Even for Donovan, this is hard.
Next the lawyer tries to get in the point that one of the men who invaded his home actually put some pillows under Dr. Petit after they brought him to the basement, presumably to make him more comfortable. Bill says he doesn’t remember telling the police that they put a pillow under his feet. Donovan knows he said this, because he has Bill’s sworn statement. In this situation a lawyer usually asks the witness whether it would refresh his memory to take a look at the statement.
“Did you say that, ‘It was strange, they put a pillow under my butt and my feet and that they covered me with a blanket?’ Did you say that?”
“That’s what they wrote down. I don’t recall saying ‘under my feet’ at this time,” Bill says.
“Would it refresh your recollection to take a look at the written statement?”
“I trust that’s what’s written there, but I don’t—”
And here Donovan strays just for a moment from the taut script of a delicate cross-examination and conjures a little of the Jeremiah Donovan who once jumped on a bale of marijuana in court, who acted in the Hasty Pudding show at Harvard, and who made his way from England to Bangkok alone, bullshitting with strangers the whole way. He places his hand on his heart and says, with self-effacing charm, “Don’t trust me, sir.”
Before they can catch themselves—and in spite of themselves—just about everyone in the courtroom chuckles. This is a quick moment, but to Donovan’s strategy of winning over the jury and poking holes any way he can, no matter how bad they might make Bill Petit feel, it is essential. With no way to impeach this witness, Donovan does the next most effective thing. In this most horrible and joyless of trials, he actually gets them to laugh.
—
Bill finds it more difficult to maintain his composure in this trial with Donovan leading the defense, but somehow he does. Donovan routinely objects to the most innocuous of things, moves for a mistrial regularly, lets nothing slide. He will do anything to create confusion or take the jury’s attention off the core facts of the case. He sees his duty in this case as keeping Joshua Komisarjevsky off death row. That’s it. And he will do anything to fulfill that duty.
Bill doesn’t crack.
Christine is here most days. That helps. She doesn’t sit next to him, though. The victim’s advocate, a person appointed by the court to help families through the trial process, advises them that it wouldn’t look good if Bill and Christine sat together. Especially with Donovan trying the case. They don’t want to give him any bait, any information he could twist in an attempt to puncture the jury’s perception of Bill, because Donovan is the type of lawyer who just might try. So Christine sits behind Bill.
While the Petits sit impassively, day after day, Christine is not so accustomed to keeping emotion off her face. She marvels at their stolidity because, jeez, you can’t believe some of the stuff Donovan pulls. But when she occasionally reacts the way most people would—a muffled gasp, a can you believe this? face, a little nudge and a whisper to the person next to her—there’s no response from the family around her. This is somewhat amusing to Bill, and in fact it’s part of what draws him to her: She is true to her emotions. She lets them show. Not too much or in a way that would offend anybody—nothing like that. But the contrast between Christine and his family is stark. At social gatherings, or even when it’s just the two of them, she makes him laugh. With a perfectly timed roll of the eyes or a conspiratorial smile across the room at a moment when he was thinking the same thing, she makes him feel like smiling without thinking too hard about it, and that’s something he hasn’t been able to do for a very long time.
This trial, however, is not amusing. She is aghast, mostly, but she quickly adopts the Petit stone face, even if she wants to scream sometimes. Now Donovan is looking at the notes he will use to question William Shute, special agent, Federal Bureau of Investigation. The prosecution contacted Shute three days ago to request that he travel from his office in the J. Edgar Hoover Building in Washington to New Haven so he could testify as an expert witness about the locations of the cellular communications towers in and around Cheshire, Connecticut. Before the call from Dearington’s office, he had never heard of the Cheshire murders.
The state is interested in the period during the morning of the crimes when Hayes left the house on Sorghum Mill Drive to fill the cans with gas and made several cell-phone calls to Komisarjevsky, who was back at the house. The FBI agent doesn’t know the particulars of this case but has experience using cell towers to track mobile callers, and the state is using him to help establish Hayes’s rough whereabouts on the morning of the attacks.
