State V. Hayes: A Necessary Act Of Contempt

Game, set and match to Joshua Komisarjesky's lawyer in deciding to break a court order. What could he have been thinking?

Check out the full piece at my new blog site: A Necessary Act Of Contempt.

My new blog site is located at: www.pattisblog.com.

Rage And The Hunting Of Steven Hayes

Herewith a debate of sorts on the morality of the death penalty in the Connecticut case of State v. Steven Hayes. Is killing the killer every justified. Listen to the debate: WPLR Interview on September 23

Check out the new home of this website: www.pattisblog.com

State v. Hayes: What Happens If The Judge Can't Return?

Superior Court Judge John C. Blue called in sick today, causing another delay in the case of State v. Hayes, the triple murder that has captured the morbid fascination of the court-watching civilized world. Although details are sparse about the judge's condition, it's been reported he is the hospital for observation. He was dizzy this past weekend. He is expected back on the job on Wednesday, when the trial is scheduled to resume.

But what would happen if the judge was too sick to return?, you might wonder.

Fortunately, judges don't often fall so ill that they cannot continue presiding over a trial in which they have begun to hear evidence. I've only had a judge fall ill once during a trial, and that was during jury selection in a capital felony case. In that case, the judge had not decided any pretrial motions; he had not presided over the taking of evidence; the only rulings he had been required to make regarded whether a given potential juror was too biased to serve on the panel. In that case, we merely changed judges and went on our merry way.

Things may not be so simple in the Hayes case. That is because of the law of the case doctrine, a little discussed and even less well understood legal theory.

The trial of a case calls upon a judge to rule on matters of procedure, admissibility of evidence and the substantive law governing a dispute. In the course of a trial, especially a capital trial, a judge may be called upon to make scores of rulings. Many of these rulings do not have obvious right or wrong answers: they are calls that are discretionary and are based on a judge's evaluation of a witness or his perspective on how a question is presented. The cumulative weight of these decisions, and how they interact with one another, becomes the law of the case. Thus a ruling on a piece of evidence might be admissible in one case, and not in another. Although the rule of law requires uniformity and transparency, it is a given that judges differ. The law of the case doctrine sets in quick-drying concrete the ad hoc decisions of the trial judge presiding over a given dispute. These discretionary calls are rarely capable of being over-turned on appeal.

Thus, in the Hayes case, Judge Blue has placed his thumb prints on the scales of justice. The parties have developed a working relationship with him, and understand his perspective on close evidentiary rulings. Undoubtedly, there have also been many pre-trial conferences in chambers, well hidden from view, in which the lawyers and the judge have worked out compromises, whether stated or not, on certain issue. A new judge simply won't have that context. Put prosaically, a new judge may well bring a new strike zone to the batter's box well into the game.

A powerful argument can be made that a new judge should be able simply to read the transcript of what has thus far transpired in the case. Such a reading will inform the judge about those decisions and rulings that bind the parties in this particular case. But words on a page require interpretation, and that means a judge to divine their meaning. No two judges will agree on all things. Law is not a hard science.

My hunch is that if Judge Blue is too ill to return, the State will be eager to agree that a new judge can simply read his way into the case. The State is, after all, moving in for a kill here and wants Mr. Hayes' blood sooner rather than later..

But I cannot imagine the defense agreeing to permit a new judge to get behind the plate. This is a life and death struggle for Mr. Hayes. So long as the State cannot ask a jury for permission to stick a lethal needle into Mr. Hayes' arm, Mr. Hayes, and I dare say, humanity, wins. There is no justice in killing.

I suspect Thomas Ullmann, Mr. Hayes's lawyer, will object to the seating of a new judge for the simple reason that if a new judge cannot be seated, it would force a mistrial. The State would then be forced to reconsider its decision to reject Mr. Hayes' offer to plead guilty in exchange for an agreement not to kill him.
Remember, the defense wins so long as Mr. Hayes remains alive.
Of course, that assumes Mr. Ullmann stays well within the conventional box most lawyers inhabit. If he gambles boldly, he can agree to a new judge. There is plenty that suggests this would be a smart choice. First, the jury in this case appears confused: One juror has already begged off, claiming the state's lack of preparation so distracted him he could not follow the case. Other jurors are asking questions, such as how did the surviving victim managed to untie himself just in time to escape a burning building, according to a note sent to the judge. At week's end, the jury sent another note all but begging the state to speed up presentation of the case. Could it be that this jury is being driven to distraction by a poorly tried case?

I've appeared before Judge Blue and know him to be a good and decent man. Here's to hoping he recovers soon and is able to resume his role in this case. But if he can't, I'm betting the case mistries. The law of the case doctrine requires it. This is show trial that deserves an early curtain.

New Haven Miscellany: State v. Hayes

I passed through New Haven mid-day yesterday after a quick pre-trial in New London in a child sex case.  My hope was to poke my head in on the trial of State v. Hayes to see whether the atmosphere in the room was as surreal as press accounts suggested.

It was just after noon, and there were television trucks lining the street in front of the courthouse. As I crossed the street to enter the building, I noticed more food vendors than usual. It seems everyone wants a piece of the action.

"Joe," I will call him, had his hot dog cart almost on the steps leading into 121 Elm Street. I had never seen his cart so close. He must have been violating some municipal ordinance or other.

"How's business?," I asked.

"It was fantastic two days ago," he beamed. "But the wind really blew yesterday," he complained. "Business was off." But he looked hopeful, even determined, to sell as many hot dogs as he could to those assembled for the greatest show in Connecticut this week, the show trial of Steven Hayes.

The ground floor of the courthouse was more quiet that I expected.

"Not the crush I expected," I told a weary marshal as I pranced through the metal detector.

"Oh, oh," he said. "Just wait until the lunch break. It's a mob scene."

On the elevator ride up I asked a courthouse regular what was new. He's a lawyer with many years at the bar.

"This place is a freak show," he said. "A complete waste of time. The state should take the guilty plea and knock off the charade."

Folks milled around the sixth floor of the court. A guard stood behind a separate metal detector at the entrance to the courtroom. There were no seats. There was a line.

"I'm from CBS in New York," a beefy man intoned. "Can I swap one of the CBS seats with a colleague?'

The answer was no. Once in you stay in. No valet service or seat swapping permitted. I wasn't going to wait on line to watch a case that had already driven one juror away in distracted despair.

That afternoon I spoke to a member of the very office prosecuting Hayes. This soul, whose identity I shall protect, seemed wearied by the charade as well. "We've got sixteen other murder cases to try here," he/she said. The Hayes case was creating a log jam. I could hear weariness in the voice of a person who'd seen too much sorrow. When I said the courthouse really didn't need a show trial and suggested that if the Petit family really wanted public validation of its sorrow it could sue civilly, as had Ron Goldman in the O.J. Simpson case, my colleague registered a silent assent.

Next week jurors reassemble for more evidence and more psychodrama. But there's little justice to be had in the courtroom. Trying to kill a man who wants to plead guilty but is compelled as a matter of law to fight the charges is a farce. Almost as absurd an act as trying to convince 12 jurors that if they kill a killer the world will somehow be a better place for the survivors.

A Shocker In New Haven: Juror Asks What's This Murder Case About, Anyhow?

