments to excuse some of those jurors in advance of the actual voir dire. In the trial of former Bridgeport Mayor Joe Ganim we used such a questionnaire to whittle a panel of over 150 to a manageable number that were brought to the courtroom. Jury selection was completed in one day.

    In Connecticut's state courts, each day begins the same -- with a smaller panel of perhaps 20 to 30 jurors. Court begins at 10 a.m. with the introduction of the lawyers and naming of witnesses. The judge gives preliminary instructions informing jurors of the nature of the charges. The judge then entertains issues such as hardships and travel plans that would prohibit someone from serving. Individual questioning does not begin until about 11. A careful capital questioning takes about one hour for each potential juror.

    In this case there are two major issues that will consume the lawyers and add to the length of voir dire:

    * There has been massive pre-trial publicity. That requires careful examination to determine whether the juror can still be impartial and open minded. In such a case it would be unusual to find someone who had no prior knowledge of the case.

    * Finding "death qualified" jurors. A death qualified juror is one who is not so opposed to the death penalty on moral or religious grounds, that they would not be able to return a verdict of death in an appropriate case. One who is a proponent of capital punishment may serve as long as they convince the judge that they are capable of also considering life imprisonment as an alternative to death.

    The net effect is that most death qualified juries tend to be weighted heavily in favor of the death penalty.

    Lawyers will attempt to plant seeds of defense or doubt as well as attempting to condition jurors to keep an open mind on penalty if guilt is found. The judge will not allow the lawyers to ask hypothetical questions that mirror the anticipated evidence in an effort to reveal how a juror would react to that hypothetical. Questions are limited to those that expose bias or lack of impartiality. The trial judge in a capital case will give the lawyers wide latitude because of the extreme penalties involved.

    Bridgeport,CT attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan has been 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,

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