CNN Justice notes that Joshua Komisarjevsky wants to make a deal. Komisarjevsky is the co-defendant with Stephen Hayes, convicted of the Cheshire Connecticut Petit rapes and murders.

July 2007, Komisarjevsky and Steven Hayes invaded a home in Cheshire; beat and tied up Dr. William Petit; raped and strangled his wife, Jennifer Hawke-Petit; molested one of their daughters; and set the family’s house on fire before attempting to flee.

The two daughters — 17-year-old Hayley Petit and 11-year-old Michaela Petit, both of whom had been tied to their beds — died of smoke inhalation. Petit escaped to a neighbor’s home.

Hayes has been sentenced to death.  While Komisarjevsky situation is somewhat different than Hayes’, it’s not enough so to feel comfortable that he won’t face the same fate.  There’s little chance of his not being convicted, and too much chance that the jury will vote to end his life. 

So Joshua Komisarjevsky’s lawyer, unnamed in the CNN story but who I assume to be Jeremiah Donovan, wants to cut a deal to take death off the table.  To this end, a motion was filed that explains why Komisarjevsky is less culpable than Hayes and why Judge Jon Blue should accept the offer to plea. 

The motion states that Komisarjevsky’s primary reason for the conditional plea is to “avoid another lengthy, expensive and emotionally charged trial that will undoubtedly cause extreme mental anguish to the Petit and to the Hawke families, to the community at-large and to his own family, friends and supporters.”

This, of course, is absurd.  The primary reason for the condition plea is to save Komisarjevsky from death.  It’s a pretty good reason to want a deal, given the likelihood of execution as the outcome.  But it makes for a weak bargaining position.

This case is both a great and terrible example of plea bargaining.  Deals are bilateral.  There has to be something for both sides to gain, and lose, in order to make a deal.  In contract, it’s called “consideration.”  In criminal law, the consideration is the fear of losing, whether by conviction and sentence if one is the defendant or by acquittal and release for the prosecution. 

The problem for Donovan is that his gun is empty.  He’s shooting blanks and he knows it.  The evidence against Komisarjevsky is beyond overwhelming, leaving essentially no hope of beating the rap.  And it’s such a horrific crime that the potential for death cannot be ignored.  Offering to plea guilty has no counterpart here of acquittal. Offering life rather than death gives the prosecution nothing.  It’s an offer without consideration.

And so, Donovan has attempted to frame his motion in such a way as to create a give-back where none otherwise exists.  The plea will save the state from a “lengthy, expensive and emotionally charged trial,” and save the Petit and Hawkes’ families “extreme mental anguish.”  Donovan is doing what lawyers have to do, sometimes make lemonade out of lemons.

There’s no harm in making the motion.  The worst that can happen is that the judge says no and he’s in the same position as he is now.  On the other hand, the argument proffered, that it’s good for the state and the families, is weak.  Those are concerns for the prosecution to offer, not the defense.  To the extent there is merit to the arguments, they should motivate the prosecution to offer a deal to Komisarjevsky, rather than the other way around.  I would expect Donovan is well aware of this.

What seems most likely is that Donovan is making his best plea for mercy now, before his world heats up beyond control when the trial is about to start.  Maybe now heads are a little cooler.  Maybe now the need to closure, a misguided need though it may be, has been sated by the sentence imposed on Hayes.  Maybe now Judge Blue has proven his death penalty bona fides and need not do so a second time.  Maybe.

This is likely the best opportunity Komisarjevsky will get to save his life.  And he’s got little to trade for it.  It puts the ball in Judge Blue’s court, testing his mettle on the death penalty, on mercy, on blood lust.  Donovan is trying to give him the wedge to distinguish between Stephen Hayes, the person who lit the match, and Komisarjevsky, the person who, though  guilty of many wrongs, did not chose the death of the Petits.

“Steven Hayes admitted raping and strangling Mrs. Hawke Petit; Steven Hayes purchased the gasoline and doused the house with it, including specifically over Mrs. Hawke Petit’s body; and, as the state has already argued, Steven Hayes lit the fire that culminated in the unnecessary, senseless and tragic deaths of the Petit children,” the motion stated.

“Coupled with these realities is the fact while Joshua Komisarjevsky is guilty of many things, he never intended the deaths of Jennifer Hawke Petit or her two daughters, which he explained to law enforcement while giving a prompt and detailed rendition of events that has been corroborated in large measures by the state’s forensic evidence,” the document continued.

The opportunity is there for the court to find a reasoned basis to distinguish between Hayes and Komisarjevsky. There are legitimate reasons to conclude that his conduct, though horrible, is not as horrible as his co-defendant., and that Judge Blue may believe Hayes’ sentence of death appropriate, that death is not appropriate for Komisarjevsky.

If Judge Blue wants to, he can grant the motion. He has the opportunity to contemplate what becomes of Joshua Komisarjevsky.  Now is when the decision will be made whether he lives or dies.