At the rate things are going in the case of State v. Hayes, the case could end as early as next week. But the ending will be a mistrial, not a verdict. That's because in two short days of evidence, four jurors have already decided to bow out of service. It takes twelve men and women to make a verdict. If there are fewer than 12, it's back to square one, unless the parties agree to permit the case to be decided by a rump jury. I don't expect the defense to permit that. When the state seeks to kill your client, a mistrial is champagne-popping time.

In fairness, the 12 jurors, six alternates and two back ups were picked during a marathon jury selection process that spanned a period of a couple of months. It's been a while since the entire group was selected. Returning to the courthouse after a hiatus in some cases of more than half a year was bound to produce a couple of surprises. Three jurors opted out before the gavel fell opening the proceedings. Apparently, one other panelist fell by attrition without notice. So as today began, there were twelve jurors and four alternates. In most cases, that would be more than enough to bring the proceedings to a tidy conclusion a couple of months from now.

But then the unprecedented occurred. Before the lunch break today, a juror sent a note out to the judge. He had concerns he wanted to discuss. The note was tendered apparently during the gripping testimony of Dr. William Petit, the sole survivor of the Cheshire home invasion. Judge John C. Blue decided to wait until after Dr. Petit finished testifying before addressing the juror's concerns.

When the juror was questioned, he offered the following: He did not think he'd be able to render a verdict in the case given the evidence. Is the case too gruesome, you might wonder? No. That was not the issue. The state's case was disorganized and made no sense, the juror said. It appeared as though the case was poorly prepared, he opined. During the most dramatic and sympathetic testimony of the case, that of Dr. Petit, a juror all but raised his hand and asked: "What the Hell is this all about?" The sucking sound you heard early this afternoon was that of the prosecution's gonads retreating to a safe, dark place.

I've spent a lot of time in courtrooms and this ranks as one of the most amazing things I've ever heard. Mind you, the case was all of one and one-half days long. The state had only yesterday given an opening statement laying out its claims: A family was slaughtered and terrorized in the dead of night. Then the defense stood up and admitted that Mr. Hayes had murdered the mother of the family and participated in the mayhem. This isn't exactly a case turning on an obscure point of law or difficult to conceive facts. A juror vetted after lengthy voir dire by both parties simply declared "no mas."

I have never seen a prosecution so effectively neutered and so quickly. It is as though the juror listened to the state, considered its star witness, and then decided the case wasn't worth the time it would take to decide it. How can the prosecution rebound from this unsubtle humiliation?

Judge Blue questioned the jurors outside the presence of other panelists. The juror was questioned by counsel as well. Did he understand that evidence is admitted piecemeal, that trial is akin to assembling a vast puzzle? Oh, yes; he understood that. He just didn't think he could make a decision given the manner in which the case was being presented. The state moved to have the juror it had rendered senseless with its opening statement and presentation of evidence removed from service. The defense, sensing hope perhaps for the first time in this seemingly hopeless case, wanted the man kept on the jury. Judge Blue discharged the juror and worried aloud about a mistrial.

Cold records rarely reflect the underlying symbolism of a trial. Could it be that in this case all the public rage, fuss and furor of the past three years has desensitized this jury? Perhaps a governor who vetoed lawmakers' efforts to repeal the death penalty by talking about this very case offended the juror, as well it should have. How is it that as the state's star witness testifies, the man who should be rallying jurors' sympathy to move in for a quick kill, all one juror can do is beg to get off the case because the case makes no sense? Something is happening in that courtroom; what it is is not exactly clear.

The defense sensibly chose not to cross examine Dr. Petit. He told his story. He told about escaping his own home of terrors. No doubt there were tears aplenty and sympathetic gasps in the courtroom. But could it be that this was all a bit too theatrical for an ordinary juror? Has the state striven to strike a tragic note but failed even to inspire gravitas? I find that hard to believe.

But the jurors were there and saw something.  Once the Doctor's testimony ended, one juror sent a note for the judge. How, he wondered, did the doctor manage to escape from the basement after he had been tied to a pipe and while his hands were bound. What went wrong for the state today? How does Dr. Petit weep the tears of the bereft and inspire something other than sympathy? How?

All trials are about a struggle of good versus evil. To win a trial, you must keep evil on the other side of the aisle, and capture, if you can, goodness. But what of this dynamic in a case where the evil is so obvious and apparent that it is not contested? What does the state do when the defendant admits the very crimes of which he is accused? In that case, a juror could well wonder what motivates a state to play at justice in such a farcical and public manner. Is all this just so that a man who admits his guilt can be killed? Is the state seeking to manipulate the jury to become the very sort of evil the state condemns. Yes, we should kill the killer, the state proclaims. Killing makes us good. No wonder the juror wanted off the panel. This is madness, not justice.

The case resumed with twelve jurors and three alternates. The evidence moves briskly. One senses that the defense is on target and moving according to plan. Of the state, all that one can say is "ouch." Just how you try a man for murdering a loving wife and mother, put her husband on the stand to testify about the last moments his family lived, and then have a juror beg off because the case makes no sense is, frankly, one of the most astounding things I have ever heard of in a courtroom.

Day three cannot rival today for surprise. Or can it?

The Show Trial Begins: The State Grooms New Killers

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.

State v. Hayes: Opening Day Forecast

Snipers will prowl the roof of the New Haven Superior Court this morning just as they have on other occasions when Steven Hayes appeared there. These lawmen will peer up and down the streets of the Elm City making sure that no one gets a free shot at Mr. Hayes. It is a given that many folks in the state want him dead. It is the job of these SWAT team members to make sure that he is killed in the right way, at the right time, and by the right folks.

Standing between Mr. Hayes and death are Thomas Ullmann and Patrick Culligan, the two senior public defenders appointed to defend him. Saving Mr. Ullmann from the verdict of an angry jury's lethal verdict won't be easy. I expect a packed courtroom of folks sporting for blood. The evidence against Mr. Hayes is overwhelming. He and a co-defendant did kidnap, rape and murder a mother and two daughters after beating the man of the house and leaving him for dead. As the two killers fled the scene, they set the family's home afire. It was as though Satan escaped the confines of Hell one night and stormed Eden.

Mr. Hayes will be convicted of most, if not all, of the crimes for which he has been charged. That is a foregone conclusion. The real question is whether he will be sentenced to death. A betting man would be prudent to bet that the jury decides to kill him; but I doubt Mr. Hayes will be sentenced to die. That is because I expect Dan Malloy to win the November election for governor, sometime before evidence in the case closes. Mr. Malloy is a death penalty opponent, you see. He is expected to welcome legislation to abolish this state-sponsored savagery. The incumbent, N. Jodi Rell, vetoed a law repealing the state killing, citing in particular the Hayes case.

As trial opens, the court will permit opening statements. Such statements are rare as a matter of Connecticut criminal procedure. Mr. Hayes offered to plead guilty to capital felonies, but state law does not permit him to agree to death. So the trial goes forward as scheduled today, a gruesome prime-time farce.

Mr. Ullman will open for the defense. Here's the closing I expect:

"Ladies and gentlemen, all of you have by now heard or read about this case. The basic facts are uncontested. A family was destroyed in July 2007, and with their destruction all of us lost the peace of mind that comes of the assurance that simple hopes and dreams are sacred: A warm home, a loving family, beautiful children growing strong and confident in the shade of their parents' strength.

