Why Steven Hayes Should Testify
The penalty phase of the prosecution of Steven Hayes has been nothing short of bizarre. The best defense thus far seems to be a twisted variant of "the devil made me do it." When the defense introduced the prison diaries of co-defendant Joshua Komisarjevsky as mitigating evidence, jaws dropped: Just how does Komisarjevsky's confession make Hayes look good? There is a danger that jurors will attribute the same sense of twisted glory Komisarjevsky boasted about to Hayes. There's only one way to set the record straight now about who Hayes is and why he engaged in the slaughter at the Petit home in the summer of 2007.
Steven Hayes should take the stand and testify.
In any criminal case the decision to testify belongs to the client and to the client alone. In other words, a lawyer's role is merely to advise on whether testifying is a good idea. A client can veto a lawyer and disregard the lawyer's counsel, taking the stand or not, as the case may be. While the lawyer gets to make strategic and tactical decisions, a lawyer's control of a case stops at the testimonial door his client may decide to open or leave closed.
Much though I love and respect Tommy Ullmann, the public defender leading the Hayes defense team, the defense has thus far been a failure. That's not Tommy's fault. The state's case is overwhelming. Hayes was caught fleeing the scene of the crime. No one doubted his involvement in the carnage. The only surprise was that Hayes was convicted of only sixteen of the seventeen crimes charged. That he was not convicted of arson is a result merely of an error by the prosecution: it failed to charge aiding and abetting arson. Hence, the fact that Hayes did not strike the match that set the home ablaze was a complete defense to the crime charged. This rare "not guilty" yields great confidence in the jury system. It would have been easy to just vote guilty on all counts. This jury is committed to the rule of law.
But what evidence has been introduced thus far to put into the context of a life worth redeeming the evil done by Hayes? Not much. Suggesting that Hayes was somehow seduced by, or in thralldom to, the much younger Komisarjevsky is, frankly, ridiculous. There was no compulsion to follow a charismatic Charles Manson-like figure. Hayes could have disengaged and walked away when he drove Ms. Petit to the bank to get money. He could have driven away before buying the gas used to set the house aflame. He could have walked away before the killing began. Hayes stayed not because he was hypnotized but as a result of a choice he made.
The defense seems to proceed on the theory that the death penalty is some sort of prize that can be claimed by one and only one winner: To the most evil man goes that purse. But painting Komisarjevsky in the blood-red colors of the Devil's cape doesn't do anything to mitigate Hayes's role. A man who sells his soul to the Devil can't claim the terms of the sale were somehow unfair. Hayes did not pray for deliverance from evil; he surrendered to it. Why?
This jury needs to hear from Steven Hayes before it decides whether to kill him. The defense has thus far shown little to make the man look redeemable. If it hopes to save Hayes, the defense needs to do something to show jurors that the same spark of life animating jurors also exists in Hayes. A jury needs to see beyond the isolated acts of a man on one night of his life; it needs to see this night in the context of a life it can comprehend. How was this evil possible? How to show Hayes as more than the sum of his worst moments? At a minimum, the jury needs to hear the voice of the man the state wants to kill. Can jurors muster the same impulse to kill to which Hayes surrendered?
Thus far the defense has failed, suggesting that there is little of redeeming value in the 47-year-old defendant's life. I know that his lawyer has spent the better part of the past year studying the case and looking for mitigating evidence about Hayes. The failure to present much of a defense and to rely on the devil made me do it as a defense suggests that Hayes's life has been a sad and dismal affair. Is this really all that can be said for him?
The only thing that will save Steven Hayes right now is Steven Hayes. Let him take the stand and tell the jurors what passed through his mind the night the Petit family was killed. Joshua Komisarjevsky has told us what he saw in words chilling and, in a terrifying way, insightful. We have nothing as to Hayes. He stares vacantly at cameras and in the courtroom. There is no spark of humanity to which jurors can warm. It is too easy to kill a caricature; require this jury to behold the man whose blood the state wants to spill.
It is no secret that New Haven State's Attorney Michael Dearington is lukewarm about the death penalty. He is seeking death in this case not out of a deep moral conviction that it is the right thing to do. Had he not sought death in this shocking case, others throughout the state could easily have claimed that the penalty is imposed and sought arbitrarily. Death is a duty, not a passion, for Dearington.
I say pit the man who doesn't really want to kill against Hayes. Let's see that cross-examination. If Hayes really wants to live, he can win this contest with a simple confession that he surrendered one night to the beast within. He can express remorse and sorrow. Dearington won't meet it with rage. He will meet it with the stifled scorn of a man playing a role he'd rather avoid.
But Hayes may not want to live. He may choose silence. Doing so would be the most effective suicide attempt the man has thus far made.
Tomorrow: Komisarjevsky And The Devil Within