One of the killers convicted of raping and murdering a mother and her two daughters in Cheshire is serving a life sentence and is arguing for a new trial on Tuesday.
Judge Jon Blue ruled over the hearing for Joshua Komisarjevsky, whose lawyers said several calls were withheld from the defense before the original trial began.
Blue needed to rule on whether the calls were provided to Komisarjevsky's defense team prior to the trial.
"But the recordings just aren't in the files," Blue said at the hearing in New Haven Superior Court.
Both sides seemed to agree that there was human error.
"I don't doubt the honor and integrity of the state, no signs of deliberate attempt to conceal," Blue said.
So while this ruling is a win for a new trial, it's up to the Supreme Court to decide if the convicted killer gets another shot at a defense.
Komisarjevsky and accomplice Stephen Hayes were convicted for the 2007 murders of Jennifer Hawke-Petit and daughters Hayley and Michaela.
The evidence Komisarjevsky's lawyers said was held from them includes several CDs that were discovered in a town hall vault in 2014.
On them are phone calls between officers from the morning the murders happened. lawyers argue that they were never turned over to the defense.
Radio calls on the CDs were between Cheshire police, the swat team and a hostage negotiator.Those calls also included police telling a swat team member and a hostage negotiator not to come.
The defense said those recordings would have played a huge role in their case because they wanted to paint a picture of an inadequate police response. They argued that if police did storm in and the deadly outcome may have been prevented.
When Cheshire officials were asked about the recordings the year before, they said they had been destroyed in a 2010 lightning strike.
The state suggested that Komisarjevsky's team may have lost the recordings, and emphasized that they were made public during the Steven Hayes trial
On Tuesday, the state called Michael Winters, who is the Cheshire Police IT coordinator. Winters reiterated a lightning strike in 2010 destroyed original copies of police communication recordings from Cheshire home invasion
Winters went on to say he did not know copies of the recordings were preserved off-site.
Robert Sage, inspector at State's Attorney's office. also looked over the the discs of police department recordings. Sage said he does not recall ever handing it over to defense and added a prosecutor may have handled that.
Blue narrowly decided that Komisarjevsky's team did not directly get the calls before the trial.
On Tuesday, Komisarjevsky wore an orange jumpsuit, had a buzzcut and looked like he gained some weight. He looked very interested in the proceedings and even took notes at times.
Both the state and the defense refused to comment outside of court on Tuesday.
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