"There is no doubt that Stephen Hayes cut this family down. He fled from the scene in the family car as the home burst into flames he and a co-defendant set. You will see horrible evidence of his handiwork in this trial. There will be photographs you will wish you never saw. Even text messages and photos will record this particular brand of savagery. You will see this and you will grow numb with shock; when the shock recedes it will be replaced by anger. And finally, you will be brought to a place in which you, too, will be ready, willing and able to kill. The state will ask you to kill Stephen Hayes, and I suspect that you will want to do so.

"I know this because Mr. Hayes has already walked this road of rage and remorse. He has offered in this case to plead guilty because he is guilty. But our law says that he cannot enter this plea. The law requires a man faced with death to fight for his life. It is an odd law, if you think about it. A man who wants to plead guilty cannot do so if the state seeks the death penalty because a guilty plea is tantamount to suicide. So we summon you and gather the community together in this room for the weeks and months to come so that State of Connecticut can gather every gory and shocking detail of an uncontested terror and parade it before you in an open courtroom. We call this horror justice.

"Mr. Hayes offered to plead guilty because he is guilty. But the state, these prosecutors sitting here behind me and to my right, they want you to kill Mr. Hayes. They want you to see what he did: see the blood of innocent children, hear the screams of a mother's despair, smell their flesh burning. They will even offer remnants of clothing for you to touch. Your senses will be engaged here in an effort to inflame your sensibilities. I predict, ladies and gentlemen, the state will succeed in inflaming you.

"Mr. Hayes wants to plead guilty, and so he has, by act, word and deed. He hoarded medication in his cell, and swallowed what he hoped would be a lethal dose of pills not long ago. Perhaps you read about it. The state did not let him die. The state chained him to a bed so that he could be nursed back to health and brought here to trial. To kill Mr. Hayes must be a thing of justice. He is our fatted calf, to be offered up in rage and anger and self-righteous fury by you in a trial in which you must first find him guilty, and then find that he must die. I suspect my client will sit here day by day wishing he had succeeded in taking his own life. The prosecution won't let him: You can't die unless we have the pleasure of killing you. This is a sick and twisted ordeal, I tell you.

"Old lawyers refer to some trials as a slow guilty plea. So this one shall be. We will have few questions in this, the guilt phase of the trial. We will let the state find a voyeur's pleasure in recreating the crimes. You will see the state has spared no expense to do this task, a task we want nothing more than to spare the state, and you. But the prosecution insists that this show go on. It is necessary, you see, to go through this to bring you to killing fields all your own. Mild and unassuming as these prosecutors are in demeanor, they bring the cold-hearted determination to kill to these proceedings. They wish nothing more than to make you accomplices in an act the law will not permit them to commit without your help.
I suspect Lady Justice sheds a silent tear behind her blindfold this morning.

"Mr. Hayes is a killer. He tried even to kill himself. For all I know he will try again during this trial. He has lived this Cheshire horror once, and does not relish its replay here for you. He sought to avoid it. But the state kept him alive so that you can have the satisfaction of killing him yourself.

"In the penalty phase of the trial, we will wage the fight the law requires us to wage. We will ask you then to let him live. By then you will know things about pain, grief and things without names that you cannot even imagine now. You will know then what it is like to kill, and to glory in the killing. I will ask you then to put aside the savage lust for revenge and to stand aside. There has been enough death in the case to sate the state.

"Thank you for listening to me. I can see that you are sober and serious minded people who have come here to do justice. In this case, we will ask that you lock Mr. Hayes away for the rest of his natural life. I won't insult you and say that such punishment is more savage than a painless death at the hands of the Department of Corrections, a death supervised at arm's length by physicians, a death far kinder than Mr. Hayes' victim's endured. That would be an insult to you, to the memory of those killed, and to the heart-broken rage of Dr. William Petit, who must somehow find a way to survive these crimes.

"But I will ask you to avoid in the name of justice once again dipping clean hands into warm blood. This trial, ladies and gentlemen, is unnecessary. We fight it because we must. The law permits nothing less when the state seeks to kill a man. I welcome you this sad September morning to the killing fields of justice, where vengeance prowls, and reason is left chained unseen and weeping that we are such mortals as require this theater, a performance designed and intended to do nothing other than to reduce you to a state in which you overcome your revulsion over the thought of killing another, and decide to become killers yourself.

"Welcome to Hell, ladies and gentlemen."

And with that, he will turn the case over to the prosecution. A wise lawyer, a lawyer cut from the mold of Clarence Darrow in his defense of Leopold and Loeb, would say little in defense of Mr. Hayes in the guilt phase of the trial. Recall that Leopold and Loeb was a court trial: What would, or could, have Darrow said to a jury? The real fight here is to save a life and to prevent twelve more people from growing too comfortable with the taste of blood on their lips.

Lights, Camera, Kill!

I have my doubts about whether Steven Hayes can get a fair trial in New Haven, Connecticut. He stands accused, after all, of the horrifying rape and murder of a physician's family in the affluent bedroom community of Cheshire, located just north of the Elm City. He and a co-defendant were caught fleeing the scene. Press reports reflect what appears to be a mountain of evidence against the two men. Trial seems like a formality.

At least the guilt phase of the trial seems like a formality. The real drama in this case arises from the decision the jury must make on whether to kill Steven Hayes. It will take a legal miracle to prevent that from happening. Well-placed sources suggest that among the evidence to be introduced at trial are text messages and photographs the killers sent to one another from different parts of the house as they went about their grim business. 

Preventing this trial from devolving into the work of a lynch mob has been the work of Superior Court Judge Jon C. Blue. He has thus far succeeded in avoiding the Lance Ito syndrome that transformed the O.J. Simpson trial into a passionate farce. Several months of jury selection were orderly and, by Connecticut standards, efficient. (Why we require individual, sequestered voir dire in the state is a mystery to me; there is no evidence this wasteful process yields a higher quality of justice. The practice merely makes a long wait for trial in the state the norm; in many cases in Connecticut it takes far longer to pick the jury than it does to present the evidence.)

It takes a lot to get a Connecticut jury to kill. This isn't Texas or Florida; you don't see gun racks on cars, and folks here are generally wary of firearms. Indeed, I cannot recall the last time a New Haven jury decided to kill anyone. Passions will have to be stirred to just the right pitch to put jurors in a killing frame of mind.

Dr. William Petit, Jr., intends to do his part to see to it that Hayes is killed. Dr. Petit is the sole survivor of the home invasion. Although savagely beaten and left for dead, he managed to walk out of his burning house as his wife and children lay dying and the killers drove off.  His miraculous survival comes, no doubt, laced with a savage case of survivor's guilt. Dr. Petit's rage is well founded. 

Since the murders in the summer of 2007, Dr. Petit has become a veritable rock star of rage; he's the state's prime cheerleader chanting "Kill!, Kill!, Kill!," from the sidelines. And no one dares seek to stop him. When he arrives at the courthouse, he is flanked by reporters. A public relations firm guides him, helping to calibrate his message. He has political power. When the governor vetoed legislation repealing the death penalty, she referred to the Petit case. When Petit complains about how long it takes to get a case to trial in this state, the press reports his opinions. He all but gives press conferences on the courthouse steps.

