Tommy Ullman has tried an almost perfect case. He's let the State stumble over its own evidentiary foundations. He opened his defense with admissions about what was not to be contested. He decided not to cross-examine the state's key, and very sympathetic witness. In the manner of State v. Hayes, he has been almost perfect. What, then, happened during closing argument?
Steven Hayes faces the death penalty for his role in a horrible triple homicide that claimed the lives of a mother and two daughters in Cheshire, Connecticut, in 2007. The case has attracted international attention in part because of its savagery, but, primarily because it is a crime that reached across socio-economic lines, bringing two drug-addled ex-cons into an upper-middle class bedroom community at random. The case makes real the nightmare we all fear: We are vulnerable, each of us, to the very worst that can be done.
Mr. Hayes and his co-defendant, Joshua Komisarjevsky, were captured fleeing from the family's burning house. Both men confessed. Mr. Hayes now stands trial in a bifurcated proceeding. The state must first prove that he committed a death-eligible offense. Once a guilty verdict is returned, a new trial with the same jury commences, this one the penalty phase in which a jury decides whether to kill Mr. Hayes or let him live behind bars for the rest of his life.
Under Connecticut law, a man facing the death penalty is required to fight for his life, whether he wants to do so or not. There is a presumption in our law that self-destruction is always irrational. Hence, no one can consent to their own destruction. In essence, our law boils down to the petulant proposition: "You can't commit suicide, we will kill you." In Mr. Hayes' case, jury selection was suspended when Mr. Hayes attempted suicide: the state intervened to save him so that it might have the privilege of killing him. Go figure.
Mr. Hayes did, however, offer to plead guilty to the death-eligible offenses. But that was on the condition that the state agree not to seek death. The state refused, so Mr. Hayes went to trial in the guilt phase. His lawyer, Mr. Ullman, told the jury in his opening statement that Mr. Hayes had, in effect, committed death-eligible offenses.
So why this farce of a guilt phase? In the parlance of criminal defense lawyers, Mr. Ullman wanted to defang the state's case. Let the jury hear the horrible nature of the offense and convict. It was, no doubt, hoped that the the guilt phase would serve the jurors' act hunger, that inchoate desire to strike out against evil. Guilty might suffice and take away the thrill of the kill.
Come the penalty phase, jurors are required to balance the aggravating factors of the crime against whatever mitigating factors the defense can muster. One of the aggravating factors is that these crimes were committed in an especially heinous, cruel and depraved manner, a simple matter, I suspect, to prove: All the state needs to do is remind jurors that Mr. Hayes bought ten dollars worth of gasoline to burn the family in its home. The defense, however, hopes the state will engage in overkill, presenting the guilty phase evidence all over again.
Therewith the gamble: Does the state risk offending the jury by another horror show? Or will it simply rely on the evidence previously presented? In either case, the defense benefits from the fact that horrible though the aggravating evidence is, its shock value will in part have worn off. The defense can then present whatever mitigating evidence it can in the context of a de-energized presentation of aggravating factors.
But this depends on not angering the jury during the defense case. One way to do that was suggested in Mr. Ullmann's opening. Accept responsibility for a night gone horribly wrong. Then argue that Mr. Hayes is not merely the sum of his worst moments. Let Mr. Hayes express his horror over what he has done.
Instead, during closing, Mr. Ullman argued that Mr. Hayes was led into a killing frenzy by his younger and somehow more culpable colleague, Mr. Komisarjevsky. The argument seems ridiculous. It makes no sense to compare the two men and ask which of the two is worse: Yet that is what Mr. Ullman has invited the jury to do.
Many years ago, Connecticut used to require a brief submitted on behalf of every defendant sentenced to death that compared the nature of the crime and the character of the defendant to every other person who faced a capital felony charge. I spent a solid year reading tens of thousands of transcript pages on the denizens of death row, trying to find a way to make my client look better than the other men sentenced to death. During the briefing, I realized that I was operating under a fallacy of sorts: If others were worse than my client, however such assessments could be made, then it was unfair that he be sentenced to death. The fallacy was that death was some sort of prize; that among those in the pool of death-eligible defendants, only a few could win that prize. The simple response to this fallacy is that all met the statutory requirements for execution. Connecticut never set aside a death sentence based on a proportionality review, and the requirement to submit such briefs has been abandoned in Connecticut.
In the Hayes case, the argument that he should be spared death because his co-defendant is a worse human being is a sure loser. It also undermines any claim that the defense could make that Mr. Hayes feels genuine remorse for what he has done. Shifting blame just isn't going to work here. Mr. Hayes can't claim some other dude did it after having admitted rape, murder and arson.
Mr. Ullman is a great and courageous attorney. It may be that he has some deeper endgame that is not yet apparent. But from the cheap seats, it looks like his closing argument was a blunder. I expect guilty verdicts on most counts early in the week. Then the real trial begins in this case: The jury will decide whether to join Mr. Hayes as people who have considered their options, and then decided that killing was the right response to a bad situation.