The judge in the case, Jon Blue, ruled that the pins were not so indiscrete as to trip the prejudices of jurors.
The pin challenge by the defense followed by some months the publication of an interview Mr. Komisarjevsky gave to a reporter while incarcerated that was, the First Amendment still being the law of the land, widely covered by several state newspapers. The Komisarjevsky prison interview was fashioned into a hastily written book that found its way into libraries across the state. An effort was made, unsuccessfully, to pry the book from the hands of aggressive librarians conversant with the First Amendment.
Mr. Komisarjevsky, a very talkative fellow, also made a statement to police shortly after he was apprehended that was, most lawyers would agree, high incriminating, though Mr. Komisarjevsky was prudent enough to suggest in his statement that his companion in crime, Steven Hayes, earlier convicted of capital murder, had spread gasoline throughout the house and lit the fire intended to destroy evidence of their crime. This “evidence” included three victims, the wife of Dr. Petit and his two daughters, 11 years old Michaela and 17 year old Hayley.
So then, were the pins more or less prejudicial than Mr. Komisarjevsky several statements?
Most non-defense lawyers might agree that Mr. Komisarjevsky’s frequent admissions of participation in the Cheshire murders would more powerfully sway a jury in the direction of a guilty verdict than the discrete pins worn by family members that so alarmed defense attorney Jeremiah Donovan.
Catching sight of the pins, Mr. Donovan referred to those wearing them as the “Petit posse” and sought to prevent the members of the hanging mob from displaying the prejudicial pins in sight of prospective jurors. The pins, worn in memory of Mr. Petit’s wife and daughters, were intended to support, according to one report, “the education of young people, especially women in the sciences, and those affected by chronic illness and violence.”
Possibly it was at this point, in the early jousting among prosecutors and defense attorneys that usually occurs before any trial’s main event, that some trial watchers may have concluded Mr. Donovan was, in his assault on discreet pins, tilling the ground for future appeals. In death penalty conviction cases, appeals are necessary to run out the clock. And the more appeals the better, because protracted capital offense cases run up a tab. And the more tabs the better, because one of the generic arguments urged by death penalty opponents is that capital punishment is prohibitively expensive.
Since the death penalty itself is both an offense against God and nature, one should use every means at one’s disposal to overthrow it. Extremism in defense of virtue, the virulently conservative Barry Goldwater once said, is no vice. And if one must use a justly convicted murderer as a mere prop to overthrow a moral evil such as capital punishment, well then …
This argument is akin to that used by brother-in-law Roper in the Robert Bolt play, “A man for all seasons. Mr. Roper was asked by Thomas More how far he would go to cage the devil, to which he responded that he would cut down ever law in England to do it, receiving from the soon to be martyred More the following rebuke:
“And when the last law was down, and the Devil turned round on you-where would you hide, Roper, the laws all being flat? (He leaves him) This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down, and you're just the man to do it, d'you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake.”
Roper responds that the law itself has become More’s “golden calf,” a mere fetish that must be overthrown in the defense of a greater moral good.
The real question involved in all death penalty cases – What winds would blow if the law were to be cut down? – is not one that should be decided by clever Ropers committed to subverting death penalty laws. Jurists should aim at justice, which is the giving to all what is due them under the law. If the law must be changed, it should not be changed by legal chicanery – but by sober, morally driven legislators, like More.