It says something dark and disturbing about American mores than we glorify victims and pay them the heed due celebrities. Does any other society defer in almost hush tones to the most disturbed person in the room? I suspect in most places around the world, Dr. Petit would be pitied, and seen for what he is, a man broken by grief and consumed by a rage than nothing can slake. But why, in the United States, do we make heros of victims? Why is there an Adam Walsh, a Nancy Grace, and now, a Dr. Petit -- folks who transform private visions of Hell into near celebrity status?

The lawyers defending Steven Hayes this week asked the Court to place some limits on Dr. Petit. As a private citizen, the doctor has a First Amendment right to speak. Lawyers in the case, however, have been muzzled by a gag order, a murky and questionable power the court retains over them as offices of the court. But Dr. Petit is no stranger to these proceedings. He is a victim, and under our state constitution, a victim has a right to be heard. But why are victims given rights without attendant responsibilities? Sure, Dr. Petit has a right to heard, but it has no right to transform these proceedings into a circus of rage. With rights, we say to children, come responsibilities. 

Thomas Ullman, lead counsel for Harris, complains that Dr. Petit is getting special treatment in this case because he is a white, upper middle class professional. Had the victims in this case been a poor black woman and her kids, the case would not be a media event. Of course, Ullman is right. This was rape and murder in the closest thing most Americans will ever get to Eden: an upper middle-class, white bedroom community.

If Judge Blue is reluctant to limit Dr. Petit's grief work on the courthouse steps, he should lift the gag order limiting what the lawyers defending Hayes can say. The right to a fair trial is too important to permit the court to become complicit in the work of a Grey Poupon lynch mob. Let the lawyers address Dr. Petit's tragic bloodlust in a forum equal to that which the doctor enjoys. Permitting doctor Petit to play sniper in these proceedings is uncalled for.

Dr. Petit is a tragic figure. But he is not a hero. His grief should be placed in perspective, and his point of view appreciated in the context from which it arose: the horror, rage and guilt of a man who walked away as his family was slaughtered. His is the last voice should heed in deciding what justice requires. Leaving him alone on the courthouse steps to hold press conferences transforms the pursuit of justice in the sort of ratings war Lance Ito would have enjoyed.

"Bad" Books In Connecticut Prisons?

Books for prisoners is an issue I care deeply about. It is not simply that I own a used bookstore, and therefore have an interest in feeding an addiction to words. No, the issue is more fundamental. Reading and a sense of spiritual freedom go hand in hand. Epictetus may have been a slave, but words set him free. I've met prisoners transformed by what they read. Above the door to my bookstore is a simple sign: "Set Yourself Free."

An unusual hearing will take place tomorrow in a Connecticut courtroom about the reading habits of one prisoner, Steven Hayes, a defendant now facing the death penalty for his role in the slaughter of all but one member of the Petit family in Cheshire, Connecticut, during the summer of 2007. The case has become legendary across the nation. Hayes and a co-defendant burst into the home of a prominent physician in the dead of night. They beat the doctor senseless, then terrorized his wife and daughters, eventually raping and murdering them by setting the house afire. The physician escaped.

The jury has been selected in the Hayes case and evidence will begin in September. Both sides are now engaged in what lawyers call motion practice, an effort to determine, before the jury ever sets foot in a courtroom, just what can and cannot be shown to the jury.

Hayes' lawyers have moved to prevent the state from offering evidence of what Hayes was reading while incarcerated in the Department of Corrections on an unrelated crime. The press reports the defense wants to keep jurors from reading "criminally malevolent" books while incarcerated at the Cheshire Correctional Institution.

What, pray tell, is a criminally malevolent book? Is that sort of like a homicidal gun? Books don't commit crimes; people do.

I worry that this motion and the attendant publicity will fan something like increased censorship in the prisons. It is already difficult to get reading material to prisoners. Jailers worried about contraband will not let folks bring books to prison, for fear of what might be secreted in the binding. Try delivering a copy of the Oxford English Dictionary to some half-wit and watch what happens. You can pack a lot of smack in the bindings of that multi volume set. You must have new books sent directly from a publisher. My efforts to send used books to the prison have failed.

But a dictionary changed Malcolm X's life while incarcerated. He read it cover to cover and was empowered with the words he discovered and made his own. Words are liquid fire, setting aflame souls tha will burn for good or ill.

I've know about this motion in the Hayes case for awhile, although I have yet to see a copy of it, so I've had time to consider what book or books the state may seek to offer as evidence. Somehow I doubt there are volumes on how to burn a house to the ground or tie a child to a bed. Prison officials are literate enough to catch those.

My prime title is Truman Capote's In Cold Blood, the story of the slaughter of a Kansas farm family in, as I recall, the 1950s. This is a piece of brilliant writing that transforms horror into mesmerizing prose. Did Hayes read that work and decide his deeds could do better?

The defense believes that permitting the admission of these books into evidence is more prejudicial than probative. In other words, this evidence will anger the jury such that a fair and dispassionate verdict cannot be rendered. I doubt that is the case. The state must prove first that Hayes committed the crime. If it succeeds at that, it then proceeds to a penalty phase where it may seek to prove that Hayes acted in an especially cruel, heinous or depraved manner. If Hayes was reading up on notorious crimes trying to figure out how he could best the masters of sadism in sheer horror, I think a jury is entitled to hear that.

Last week, the defense also filed a motion to close the court during argument on these motions, lest jurors hear of the doings. That motion, too, should be denied. The jury has not been sequestered in this case. They are, rightly or not, presumed to follow the court's instruction to avoid publicity. Closing the court so that no one knows about this hearing conflicts with the public's First Amendment right to know just what is going on in our courts, and, apparently, in our prisons.

There are no such things as bad books. But there are bad men. Treating books like radioactive evil to be sequestered and hidden is bad jurisprudence. Hayes was a reader. So be it. He may well be a vicious killer too. We may well punish him for his acts without depriving him and others imprisoned the right to read widely and well. The world presents choices for us all. Putting blinders on those in need of light will not help them to see any better. It will merely empower a censor.

Mr. Hayes Is Winning Converts Daily

Steven Hayes is no Hannibal Lechter. There's no stirring of genius animating his brow. His eyes don't fire with secret commune with evil. Mr. Hayes' crimes shock and inspire terror. But for all that, he looks different in degree, not in kind, from many who have committed horrible crimes. He stands trial just now for his role in the kidnap, rape and murder of a mother and two daughters in Cheshire, Connecticut, in 2007. The state, of course, wants him dead.

There's little doubt of Mr. Hayes' guilt, although a jury has yet to consider the evidence and pronounce a verdict. He was caught fleeing the scene. There are grisly photographs of him participating in the carnage. He's even offered to plead guilty in this highly publicized affair, if only the state would forebear the deadly needle of revenge and spare his life.

But the trial plods on. After nineteen days of individual sequestered voir dire, 11 jurors have been selected. Eight more folks need to be picked to fill out the 12-person panel plus alternates. Evidence is set to begin in September.

The case raises a question few face directly. For whose benefit are we holding this trial?`

Mr. Hayes certainly seems less than interested in the proceedings.

Although jury selection began in January, the proceedings were interrupted when Mr. Hayes tried to kill himself by stockpiling psychotropics and then swallowing a one-way ticket to Hell. Of course, his custodians leaped in to save his life. He was comatose for a time. No expense was spared to bring him back from the edge of eternity. And why was that? So we could kill him.