In preparing for the trial, Donovan has read that, according to some experts, cell-tracking science is not science at all. And he believes that this agent, Shute, has been asked by the state to say that the radii of the cell towers are whatever is most convenient for their case. And so Jeremiah Donovan goes on the attack. He’s researched the hell out of cell-phone-tower range, and he’s done the calculations to show the range to be a certain number of miles.
But Shute is too loose with his numbers for Donovan’s taste. Two miles, 1.7 miles—he’s all over the place.
DONOVAN: Isn’t it true, sir—didn’t you testify that the radius of the cell-phone tower is approximately two miles—you have chosen to use 1.7 miles and 1.5 miles, isn’t that right?
SHUTE: One point seven miles, to me, is approximately close to two miles, sure.
DONOVAN: Well, let’s see how close 1.7 miles is to two miles.
Shute shifts in the witness chair, looking a little annoyed but also a little nervous about where this lawyer is going. He is perhaps guesstimating with the wrong lawyer. Jeremiah Donovan, after all, will not even end a sentence with a preposition.
DONOVAN: You know the formula for computing the area of a circle?
SHUTE: Sure, sir.
DONOVAN: What is it?
SHUTE: It’s pi r—is it pi r squared?
DONOVAN: Pi r squared?
And here Nicholson, the assistant state’s attorney, objects. His tone suggests that Donovan is wasting the court’s time. Blue allows it, but he’s keeping Donovan on a short leash.
DONOVAN: So it’s a 2.5, the radius squared would be—
BLUE: Where did you get 2.5? The witness said two miles, didn’t he?
DONOVAN: Didn’t you testify that the average is two to three miles?
SHUTE: In this geographical area, the towers are separated by about two to three miles.
So Donovan is dealing with two different numbers now, range and distance. He’s drawing pictures on the overhead projector, towers and circles, and he’s doing math longhand. His giant magnified hand moves around the screen, scribbling out long division. The jury, after days of nightmarish evidence and wrenching testimony, is rapt, and some are even showing a hint of a smile. They appear to be allowing themselves to be entertained.
DONOVAN: Would you agree that 2.5 squared equals 6.25, right?
SHUTE: Sure.
DONOVAN: Now, I’m going to embarrass you: Do you remember the value of pi?
SHUTE [so taken aback that he just goes ahead and answers]: 3.14, something something something?
BLUE: I believe this is why God invented calculators. [Smirks.]
DONOVAN: If there is a mistake from the defense team, please let me know.
BLUE: For those of us who went to high school in the pre-electronic-calculator era, this is what high school was.
DONOVAN [scribbling away, really sweating the math]: So, 2.5 miles is about 188 square miles?
BLUE: You know, Mr. Donovan, I do have an adding machine here, could you use this, it’s—if you multiply 186 by three, which is an approximation, you get 18, so that indicates your decimal point may be off.
DONOVAN: And may it please the court, I would ask the court to take judicial notice that this calculation comes out to 19.625?
BLUE: Yeah. Call it 20. Go ahead, sir.
DO
NOVAN: I wonder if we could do the same thing, I’ll ask my brother counsel to do the same thing with—
BLUE: With what number?
DONOVAN: The figure that is used on—the smaller figure that is used on this, which is 1.5 miles, 1.55. [Pause.] 7.54. So, I mean, there is a pretty considerable difference, is there, between the radius—between the square footage that is covered when the radius changes?
And everybody looks at Special Agent William Shute, including Judge Jon Blue, eyebrows raised, lips curled up at the edges, and the jury, too, who never expected this kind of theater. Shute stammers, and the examination trails off a few minutes later. Joshua Komisarjevsky watches with apparent interest, but it’s unclear whether he realizes that his attorney is doing every blessed thing he can think of—including taking half an hour to try to discredit some poor FBI agent who never heard of this case until three days ago and whose testimony about the radius of a cell-phone tower doesn’t mean a damn thing—to save his life.
