Hope For Hayes?
I am persuaded that a significant percentage of trials are won or lost based on how well lawyers manage jury notes. It is a difficult business, reading these particular tea leaves. A note can mislead. The question tonight is whether a note sent out late Friday by the jury in State v. Hayes represents real hope for a man looking death in the eye.
Late this afternoon, the jury sent a note rare in its level of detail. It suggests that the jury in this case is within two votes of never reaching the question of whether Mr. Hayes should be put to death at all. If this note reflects the jury's real votes, Mr. Hayes, and with him all who oppose the death penalty, is within striking distance of victory.
The jury has four sets of potential questions in this case. Does the jury unanimously agree or disagree that the defense has proven a so-called statutory mitigating factor? (These are reasons that the Legislature has stated are an effective bar to even considering whether to kill.) There are three such factors in this case, including the defendant's limited capacity and his inability to conform his conduct to the requirements of law. If all twelve jurors agree that at least one mitigant is proven, then the jury's deliberations end, and Hayes lives.
The jury's note reflects a situation in which all but two jurors agree that at least one mitigant has been proven. Eight of the twelve jurors found each mitigant proven. Only two jurors rejected each mitigant, voting no for each claim. On this ballot, there can be no verdict. If this is the vote, and the vote does not change, there must be a mistrial. All twelve jurors must agree that at least one statutory mitigant is proven, or all twelve must agree that no mitigant was proven. (Of thirty-six potential votes on mitigation, 27, or seventy percent of those case, found in favor of mitigation.)
Call the statutory mitigants first base in the state's pursuit of the homerun called death. If the defense can get twelve jurors to vote in favor of at least one mitigant each, the runner is out, and this bizarre game ends.
If all jurors reject a mitigant, the case then proceeds to whether the state has proven any of the aggravating factors, such as the crimes were committed in an especially heinous, cruel or depraved manner. Should the runner in this case round first base, it is virtually certain the state will score at least a double. The crimes were shocking.
Third base consists of the considering whether the defense has proven nonstatutory mitigants. These include such factors as the influence Hayes' co-defendant had over him the night of the crimes. If the jury finds one of these, it then must weight the nonstatutory mitigants against the aggravants to determine whether the state gets its morbid homerun, a lethal needle in the arm of Mr. Hayes.
The state's difficulty rounding first base is a hopeful sign for Mr. Hayes. All the effort and travail expended at this stage will no doubt influence the jury's decision of the second round of mitigating factors it considers at third base. Those of us who find the death penalty a species of barbarism can only hope that the case ends quickly, with the state called out at first base. But, if the jury summons the will to reject all of the statutory mitigants, there is still hope that lingering doubts will resurface in the final weighing process. The fact that the jury struggles here offers hope.
If all this seems bizarre to you, you will understand why a former Supreme Court Justice, William Brennan, once decided he would no longer vote in favor of upholding any death penalty. He did not want to "tinker with the machinery of death."
The jury returns at 9 a.m. tomorrow. I am hoping for a verdict that shocks the world, a quick decision finding a mitigant that will drive a stave into the heart of those favoring death. Many folks on the fence about the death penalty have commented of this case that if there is to be a death penalty, this is the sort of case for which it ought to be reserved. I assume that if the jury returns a quick verdict, and simply finds a statutory mitigant without even reaching the question of aggravating factors, at least some folks will conclude that death is never justice. If in this the worst of almost all possible cases the jury cannot agree, it suggests that there is no case in which death should be sought.
The Hayes jury stands poised to advance the argument of abolitionists nationwide. Rejecting death in this savage and horrendous case will conform to the evolving standards of decency that have led every other democratic society to reject a penalty barbaric both for what it does to the person executed, but for those imposing it.
I hope this jury has the courage to say no to death. They appear close to doing so, offering hope that the state's effort to kill in this case, and in future cases, will be be classified a strike out. It is dangeous business this contemplation of the meaning of a jury note. I hope I am reading it correctly.