He was lassoed to a bed and a vigil kept over him 'round the clock.

Psychiatrists announced he was competent to stand trial. Translated into lay terms, that means he understands the charges against him, and is capable of assisting in his own defense. Except he doesn't seem to want to assist. As the trial court questioned him to make sure he was all there, Mr. Hayes stunned the Court and his lawyers by announcing he wanted to plead guilty.

That set juridical heads spinning. The man was declared competent, yet he wanted to plead guilty. Perhaps he wants to die, too. What to do? His lawyers knew what they wanted to do. They threatened to seek permission to withdraw from his case. They oppose the death penalty, after all. Crusaders don't let details like a client get in the way.

In a capital case, trial proceeds in two phases: A jury must first find guilt. Only after this finding does the jury determine whether to kill. So why, really, did Mr. Hayes' lawyers threaten to withdraw? The client is always the master of the ship when it comes to a decision about whether to plea. And the law does not permit Mr. Hayes to waive the penalty phase. Yes, it is wrong for the state to kill. But let's not forget the man whose life the state wants to take. In the end, that life belongs to Steven Hayes, and not to his lawyers.

It seems like Mr. Hayes is a prop in everyone else's psychodrama. The state wants to kill him to satisfy the angry blood lust of a state stirred by a vicious murder in a white upper-middle-class enclave. The surviving victim of the deadly rampage wants death for the sake of vengeance and the false sense of closure that will yield. His lawyers have vowed holy war on the death penalty and have vowed to fight it to the death regardless of their client's wishes.

Is it any wonder Mr. Hayes has grown weary of the melodrama? He just wants to be let alone. So he asked the judge for permission not to attend jury selection in his own trial.

Permission denied, we learned today, in a ruling the reeks of passive-aggressive self-righteousness. "You can't kill yourself, Mr. Hayes. We get to do that. And you mustn't kid yourself into thinking you can avoid watching the months-long orgy of revenge. Sit there like a good little killer and suck it up." The ruling is repulsive sadism.

Mr. Hayes is competent. He has a right to decide whether to plead guilty or not. He faces a state bent on nothing more than vengeance. Is it any wonder that he chooses not to sit day-by-day light some freak-show spectacle to be drooled over by those who want to see him dead?

The judge in this case has wooden ears when he tries to hear a soul cry out in agony. Despite Mr. Hayes' "obvious general detachment, Hayes does show flashes of alertness from time to time and has, when addressed, intelligently, answered questions put to him by the court. He is no automaton," the court ruled. Connect the dots judge. This man who is no automaton ought to have the right to decide whether he wants to sit and watch this bloodsport.

I suspect Mr. Hayes is simply sick and tired of being a pawn in other people's games. Requiring him to sit through endless day after day of jury selection in his case serves no purpose. If he is competent enough to assist in his own defense, he is competent enough to make a decision about whether to attend jury selection. Why not give the man the dignity that comes of his moral autonomy?

The answer, sadly, is that so long as he breathes, we can torture him, endlessly, and thus derive some sick sense of self-righteousness.

I have edited this piece to reflect the concerns of a very thoughful commenter named "Bryce." (See below.) My purpose is not to lionize Mr. Hayes, but to call into question the necessity of this very sad spectacle. This trial needn't be a farce. And for all the evil that Mr. Hayes undoubtedly has done, he is still entitled to elementary dignity in the proceedings. Treating him as a pawn is inconsistent with that.

Mr. Hayes may not be any Hannibal Lechter, but, somehow, the drama being played out in a New Haven courtroom shows how firmly in control of our emotions the man remains. He is the very image of evil we so love to hate. We won't let him fade away into quiet oblivion. No, we must kill him, publicly, and put him on display day-by-day. Little by little, we become smaller versions of the great evil that possesses a killer like Steven Hayes.

Checkmate, Hayes?

It is difficult to know what Steven Hayes wants. Sure, he stood in open court and told the judge that he wants to plead guilty to the charges against him, including the capital felonies. It is black letter law that the decision to plead guilty belongs to the client. But is Mr. Hayes also volunteering to be executed? The law is just as clear: we have a presumption in favor of life. Someone seeking to kill themself is presumed incapable of knowing their own interests.

Hayes is charged with kidnapping, rape, murder and a host of other offenses arising from his role in the home invasion that devastated the Petit family in Cheshire 2007. He faces the death penalty for certain of these offenses.

At a competency hearing in New Haven yesterday, the court found Hayes competent. That means he understands the nature of the charges against him and is capable of assisting in his own defense.

Proof in capital cases proceeds in a two-stage proceeding. In the guilt phase, a jury determines whether the defendant did the crime. In the second, penalty phase, the same jury decides whether the defendant should be put to death. It is the only criminal proceeding in Connecticut in which jurors are permitted even to consider punishment. Normally, jurors proceed like moral neuters, simply making a determination of guilt without regard to the consequences.

There is no question that Hayes has the right to plead guilty to the charges against him. A decision to enter a plea is the client's choice. All a lawyer can do is advise. So Hayes can stop the guilt phase in its tracks with a plea. But can he also decide simply to be put to death?

Our law permits anyone to be taken into custody on an emergency certification when they give police probable cause to believe that they are a danger to themselves or others. A person so whisked into custody is taken to a hospital, confined, and subject to a probate proceeding to determine whether they are capable of caring for themselves. A person with active suicidal thoughts is deemed incapable of caring for himself and is deprived of the liberty necessary to kill himself.

So what do we do with Hayes? A judge just found him capable. He can assist in his own defense. Yet, if his intention is to simply say "Kill Me!" then he is a danger to himself and is not capable.

Judge John C. Blue may decide that justice requires acceptance of the guilty plea but that the penalty-phase trial must go forward. No man can rationally submit to his own death, the reasoning goes. Hence, let a jury decide. In this instance, we'd have a grisly show trial. The state would parade its witnesses before jurors to show that the crime was horrible and the man who committed it lacks redeeming qualities. "Kill him," the state would say. "Oh, yes, please do," would be the defense. Of course, in such a case, Hayes' lawyer has a great argument: "Mr. Hayes is not without remorse, ladies and gentlemen. You see, he feels so bad he wants to die"

That would be a mockery of justice.

The most prudent course at this point is to appoint a guardian ad litem for Hayes. He needs a legal representative to provide him with independent legal perspective. Thomas Ullman, Hayes' lawyer, is a great advocate, but he is locked into the fight to save Hayes' life. There may well be a conflict between lawyer and client here. Suppose Hayes really wants to die. Wouldn't Ullman find that objective repugnant and irrational? If so, he'd be obliged to withdraw from the case.

The Hayes case evokes the ghost of Michael Ross. Ross threw in the towel and submitted to death after years of appeals. Hayes is simply jump-starting the game. The issues in Ross and Hayes are, however, identical. Who makes he decision about whether Hayes lives or dies? The state wants Hayes dead. The law presumes such decisions to be irrational. But suppose the state and Hayes want the same thing? Who is irrational now: the state or Steven Hayes?

I say abolish the death penalty. It sickens to watch this spectacle. Steven Hayes has long ago offered to plead guilty in exchange for the state abandoning the plan to kill him. That plea should long ago have been accepted.

Cheshire Home Invasion: A Competency Exam For The State?