—
The jury found Komisarjevsky guilty of all seventeen counts against him, including the six capital felonies that carry the death penalty. That’s why Donovan is standing before the court on day one of the penalty phase. If the Petit posse didn’t like him during the guilt phase, they are going to like him even less now. The Jeremiah Donovan Show is just beginning. And the first thing he does is—once again—say something unimaginable.
Part of what the state had to prove in the guilt phase was that the victims of these murders—Jennifer, Hayley, and Michaela Petit—died in a manner that was heinous, cruel, or depraved as defined by the law, which seems like a given in this case. Not to Donovan, though. Not that he’s going to admit in court.
“At least with respect to the death of Hayley Petit and Michaela Petit,” he says, “as Your Honor will recall, the testimony of the medical examiner was that when one dies from smoke inhalation, what happens is that in a matter of seconds one is overcome by smoke. During those seconds one suffers some confusion and pain in the throat and the lungs, and then one is fortunately unconscious while the—while the breathing of the smoke causes the death of the person. So with respect to the deaths of Hayley Petit and Michaela Petit, their actual deaths were not, in the defense’s view, committed in an especially heinous, cruel, or depraved manner.”
And again you can hear the muffled gasps. Donovan knows full well that everyone in the room is thinking about the heinous, cruel, and depraved six hours the girls were tied to their beds, and then the endless, terrifying minutes when the intruders poured gasoline all over their rooms, and the fact that those two girls knew at the very end that they were going to die that morning in their home.
Donovan gets nowhere with Judge Blue on this motion. But he knew he wouldn’t. He had to state it for the record. There will be appeals someday, probably, and so Donovan makes as many of these motions as he can think of, hurls the next one at the judge as quickly as he can rule on the last one.
Now, he’s going to tell a story.
Donovan stands in the middle of the room. He got a haircut, and his hair looks darker than usual, more black than white. He puts his glasses on as he peers down, then looks up at the jury and whips them off.
Donovan knows how to tell a story. At the elite Jesuit boys’ school he attended on an academic scholarship, he read the Odyssey in Greek. Twice. By the time he got to Harvard, college seemed easy by comparison. But Bill isn’t in the courtroom to hear Donovan tell this story, one of the few times in either trial that he excuses himself. Bill doesn’t want to hear this. Doesn’t care that Komisarjevsky was adopted when he was two weeks old, and that his biological family suffered from various mental disorders. Doesn’t want to know that Josh’s adoptive parents took in a fifteen-year-old foster child when Josh was four years old, and that that boy began sexually abusing Josh, including raping him, almost immediately, and burned his skin with cigarettes. Doesn’t want to hear that Komisarjevsky’s parents were evangelical Christians who made him recite Bible verses while he did his chores, or that by the fifth grade he was sneaking out of the house, wandering alone in the woods at night, and occasionally walking into people’s homes and stealing women’s underwear—or that his parents knew about this and didn’t do enough to stop it. Bill doesn’t want to hear about how Josh sexually molested his younger sister, and that his parents knew about this, too, and didn’t seek sufficient professional help for him, because they felt these things were best dealt with in the family and in the church. The chanting, the group humiliation that was practiced in the Komisarjevskys’ church, the rejection of medicine and psychiatry, the speaking in tongues, the yelling and the coldness that pervaded the Komisarjevsky home—none of this does Bill Petit want to hear. Because how can any of this be relevant now that his girls—Hayley, so good to everyone, and sweet Michaela, who helped him plant flowers, and Jennifer, his beautiful Jennifer, twenty-six years his Jennifer, such a good and gentle soul—now that his girls are dead, how can any of that matter?
—
Donovan tries to make it matter. One afternoon, deep into the penalty phase, when most of that biography has been established through a parade of defense witnesses, he calls Frances Hodges. The marshal in the back of the courtroom opens the door. A woman walks in, about thirty years old, with heavy black eyeliner and her dark hair teased above her head. She wears a teal blouse, black nail polish, and tiny rings in her nose and lips. She has sad eyes.
