The only surprise in yesterday's verdict in the Steven Hayes case is that the jury managed to acquit the man of one of the seventeen charges pending against him, the charge of arson. Guilt was a forgone conclusion and all but admitted as to the entirety of the state's case during opening statements. This first phase of the death-penalty prosecution was a formality, a warm-up for the main event: On October 18, the real trial begins. That is when the same jury that found Mr. Hayes guilty decides whether he should live or die.
Sentiment in Connecticut is red hot in favor of killing Mr. Hayes. A poll on The Hartofrd Courant's online edition asked this morning whether Hayes should live or die. Within hours, nearly six thousand people had responded: 93 percent of respondents want him dead; five percent oppose death; two percent are undecided. One hopes that the jurors were selected from among the same cohort as the rare undecided poll respondents.
The penalty phase of a capital trial is unlike a trial in which guilt is decided. In this second phase of the trial, the jury must weigh the aggravated nature of the offense against any mitigating factors it may find. Mr. Hayes' life will be examined with a forensic scrutiny worthy of St. Peter at judgment day. Can the defense find enough that is good in Mr. Hayes' life to outweigh the evil that he has done?
Jurors are supposed to make decisions of this sort in a calm, dispassionate manner. We urge them to put aside passion and prejudice insofar as it is possible to do so. In case as shocking as the rape, murder and pillage at the Petit household in Cheshire in 2007, that will be hard for a jury to do. In fact, it will be impossible. That is because the law permits the state to make a direct appeal to passion: the state can seek to prove as an aggravating factor that the murders were of an especially heinous and cruel sort. The state can prove that with ease.
But how will the state attempt to prove this? Frankly, this is the only tactical decision the state can make that truly matters in this case, given the overwhelming character of the proof against Mr. Hayes.
The defense is gambling on, no pun intended, overkill. The jury has now heard all, or almost all, of the shocking details of the home invasion. Gory details have been broadcast throughout the state. Something like moral exhaustion and emptiness now replaces shock. I doubt seriously that jurors will welcome another trip down this gory lane. Less is more at this stage of the proceedings: this is no time for voyuerism.
But the prosecution in this case has not shown great leaps of imagination or tactical acumen. One juror walked off the panel early in the guilt phase complaining about a spiritless and unfocused prosecution. Jurors at times seem confused, asking questions about loose ends that should never have been left dangling. The spirit of the prosecution in this case seemed to be one of weary resignation: the state stuck to its playbook and grand narrative strategy even when the terrain changed before its very eyes. But no matter in the guilt phase, where there was little to dispute. Tactical flexibility was not required in a case a law student could have tried.
The terrain is now contested as the trial moves to the penalty phase. The defense has succeeded in bleeding the state's case of its raw emotion. Jurors know now what happened. The defense challenge, and it is a steep one, will be to explain how these atrocities could occur. At the end of the case, the defense must persuade the jury that Mr. Hayes is more than the sum of several horrifying hours.
Now more than ever the climate of the courtroom matters. So does publicity. While there is a gag order in place barring the defense from speaking to the press, the surviving victim and his family still have unfettered access to the press. It is time to require that all parties be silent, or that none be barred from making their appeal to the public. There is little justification for permitting the victims' representatives in this case, who have rights under the state constitution, to avoid the responsibility to assure that there is a fair trial, unaffected by public hysteria and anger.
It is also time to insist on courtroom decorum: reporters should be barred from Tweeting during trial. I've read several Twitter streams: The press studies every gesture of Dr. William Petit, the surviving victim. This near-worshipful attitude by the throngs of reporters observing the trial is a sort of sociometric tidal wave that cannot help but influence a jury.
The first stage of this trial was little more than prime-time melodrama: There was little doubt about the outcome. Now life hangs in the balance and the outcome is far from certain. The real trial now begins.