The case of State v. Hayes has once again ground to a halt. A competency exam has been ordered. But Judge Jon Blue ordered an examination of the wrong party. The State of Connecticut should have been remanded to a forensic institution to see whether it is playing with a full deck. That's the party appearing to be grossly irrational. Instead, the court ordered that Mr. Hayes be examined.

Mr. Hayes, a co-defendant in the 2007 home invasion in Cheshire, has offered to plead guilty to the capital felonies and assorted charges arising from the gruesome rapes, murders and arson at the Petit household. He is willing to stand in open court and accept responsibility for his crimes.

But the state is unwilling to accept the plea if it entails waiving the right to kill him. In other words, the state wants Mr. Hayes dead. So the trial goes forward, by fits and starts. After weeks of jury selection, five jurors are seated. It will take months more of individual sequestered voir dire for the lawyers indoctrinate their way through a few hundred more jurors in search of just the right panel.

What is wrong with State of Connecticut?

I tried to find out, but, I can't find the state. I'd like to talk to it and try to reason with it. All this money on an unnecessary defense. The Waterbury Republican reports $800,000 on the defense and counting. How many millions will we spend? How much mad money is enough?

I can look for the State until my hairs turn white and my teeth fall out. I will never find it. One of the biggest cons of all in criminal cases is the manner in which we present them to juries. We announce the case as State v. the defendant. But the state is a mere legal fiction. In a criminal case, two parties drive the prosecution: the prosecutor and the victim. Both have interests that are worth pondering.

New Haven State's Attorney Michael Dearington is calling the shots in the Hayes prosecution. The laconic lawyer is the sole person who can decided whether to accept or reject a guilty plea from Mr. Hayes.

Why has the prosecutor turned a deaf ear? Ought he be subject to a competency exam? The decision is plainly irrational.

Three factors force the prosecutions hand: Politics, public opinion and Dr. Petit.

It is well known around the state that Mr. Dearington is no fan of the death penalty. New Haven rarely seeks it, and never does so successfully. That raises questions. John Connelly in Waterbury, by contrast, operates a death mill by contrast. If New Haven does not seek death in this egregious case, when will it ever? And if the penalty is freakishly and randomly applied in the state, isn't that arbitrary in violation of the Eighth Amendment? Call Hayes a political kill.

Public opinion is still red hot against Hayes. There's not much to like about the guy. Isn't killing him what the people want? But this case stirs passions because it crosses socio-economic lines. Identical facts against a project dweller in Bridgeport would not stir national passion. This is a case about the rape and murder of ambition, hope and the privileges of the upper middle-class.

And then there is Dr. Petit.

He is in some respects a sympathetic figure. He has lost all. His grief is obvious. I say he is undone by his grief. But rather than give him a quiet place to mend, he now tries to influence legislation, speaks out about the legal process, and holds forth as Connecticut's own John Walsh. What next, a co-host's role on America's Most Wanted with another man who has made a vocation of private rage? Does he suffer survivor's guilt for fleeing the home in which his family was extinguished?

In the meantime, Mr. Hayes is said to be despondent and awaits death. But the State keeps him alive. Why? So it can kill him. The storyline here? "You can't kill yourself; we want to kill you." Bizarre, twisted even. It's early yet, but this case is beginning to look like Michael Ross redux.

Competency exams are in order, all right. But Mr. Hayes is not the only person who needs one. I say dial another up for Mr. Dearington and Dr. Petit. The prosecution of this case looks more and more like an expensive farce.

Reprinted courtest of The Connecticut Law Tribune.

Why Do We "Death Qualify?"

Among the many inconsistencies in the law is the manner in which we distinguish death penalty cases from those cases in which the state seeks something less than the life of the defendant. The courts are content to ignore these inconsistencies because, as the Supreme Court put it, "death is different." But if that is so, why, in capital cases, do we go out of our way to assure that the jury fails to reflect a fair cross section of the community?

I am referring, of course, to the insidious practice of "death qualification" of jurors. A line of cases reaching back to Wainwright v. Witt, 469 U.S. 810 (1985) permits the practice. As refined by the later case of Witherspoon v. Illinois, 391 U.S. 510 (1968), death qualification permits exclusion of those jurors who make it unmistakeably clear that their opposition to the death penalty would either make it impossible for them to impose the penalty, or would not be impartial during the guilt phase of the trial.

For neophytes, here are some basics: A capital trial takes place in phases. In the first part, a the state seeks to prove that the defendant committed a "death eligible" offense. If the state prevails, the state then attempts to prove in a second trial before the same jury the presence of an aggravating factor such that the defendant should be put to death. The defense presents evidence of mitigating factors. Jurors then retire to balance the so-called aggravants and mitigants before signalling thumbs up or down.

In many jurisdictions, including Connecticut, jurors are routinely told in non-death penalty cases that they are not to consider punishment. That is the judge's job. Jurors are expected to make decisions about guilt or the lack thereof in a vacuum. They are transformed into moral automatons and deprived of the right to make a reasoned moral response to the evidence before them. The theory goes something like this: Focusing the juries attention on whether the defendant committed the crime eliminates the danger of improper motives' contaminating the process.

So why when the stakes are at their highest do we invite jurors to decide the question of life or death?

The vanilla answer is that the stakes are so high we want the reasoned moral response of the jury in making the decision. But that glamorizes death penalty trials in a way that mocks justice. Surely killing someone is different than locking them away for 30 or 40 years, or for life, but the distinction between physical death and social annihilation is the sort of armchair line-drawing that makes little sense in the trenches: Sit, sometime, with a client sentenced to natural life explain the "up" side some time. It's not very convincing.

Juries should know the consequences of what they are doing. Would jurors send a young man to prison for decades for selling a little cocaine? In most cases not. The penalty is disproportionate to the harm. And what of statutory rape? A young man has sex with a willing partner who falls just short of the line separating those the law deems able to give consent from those unable to do so. Would jurors routinely send their neighbor's son to prison for an indiscretion many of the jurors themselves may have committed as young men and women?

Juries are supposed to be a means of checking the government's power to abuse ordinary citizens. The threat of abuse comes not just from an overweening executive branch making vindictive decisions about who to charge with crimes. The threat also comes from legislatures inspired by passion to "get tough on crime" each and every time some new, and spectacular, crime captures the airwaves. Lawmakers don't deliberate on juries and learn about the character of the defendant and circumstances of the crime. Lawmakers read newspapers, answer phone calls from angry constituents and earn their livelihood promising to make us safe. Is it any wonder that many lack an abiding concern for justice? When it comes to the criminal justice system, lawmakers are the most dangerous branch of all: They can belch out mandatory minimum sentences without ever once studying a trial transcript.

Jurors, I repeat, should know the consequence of their decisions, and they should participate in the process of deciding punishment.

So why isn't death qualification in capital cases a good thing?

Death qualification is used to exclude those folks opposed in principle to the death penalty from a jury. That is a significant part of the American public.

Last October, a Gallup poll indicated that 69 percent of Americans favor the death penalty for those accused of murder. This number, according to the pollsters, has held more or less steady during the past 13 years. Excluding those who are undecided, that leaves roughly 30 percent of Americans opposed to killing in the name of justice.

