Petit Judge to Decide If Girl Can Testify for Dad in Death Penalty Trial

Nov. 3, 2011 — -- 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.

Judge Jon C. Blue set the hearing date for Nov. 14, indicating that the death penalty phase of Joshua Komisarjevsky's triple murder trial still has many witnesses to hear from. The jury of seven women and five men has already been hearing witnesses for eight days.

Komisarjevsky, 32, was convicted last month of of the murders of Hawke-Petit, 48, and Hayley Petit, 17, and the sexual assault and murder of Michaela Petit, 11.

Their bodies were found in the charred remains of the house. The girls were alive and tied to their beds when the fire began, and the triple murder has been called the most horrific crime in Connecticut's history.

His accomplice, Steven Hayes, has already been sentenced to death and is on Connecticut's death row.

Defense attorneys have filed a subpoena to have Komisarjevsky's daughter testify, but prosecutors have fought the motion.

It is not known what the child might say on her father's behalf, but because of the brutal nature of the crimes and the enormous media attention surrounding the case, the defense team faces a tough fight trying to convince the jury to spare Komisarjevsky's life. Testimony from a 9-year-old girl could be crucial to humanizing Komisarjevsky who has been described as a "monster" in the press.

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.

In April, another lawyer hired to represent the girl, Justine Rakich-Kelly, the executive director of the Children's Law Center filed a motion with the judge to protect the girl's privacy by referring to her by a pseudonym.

Shortly after her father was arrested in 2007 for the murders, Komisarjevsky's daughter, who was 5 at the time, received a threatening letter. Attorneys and witnesses have so far not referred to her by name in court and ABC News is withholding her name.

During the penalty phase of the trial, defense attorneys have presented witnesses including Komisarjevsky's sister, Naomi Komisarjevsky and his aunt, Carlie Lebatique, who have testified that he was a loving father. Komisarjevsky's aunt told the jury this week that if her nephew was put to death "It would not be good for his daughter."

The women also told the jury they did not think Komisarjevsky was responsible for murdering the women, but was following the lead of his accomplice Steven Hayes.

Komisarjevsky had won sole custody of the girl just one month before the July 23, 2007 murders. Jurors have seen photographs taken inside the Komisarjevsky home during a police search that showed the little girl's drawings stuck to the refrigerator. Transcripts of text messages Komisarjevsky sent to Hayes just hours before the two men invaded the Petit home said "Dude, I'm putting the kid to bed hold your horses."

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."

Although 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.

Daughter Becomes Focus of Dad's Death Penalty Trial

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.

In her young life, Komisarjevsky's daughter has already had a lot to emotional turmoil to deal with.

The girl was born in 2002 while Komisarjevsky sat in jail serving time for a string of burglaries. Komisarjevsky and the girl's mother shared custody until he filed for sole custody in 2007 claiming his ex-girlfriend was abusing drugs.

After her father was arrested for the Petit murders, his daughter moved in to the home of his parents Jude and Benedict Komisarjevsky. She is now living with relatives on her mother's side of the family.

If Blue allows the child to testify, he could stipulate she do so via video conferencing or in a closed courtroom to ease the psychological trauma of the circumstances,

During the penalty phase of the trial, witnessnes have described Komisarjevsky as a child who was adopted, was raped as a boy, saw demons and suffered a head injury in a car crash. His younger sister also testified that she was molested by Komisarjevsky when she was a girl.