A Killing Kind of Jury?

Evidence begins tomorrow in the penalty phase of State v. Hayes in Connecticut. The state seeks the death penalty. Mr. Hayes has already been convicted of sixteen counts ranging from capital felony murder to assault for his role in the deadly home invasion that left a mother and two daughters dead and one man, Dr. William Petit, Jr., seriously injured, in the summer of 2007.

What to expect in this next round?

A capital case is a two-part drama, proceeding, as lawyers say, in a bifurcated manner. In the first round, the state seeks to prove that the defendant committed a death-eligible offense. Jurors in the so-called guilt phase are instructed to behave as jurors always are instructed: don't consider the penalty, just consider whether the the defendant committed the acts charged. In the penalty phase alone do Connecticut jurors have any say in the punishment a man or woman is to receive.

The law, as Dickens noted long ago, is truly an ass. We lie to jurors all the time and call it justice. Is the defendant facing a five-year mandatory minimum sentence for an offense? We never let the jurors know this. Theirs is but to make a contextless decision about whether the offense occurred. Sentencing is the responsibility of the judge, whose discretion is limited by the legislature's specification of the range of punishment for a given offense.

Few pause to note the irony. Prosecutors intone about the need for a defendant to be held accountable for what he or she has done. That is the great theme taught in prosecutors' school, apparently. Yet no one in the courtroom is truly accountable for the state's reaction to a crime. The jury finds isolated facts. A judge accepts the verdict and pronounces a sentence specified in large part by lawmakers who never step foot in a courtroom. The sentencing of a criminal defendant is almost always done in a schizophrenic fashion, with responsibility spread among jurors, lawmakers and judge. The participants are like a firing squad, with responsibility diluted among the group because not all those firing shoot live rounds.

But it is different in a capital case. The law says a person facing death is entitled to the reasoned moral response of the jury. Just why we reserve such a response to capital cases is a matter of sheer hypocrisy. And we are dishonest about capital sentencing, too. We say that a defendant is entitled to a jury composed of a fair cross-section of the community, and then the court excludes from the jury all those members of the community who are opposed, on moral, philosophic or religious grounds, to the death penalty. The practice of picking a jury that can kill is known in the law as death-qualifying. Imagine an election in which all voters opposing a given candidate were prevented from voting. Can you hear the braying ass?

The jury in State v. Hayes has already sat through grisly testimony about horrible crimes. The state will rely on this evidence to argue the offenses were committed in an especially heinous, cruel and depraved manner. Who can argue that setting a family afire after raping and beating several family members is anything other?

The defense has a right to put on mitigating evidence, an unlimited sort of foray into the character of the defendant that will be the product of more than a year's concerted effort by mitigation specialists. Every public record regarding Mr. Hayes will have been read. Former classmates, teachers and friends will have been interviewed. The defendant will have been evaluated by psychologists and psychiatrists. His prison records will be scoured. It is the work of advocates looking desperately for something to explain both how Mr. Hayes can have behaved in such an inhumane manner and, having so behaved, how he is nonetheless more than the sum of his worst moments,

The jury is then instructed to sit at judgment's gate, and weigh the aggraviting and mitigating factors against one another. The direction in which their scale tips determines whether Mr. Hayes lives or dies. This is the work of gods not men. It is a repulsive spectacle to behold. We've marked out twelve ordinary folks and now ask them to become killers.

Last week, the trial court published a schedule of the trial to come. The schedule is brief. The jury is expected to get the case by November 1, two short weeks away. This more than anything else suggests to me that the case to redeem Mr. Hayes is thin. I had assumed the presentation of this man's life to the jurors would take at least a month: Evidence always is slow to take shape in a courtroom.

At a minimum, I expect the following evidence to be offered on Mr. Hayes' behalf: evidence of his genuine remorse as shown in his effort to take his own life during jury selection; evidence of a lifelong struggle with drug addiction that left him addled, desperate and groping; evidence of a character disorder, whether borderline or sociopathic; and, finally an appeal for mercy. Frankly, I expect all these arguments to fall flat. Mr. Hayes placed himself beyond recognition when he slaughtered a family. The only real question for members of the Hayes jury is whether they, too, want to step beyond the limits of what is easily recognizable as human and humane by becoming killers themselves.

We've had enough killing. I hope the jury spares the life of Mr. Hayes not because there is anything redeemable in him. I just don't want twelve more killers wandering the streets.

Also listed under: Cheshire Homicide


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