In a capital case, then, a defendant is likely to find about 30 percent of jurors challenged for cause because these jurors believe it is wrong for the state to kill. Of course, some small percentage of this 30 percent may find themselves on a jury if they are able to persuade a judge and prosecutor they could put their convictions aside and vote to kill. But odds are such jurors will be excused peremptorily by the state.

The pool of jurors in a capital case is selected to exclude those members of the community who cannot impose the ultimate penalty. Why, I wonder, aren't jurors in non-capital cases told, for example, the following? "Do you favor imposition of a 20 year sentence for the sale of crack cocaine?" There is no good reason to pull a punch by permitting "death qualification" but not "punishment qualification".

And there is the lingering suspicion that those jurors who favor the death penalty are, in fact, more likely to find in favor of guilt. It takes a lot, one hopes, to overcome the normal social instinct against killing. When we death qualify aren't we in effect looking for jurors already mad as a Hell and just looking to do something about it?

A moving example of death qualification at work took place in New Haven, Connecticut, yesterday, where a juror broke down in tears during jury selection in the case of State v. Hayes , the home invasion case involving the murder of a popular doctor's family. "A college student broke down in tears on the witness stand when asked about the death penalty," The Hartford Courant reported. "It makes me feel uncomfortable," she said, sobbing into her hands. Those tears represent the salf of the Earth.

This young woman's voice will not be heard on this jury. Yet if the defendant faced the possibility of life without parole the issue of consequences would never have arisen.

I am not opposed to asking questions about the consequences of a conviction. It should be permitted in all cases, capital or not. Jurors who have reservations about what the state seeks should not routinely be excluded from service, unless, of course, the process is designed to remove barriers to execution. Jurors are a check not just on abuse of power by the executive branch, but a means of checking the excess of passion reflected by legislators.

Opening Day In Cheshire Trial. A Gag Order For Dr. Petit?

Did Governor N. Jodi Rell deprive Steven Hayes and Joshua Komisarjevsy of fair trials for their roles in the 2007 home invasion in Cheshire?

One of the lawyers for Mr. Hayes thinks so, and he has filed a motion to bar imposition of the death penalty in the case in the likely event his client is convicted. Expect Judge Jon Blue to deny the motion with hortatory puffery.

In May, 2009, the Connecticut General Assembly passed a bill abolishing the death penalty. Governor Rell, who at the time was still expected to seek re-election, promised to veto the bill, which she did on June 5, 2009. In a prepared statement to the Secretary of the State accompanying her veto, the governor had this to say:

"The death penalty sends a clear message to those who may contemplate such cold, calculated crimes. We will not tolerate those who have murdered in the most vile, dehumanizing fashion. We should not, will not, abide, those who have killed for the sake of killing; to those [sic] who have taken a precious life and shattered the lives of many more. Dr. William Petit recently quoted Lord Justice Dening, Master of the Rolls of the Court of Appeals in the United Kingdom, who said: ... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not."

I doubt that Dr. Petit, the husband and father of the three women murdered and assaulted in the Cheshire home invasion, looked this up Lord Dening by himself. Odds are his public relations firm did that. The man was a phyisician before his life was destroyed in a horrendous night of violence. Now he is a spokesman for the death penalty. I wonder who is bankrolling the public relations effort here?

“I need to stand up for what is just in society, and I need to stand up for my family personally,” Dr. Petit told The New York Times last week in anticipation of jury selection, which is set to begin today in a New Haven courtroom.

“We’re supposed to have the best judicial system,” Dr. Petit told the New Haven Register, but again noted how long is has taken to begin the trial.

“They keep using bits and pieces of arcane wordsmithing,” he added. “They’re not talking about Jennifer, Hayley and Michaela.”

No one seems to note that when Superior Court judge Richard Damiani imposed a gag order on the parties to prevent pre-trial publicity, the judge forgot, or lacked the nerve, to impose a gag order on Dr. Petit. The conventional wisdom is that the court lacks standing to impose such an order on victims. Why not?, I wonder. We have endowed victims with the right to be heard at all critical stages of a prosecution; many prosecutors now cower lest they offend a victim. The right to be heard has become in far too many cases a right to veto what the prosecution deems reasonable. It used to be that only defense lawyers complained among their peers about unreasonable clients; now prosecutors mumbles about being handcuffed by the rage of insatiable victims.

We have given victims rights, but, significantly, refused to them the responsibilities shared by participants in the process. Dr. Petit has a right to be heard and to scream for blood. Were the defendants' lawyers to take to the airwaves and wonder, aloud, whether Dr. Petit is really a prophet, or whether, tragically, his desire to stand now for his family masks the indescribable guilt of escaping the carnage as his wife and children lay dying in his home, those lawyers might well be held in contempt.

The show trials arising from the Petit murders are unnecessary. The two defendants have offered to plead guilty to life without possibility of parole. But the state won't accept the deal. It wants death, and thus the currency of justice is devalued as we pander to rage.

"[L]egal trials are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper," our Supreme Court once observed. When life is at stake, it is "not requiring too much that [defendants] be tried in an atmosphere undisturbed by so huge a wave of public passion," the Court said in another case. Someone needs to remind Dr. Petit of that.

Trials are "bits and pieces of arcane wordsmithing" only to those whose minds are made up and whose passions leave them with a taste only for the blood of the accused.
Trials are tests we impose on ourselves. Can the rule of law hold amid the worst that we are capable of doing? That is always an open question. Last century lynchings suggested that passions easily overcame the rule of law. Emotions are raw today in New Haven. Sharpshooters will no doubt prowl the courthouse roofs once again on alert for purveyors of street justice.

The trial of Mr. Hayes is a test. It is not a wake for those killed in cold blood, that has already happened, years ago. Neither is the trial therapy for Dr. Petit, that will last a lifetime. The trial is a test of whether we can behave any better than the men who apparently killed without remorse. We can pass this test. In doing so, we will have to learn to accept Dr. Petit's words at face value: He is unstrung by rage, grief and sorrow flowing in part from the brutal murder of his family, and, in part, from survivor's guilt. A just society would show compassion for the man, while not sacrificing the larger goals of justice.

The Rock Star Of Rage

I cannot fathom the grief of Dr. William Petit. I hope never to know such pain. And I pray that if I am ever undone by evil my neighbors will have the good sense to leave me in peace and not make me into a veritable rock star of rage.

Those of you not from Connecticut may not recognize the name, but you may well find his story familiar. In July 2007. two men burst into the doctor's home, beating him senseless and then killing his wife and two young daughters after sexually assaulting at least one of them. The men set the house afire. Dr. Petit, somehow, stumbled to safety.

Jury selection starts this week in the trial of one of the defendants, Steven Hayes. His co-defendant, Joshua Komisarjevsky, will go to trial next year. The trials are unnecessary as both men have already offered to plead guilty. They ask only that in exchange for their plea, the state not seek the death penalty.

The state has rejected this offer, and no judge can compel the state to accept the plea. So the machinery of death has been oiled, removed from its storage shed, and lurched into a New Haven courthouse. We do not kill with the ease of a Texan in Connecticut. The death penalty is rarely sought, and even more rarely applied. New Haven almost never seeks to kill; I cannot recall the last time the prosecution obtained a verdict calling for death.

Why the death penalty in this case?

