Weeks ago jurors in Courtroom 6A on Church Street were wiping their eyes and turning in horror from bloody photographs.
Wednesday, three of the jurors whispered and chuckled in the front row.
Judge Jon C. Blue watched for a moment and then said, “The teacher in me says perhaps you have something to share with the entire class?”
Blue gently admonished the three jurors as defense attorneys struggled to present any mitigating evidence that might save their client’s life — and before they lose the attention of the class completely.
The scene was part two of the trial of Steven J. Hayes in the Cheshire triple murder case.
The jury convicted Hayes on Oct. 5 of murdering Jennifer, Hayley, and Michaela Petit. The jurors sat riveted during the guilt phase of the trial, where gruesome testimony and graphic photos dominated the proceedings.
Now comes the sentencing phase, where the jurors decide another momentous question: Should Hayes be put to death?
Unlike in the first phase of the trial, the testimony has been dry and subdued. The visuals largely consist of charts and graphs and fill-in-the-box forms.
In addition to eliciting testimony as to Hayes’ character, background, and history that may reduce his culpability for the crimes, his attorneys, Patrick Culligan and Thomas Ullmann, are allowed to present evidence that might tend “to otherwise constitute a basis for a sentence less than death.”
It is this somewhat vague element of the sentencing statute that Culligan and Ullmann were likely focusing on when they hired Dr. Mark D. Cunningham, a forensic psychologist from Plano, Texas, who specializes in violence risk assessment of capital offenders in prison.
The challenge this week appeared to be keeping the jury focused on Cunningham’s resulting analysis and testimony.
Cunningham testified for two days as to whether Hayes would likely engage in serious violent behavior if sentenced to life imprisonment without parole. Four primary factors — Hayes’ age; his lack of serious violent behavior in more than 25 years of prison confinement; a low risk appraisal by corrections officials in prior custody; and earning a GED — led Cunningham to conclude that Hayes “is likely to have a positive adjustment to a life term … without seriously injuring another inmate or staff.”
To bolster Cunningham’s conclusion, Frederick Levesque, a former Department of Corrections director, testified that Hayes never assaulted a correctional officer and was ranked “lowest possible level of violence history.”
Hayes’ former parole officer, John Viscomi, testified that Hayes successfully met with him a half-dozen times after his release from prison in May 2007, held down two jobs, and was living with his mother and brother.
The defense hopes the report and testimony will constitute a mitigating factor for the jury to consider when determining Hayes’ sentence.
But the study does beg the question of whether the jurors care about Hayes’ positive adjustment to lifelong incarceration.
To further confuse the issue, during cross-examination, prosecutor Gary Nicholson provided a report which documented a threat Hayes made to kill a corrections officer as recently as March 2010, as well as a prior conviction while in prison of creating a public disturbance. In that latter incident he told an officer “I am going to rip your heart out and shove it down your … throat.”
Hayes also failed to show up for two substance abuse evaluations weeks before he and Joshua Komisarjevsky invaded the Petit home on July 23, 2007. He was supposed to meet with parole officer Viscomi on July 23rd, but for obvious reasons missed the appointment.
Throughout all of this testimony, jurors fidgeted and yawned. They rubbed their eyes and repetitively flipped through their notebooks. Two jurors seemed to be sharing a private joke about one of the attorneys, and one juror even appeared to fall asleep for a short while. Several wore baffled expressions at certain points of the testimony, furrowing their brows and staring quizzically at reports they were given to review.
While it is impossible to know what each juror was thinking during Cunningham’s testimony, the body language on display conveyed a vivid sense of jurors who were less engaged and more distracted than at any other time during the Hayes trial. With only a few days left, the defense team must move quickly to recapture the jury’s attention, if they want to convince jurors that Hayes should live and not die.
Previous installments of the Petit Trial Court Diary:
• Day One: Deceptive Calm
• Day Two: It Was All About “The Girls”
• Day Three: Defense Strategy Emerges: Spread The Blame
• Day Four: Pieces Fall Into Place
• Day Five: Numbers Tell A Story
• Day Six: Suffering Takes Center Stage
• Day Seven: A Gagged Order
• Day Eight: A Quilt & A Puppet Theater Bring Home The Horror
• Day Nine: It’s About Specific Intent
• Day Ten: The Notes Told The Tale
• Day 11: To Save A Life, Lawyers Must Humanize Alleged Monster
• Days Twelve & Thirteen: A Life, In Context
Unfortunately nothing is going to save Mr. Hayes' life. I do not think our society is ready to move away from the death penalty.