I was in New Haven Superior Court yesterday representing folks in the ordinary sorts of chaos that are typical of a criminal defense lawyer's day: A woman cut her lover with a knife as they fought. The state claims assault; we claim self-defense. A mother and father locked a teenage daughter out of their house after beating her with a belt: If she wanted to behave like a street walker, then let her walk the streets and learn the many sorrows of a pimp's girl, they reasoned in a frightened rage. The state claims assault and risk of injury to this child; we acknowledge a line was crossed but see no point in sending these parents to prison as felons. Did I mention that my clients were all African-American?
Lines were drawn yesterday. A woman can defend herself against a man enraged, even by cutting him and sending him to the hospital, or so we say. A judge and prosecutor determined to send caring parents who went too far to prison will have to earn the right to further damage this family. We'll demand that a different judge and jury hear all the facts before deciding what justice requires.
Lines were drawn in these cases in a rundown courthouse on Elm Street across from the town green.
Around the corner, a different sort of line was forming at a different courthouse. This one was composed of reporters and gawkers all of whom were a gathering for the start of the trial of Steven Hayes, a man accused with his co-defendant of the rape and murder of a mother and her young daughters in an upper middle class bedroom community just north of town. They were the family of a popular physician who was beaten senseless in an early morning home invasion. This case has become the stuff of legend; it is national news.
The opening day of the trial of Steven Hayes reflected few surprises. Crowds gathered, reporters gawked and even Twittered, sending electronic messages to the world at large as witnesses testified, the largest courtroom in the city was spruced up for the proceeding. A separate courtroom was set aside as a gathering point for supporters of the victims' family. It appeared as if there were even additional street vendors in the area, hoping to feed the masses worshipping in this macabre house of grief. Do I dare mention that the victims in this case are upper middle-class white folk?
The Hayes case has been the quiet talk of judges and lawyers since the murders took place in the summer of 2007. I have yet to speak to a lawyer or judge who does not acknowledge, privately, that race and class matters in this case. Just the other day, one jurist shook their head in something like sorrow as we talked about the blood red carpet being rolled out for the Hayes case. Had the victims been Black and poor, residing in a housing project rather than a bedroom community, there would not be television trucks outside the courtroom and sketch artists watching the trial. There would have been no special coat of paint to patch over rough spots in the courtroom. There would be no death penalty sought.
Judges know this to be true, but are afraid to admit it. Lawyers know it to be true, but see little premium saying it: Why there are paying clients in Cheshire, the hometown of the victims. Why offend Mr. Green's keepers?
We want to say that justice is blind, color blind, we hope. But we all know better. The Hayes case proves it. Even the state's forensic laboratory is in lock down: I am trying a murder case in Hartford next week. My client is white; the victim Hispanic. These are people of modest means. We have been informed that the state's DNA analyst might not be available. The staff is on call for the Hayes trial. This abysmal business of seeking to kill Mr. Hayes has created a caste system in the state's criminal justice system. It is a bizarre but unspoken truth behind closed doors: The New Haven cases gets special treatment: Those of our privileged class and station were felled.
The trial began without fanfare. Three jurors decided for one reason or another that they could not participate in the case. One, an African-American, was interviewed on television. She thought, on reflection, the case would be too disturbing, too violent. Perhaps that is the truth. But she had been questioned at length about this in jury selection. Perhaps this woman of color just felt uncomfortable around a white lynch mob bent on killing.
Defense counsel conceded in his opening statement that Mr. Hayes had killed the children's mother. This simple burglary wasn't supposed to turn violent. But it did. The defense did not waste time on distracting cross-examinations as the trial opened. The state examined five witnesses in rapid succession, setting the scene for testimony the prosecution promises will be deeply disturbing.
I know all of the lawyers involved in this case; two of them, State's Attorney Michael Dearington and defense counsel Thomas Ullmann, are family friends. But this trial strains relationships. I regard Tommy as a hero: a lawyer's lawyer standing proud and unbent in the face of rage and passion to defend a friendless man. Tommy is a public defender, but, should I ever need counsel, I would beg him to take my case. He approaches this case with a sense of grim necessity. It is a hard, impossible case: The fight is to keep the state from killing his client. It is a fight to the death. Daniel has been thrown into the lion's den.
Mike plays the role of reluctant white knight. He almost apologized to the jury about the horror they would experience in the trial. But the tone seemed all wrong. There is no necessity for this trial. Mr. Hayes has offered to plead guilty. Life without possibility of parole is not enough for the prosecution. It wants another corpse, another horror. I look at Mike and I sense something like the abandonment of reason. Why do you, too, insist on becoming a killer, Mike? What will you do with the eye you pluck from Mr. Hayes' cold skull in retribution for the eyes he has taken? Will you pickle it, place it in a jar on some hideous shelf in the chaos of your office? There is no need for this blood sport. This death work is a choice Mike has made; that he now asks others to become as Mr. Hayes, self-conscious and deliberate killers, is a mockery of the reasoned and measured pose that justice requires.
This trial is a two act play. The first part, the guilt phase, will move quickly. The state will bathe the courtroom in blood and horror, and then stand by in mock solicitude as the jurors weep. Mock solicitude, I say, because it is the state that insists that this upper middle-class show trial take place. Mr. Hayes would long ago have begun serving his life without possibility of parole term if the state had let him. Under Connecticut law, Mr. Hayes is required to fight for his life. The real fight will take place at the penalty phase, where jurors are asked not to compound the evil done to the victims with the evil of making killers of us all.
The lines will form again at the courthouse today. And today lawyers and judges will talk privately about the double standards at work in the state. When people of color stumble and fall, the system grinds out a dismal sort of tune. But kill white folks in paradise? In that case, we invite an orchestra to the courthouse.
Why this show trial, Mike? Why press ordinary jurors to the point of becoming killers? This is not justice. This is a costly pyschodrama that demeans us all.