In part, the public is outraged. Mssrs. Hayes and Komisarjevsky did not take out a family on food stamps, huddling in some desolate swamp of a housing project. No, these two defendants reached across the great socioeconomic divide and struck prosperous members of the upper middle class in a largely white and affluent suburban community. And it helps that the victims were photogenic. Their photograph has been in news magazines throughout the United States.

This prosecution is a revenge killing. The underclass we incarcerate, impoverish and seek to control with ever harsher penalties struck. We are reacting to these murders as though they were a slave rebellion. To keep order, we must be equally savage. Kill these monsters. Nothing less will do.

And we have abandoned reasoned judgment to proponents of victim's rights. We have lost sight of an elemental truth: No one can be a judge in his own case. We have professional law enforcement, courts, judges and juries to avoid the vendetta. However, the victim's rights movement has transformed the cost-effective pursuit of the public good into the grief-struck pursuit of vengeance. Dr. Petit wants these men dead? Then so be it!

This is silly, and demeaning. If the man is not unstrung by his sorrow, he should be. He should be wearing sack cloth and ash, not attempting to hijack a judicial robe.

A good friend sent me an email this week after the local media announced that Dr. Petit plans to be, as a newspaper put it, "the face of the victims" at trial.

"It is a wonder he can show his face," my friend said. "I cannot imagine how I could live with myself if I left my wife and kids in a burning house to die. I cannot imagine his guilt."

I had not thought about this perspective on Dr. Petit once in the years since the July 2007 home invasion. All I could think of was his loss. He had been beaten nearly to death; that he stumbled out of the house at all seems a miracle to me, a miracle for which I gave thanks, even if I sometimes wonder whether survival is a haunted curse in this case. But suppose, for a moment, that something like survivor's guilt is one factor inspiring the doctor to seek death here. Does sound public policy require a public trial to work out this private psychodrama?

The trial of Mssrs. Hayes and Komisarjevsky will costs millions of dollars more than simply confining the men for the rest of their lives. The case for the state seems strong. Convictions appear likely. The real trial begins, many months from now, in the penalty phase, where a jury is asked to make a reasoned moral response to the character of the defendants and the nature of the crimes. The state may not succeed in killing these men. It will spend millions of dollars trying.

But if more blood is drawn, what is accomplished? Killing these men teaches us nothing, and deters no one. It simply feels good. For a moment we can become just like the men we kill, sated with rage and lust we can take satisfaction in watching the life force in these men ebb. This twisted satisfaction is the law of the jungle, not justice. And as good as it may feel to Dr. Petit to have this fantasy of revenge enacted on a public stage, it demeans the rest of us.

New Haven State's Attorney Michael Dearington has no stomach for the death penalty. Does he feel he has no choice here but to seek to kill? Nothing in the law deprives him of a choice. All the law requires is that he heed the desire of the victim's representative. Victims have a right to be heard. Period. The wail of the grief struck is not the calm voice of reason. Have we become so tone deaf that we cannot distinguish reason from rage?

Let Dr. Petit howl all he likes for death. Let us join in unison in a sympathetic lament about the ubiquity of evil even amid our affluence. But in the end, let's stop making a rock star of a man brought low by the savage acts of others. There's still time for the state to accept the guilty pleas and to put an end to this despicable passion play. There is still time for justice to be done.

A Pointless Marathon In "Petit" Case

Jury selection starts Tuesday in a New Haven, Connecticut courtroom in the case of State v. Hayes. If the name means nothing to you, that's because you have been seduced by the symbolism of it all: Most folks refer to the matter as the Petit case, using the name of the three victims of the July 2007 rape, murder and arson. You know the case, that's the one where a doctor's beautiful wife and daughters were murdered in the dead of night and the house set afire. The man of the house, Dr. William Petit, escaped, somehow.

The state is seeking death, and that is saying something in New Haven. The state's attorney's office in the Elm City is lukewarm about state killing. One of its most skilled prosecutors won't set foot in a courtroom seeking the death penalty. One senses that death penalty prosecutions are done in out of obligation, not conviction.

But the Hayes case is different. People are wound up about this one. Hayes and his co-defendant, who will be tried separately, singled out strangers. They burst into the upper middle-class home of a popular doctor. They held the family hostage overnight. The wife was taken to the bank in the morning for a withdrawal. At least one of the daughters was sexually assaulted. The victims were tied up. The house set afire. The case has acquired the historic traction of the rape of the Sabine women. The state is seeking blood, and, odds are, it will get it.

But first a jury must be selected. And that will take months. Evidence is set to begin in September. A reporter who plans to attend the proceedings each and every day called me yesterday for comment. "Bring your knitting," I told her. "Watching jury selection in Connecticut is more painful than watching ice melt in a chilly room."

Jury selection in the Hayes case represents a perfect storm of what is wrong with jury selection in Connecticut. Alone among the states, we engage in individual, sequestered, voir dire, with lawyers free to engage in endless individual questioning of jurors outside the presence of all other jurors. In the Hayes case, one of the state's top public defenders, Thommas Ullman, who represents Hayes, is known in routine cases to question each potential juror for an hour or so. In this case, where jurors must be "death-qualified," Ullman will be lucky to get through three potential panel members a day. What's more, the case will be presided over by Judge John Blue, a quirky jurist aching for recognition who has elevated distinctions without difference into an art form. Not since Gilligan's Island has the prospect of pointless dithering been so ominous.

If I am ever in trouble, I want Ullman representing me. He is thorough, passionate and kind. But there is no reason in the world why jury selection, even in a notorious capital case, should take months. Now that the world is watching this case perhaps Connecticut will be shamed into abandoning individual sequestered voir dire in favor of group voir dire.

Connecticut is the only state in the nation that permits individual questioning of jurors in every case, whether criminal or civil. I have just completed nine days of jury selection in a non-death capital case in New London. We have ten jurors. It is expected to take another week to pick the balance of the 12-person panel, plus alternates. The process seems slow as molasses to me, and pointlessly so. Is it any wonder it takes so long to get a case to trial in Connecticut, and that witnesss get lost, or die, or forget what they saw by the time a case gets to trial? Justice denied is justice delayed, we say. But in Connecticut, delay is the norm: That is because in the overwhelming majority of cases it takes far longer to pick the jury than it does to put on evidence.

I am unaware of any empirical evidence that the quality of justice is better in Connecticut. Neither am I aware of any evidence that things are worse here, in terms of outcomes. Anecdotally, my experience suggests that individual voir dire makes no difference at all. I have tried scores of cases in the federal courts, where group voir dire is the norm; I discern no difference in the quality of juries.

Frankly, I favor group voir dire, so long as it is the lawyers, and not a judge, who is asking the questions. Individual voir dire requires that we place an ordinary person in the witness box and then question them, while they sit alone, being pondered by all the strangers in a courtroom. Most jurors are diffident and withdrawn in such a setting. Leaving jurors with their peers while questioning them gives skilled lawyers a chance to get group members talking to one another. My hunch is that potential jurors are more comfortable speaking to one another about common concerns than they are confessing while sitting alone on the stand.

Perhaps some good will come of the Hayes case. The world will get to watch ice melt in the courtroom and will perhaps wonder why we take months to do what could be done in a week. Individual sequestered voir dire promotes delay, is costly and is unnecessary to achieve the ends of justice or a fair trial. Months from now, when they are still picking the Hayes jury and the trees are once again in bloom, perhaps lawmakers will take note and change the law.