Hodges, who was Komisarjevsky’s girlfriend when they were teenagers, is a delicate witness. She’s nervous. She sits in the witness box and folds her arms, and her eyes pinball around the room—the jury, the judge, the hulking marshal standing against the wall over her left shoulder. The Petits. When her eyes land on Komisarjevsky, whom she hasn’t seen in at least a dozen years—since long before the crimes of July 23, 2007—she stops. He looks so different now. He was a skinny kid, but good-looking, and she used to gaze into his deep brown eyes. Now, after prison—four years since the murders, plus some long stretches before that, for burglaries—he looks pale and thick, doughy even, his brown hair shaved close. Like a prisoner.
He doesn’t look at her.
“Miss Hodges,” Donovan says. She sits up and snaps her eyes to him, licks her lips quickly in preparation to speak. Donovan stands between Komisarjevsky and the jury box, his arms folded like a professor’s, with a folder of pages in front of him. He uses a voice that is calm but proper, soothing but polite. “I would like to start off by letting the jury know something about your life history.”
Among the first things the jury comes to know is that Fran Hodges did not have a very happy childhood.
“We used to have church meetings,” she tells Donovan, her voice at once confident and heartbreakingly fragile, “where the leaders of the church would present what they said were science-based presentations of evidence that the prophecies of the end times, in the Book of Revelation, were coming true or had already come true, and that we were in the final stages of the end of the world.”
Fran and Joshua lived in the same religious community as teens, so in this witness Donovan has effectively found a surrogate for Joshua—someone who can speak firsthand about what his life was like, because she lived it with him.
As a girl, Fran was taught to wonder whether she would one day witness her mother burning at the stake as her father looked on. She was made to feel that her faith was “inadequate.” She assumed that she herself would have to die for her beliefs at some point—it was inevitable, her parents said. Fran became depressed and anxious even before adolescence. She cut herself deliberately, pulled out her hair. She feared anyone who was not a member of her church, mostly because she hadn’t ever really met anyone who wasn’t. As a teenager, she participated in community outreach programs for the Evangelical Bible Church. One of her missions was to try to spread God’s love so that she might help cure people of homosexuality. In the church in which she grew up, she tells Donovan, homosexuality is “an abomination,” and she wa
s taught to go out and spread that definition of love the way Girl Scouts are sent out to sell cookies. She knew nothing of the outside world. She was, she says, “born into being a misfit.” But trying to cure the gays seemed to trigger something in her mind. She began to feel conflicted about her faith. She didn’t know what to do, and she felt alone in her state of conflict, until she met Josh Komisarjevsky.
DONOVAN: Did he also have the same kind of inner conflict?
HODGES: Yes.
DONOVAN: What was his mood as you became friends?
She looks at Komisarjevsky as if to ask for help finding the word. He stares down at the table.
HODGES: He was sad.
DONOVAN: Okay. How would you describe your mood?
HODGES [still looking at Komisarjevsky]: I was sad.
Donovan is gliding through the examination. He sees that Fran Hodges is pretty and sweet and vulnerable and captivating, somehow, in the way she speaks. He is talking to her with empathy, because maybe that will help him pull off the impossible, which would be to make the jury feel empathy for Komisarjevsky. Or at least to understand him, a little.
“You have no idea what morality looks like in an applicable, culturally acceptable way,” Hodges is saying. “So I left the church and I just—there was this wake of wreckage behind me. I had absolutely no moral conscience after leaving. I felt like I was damned to hell.”
Donovan puts his glasses on, then takes them off again. He takes a step forward, then back, looking down as he speaks and then up at Hodges. The jury watches him now, their heads ping-ponging between the witness and the lawyer. Donovan asks Hodges about another boy who was the model child in that church community, the kid everybody thought was great.
“John,” she says, nodding. “He was moral, and genteel, and generous, and humble.”
Donovan looks up at her, his eyebrows arched, like a Saint Bernard hearing the doorbell. “Did he have any aspects of his life that the community might have looked upon as an abomination?”
The Rising Page 21
