Twelve New Killers?
Closing arguments in the case of State v. Hayes will be anticlimactic . The moral drama has been driven from the room. It was never disputed that Mr. Hayes behaved like a merciless savage in July 2007 when he helped destroy a family and drove a stave into the heart of the American dream. By God, the man claims to have raped a corpse. His depravity would challenge even Dante to find a rung deep enough in Hell.
The drama is gone because the jury deciding whether Mr. Hayes shall live or die is not a fair cross-section of the community. Only jurors prepared to join Mr. Hayes on the morally dark side of the great divide separating those who kill from those who will not kill were permitted to serve on the jury. Those opposed to the death penalty have been driven from the room. The practice of death-qualification has transformed the proceeding into a sanctified lynch mob, the most dangerous sort of mob there is. I cannot watch these proceedings without an ingrained sense of disgust: this is not justice. This is vengeance, and that, I once read, belongs to the Lord, or to the private fantasies of those undone by great grief.
I will be stunned if this jury fails to return a verdict of death. The defense has done nothing to show a man worth redeeming in the penalty phase of this trial. Yes, Mr. Hayes suffered as a child. He has struggled with addiction. He is impaired. But so are any number of people struggling through their days without the blood of children on their hands. The defense failed utterly to paint a portrait of a man I am in any sense motivated to want to save. I find myself thinking, if there is a death penalty, it is reserved for such as Steven Hayes. Were he to be executed, I would be left only with inveterate hatred of a penalty as barbarous as the crimes it seeks to punish.
But that is enough to stand wholly apart from the howling mob calling for this man's death. And so, at the end of this trial, I say no death for Mr. Hayes. To kill him is to join him and to yield something separating me from lesser animals. I do not call the ripping and tearing of flesh justice; poisoning a man to death may be permitted under law, but it still has the look and feel of murder to me.
Tommy Ullman will argue today to a jury predisposed to think that it is all right to kill another human being. Those revolted by the prospect, a significant minority of our population, were excluded from the case. So Tommy will stand in front of strangers whose every gesture he has now had two months to study. He will look into each pair of eyes and try to find a spark of recognition beneath the sullen glow of hatred that Mr. Hayes inspires. Tommy has to tell this jury that it is wrong to yield that small part of them that has as yet not feasted on the blood of another. He must tell them that to kill Mr. Hayes is to join the man in that isolated spot from which no one truly returns. The shedding of another's blood is a reviled act, and all the hooplah and polite digressions of Judge Jon C. Blue won't transform the silent pump pushing poison into a Mr. Hayes's arm as he lies restrained into anything other than a more stylized version of homicide.
Perhaps the greatest surprise in this case is the passion with which State's Attorney Michael Dearington has sought death. He is known to be indifferent, perhaps even opposed, to the penalty. When he has previously sought it, he did so dispassionately, almost perfunctorily. But in this case, he seemed to warm to the role of executioner. I suspect the jury has been persuaded by his silent fury. His attack in the penalty phase evidence has been lethal and effective. I worry now that when the case is over and he looks long into a mirror, he may not quite like the man who looks back at him. There will be a coldness to eyes that once reflected warmth. When next I shake the hand of this man I count as a friend, I will be aware of the great divide separating us: He is a killer now, or aspires to become one. He has not killed in my name. People like me were thrown off the jury.
"Battle not with monsters, lest ye become a monster," the German philosopher Friedrich Nietszche once warned, "and if you gaze into the abyss, the abyss gazes also into you." Today the state asks 12 ordinary jurors to jump headlong into the abyss, to become the very monster with which they do battle. I pity this jury, and I fear for them should passion lead them to think justice requires killing.
Good luck today, Tommy. I am proud of you. You have fought an impossible fight, and today must lay down your arms, and place your hope in the hands of men and women prepared to do what many of us consider the unthinkable. It is not right to kill in passion, in criminal rage or for any other reasons that led Mr. Hayes to plunder, to rape and to pillage. I know you are not arguing in favor of this man's right to behave as a beast. Somehow today you must persuade 12 jurors not to join Mr. Hayes. Your greatest rhetorical weapon today is not the law, not morals, not literature: Tommy today you must be fully human and challenge this jury to be more than the sum of the hatred and fear your client inspires in us all. I do not know if you can succeed, Tommy. I suspect you cannot. But I wish for your success not so much out of regard for Mr. Hayes, but out of regard for what we will become if we send 12 new killers back into the community.
Mr. Hayes is a lost soul. I say fight for the souls of those who can damn themselves into lonely years walking in Nietszche's abyss. Twelve new killers walking among us is an evil to be avoided.