Lawyers seek permission to argue death penalty is too costly
At first, it looked like defense and prosecution lawyers were both trying to break new legal ground in the death penalty phase of Steven Hayes’ triple murder trial.
New Haven Chief Public Defender Thomas Ullmann has asked to present testimony that the death penalty is both too expensive and too drawn out – with some 15 years of appeals – to be worth imposing, and that life incarceration is cheaper.
Prosecutors Michael Dearington and Gary Nicholson considered requesting that sole survivor, Dr. William Petit Jr., be allowed to make his victim statement before the jury makes its life-or-death penalty decision. By statute, the victim’s impact statement is made to the judge, right before formal sentencing. Prosecutors and victim advocates have complained for years that this is too late to have any significant effect. With his filing, four minutes before the judge’s 1 p.m. deadline, Dearington decided against attempting to get the victim’s statement before the jury.
The penalty phase for Hayes, who was convicted last week, is set to begin Oct. 18. The jury will weigh whether there are more aggravating factors in favor of the death penalty than there are mitigating factors for life imprisonment without possibility of parole.
The state filed notice of 16 aggravating factors in Hayes’ six capital murder counts. All six were aggravated by the fact they were committed during a burglary, a crime which Hayes has previously been convicted of eight times. All six murder counts were aggravated by being “especially heinous, cruel or depraved,” the state claimed. The murders of Hayley and Michaela were aggravated by “grave risk of death to another.” That factor was not added to the murder of Jennifer Hawke-Petit.
Three top Connecticut criminal defense lawyers interviewed by the Law Tribune held out little hope that Superior Court Judge Jon Blue would grant any unusual defense or prosecution requests. And while expressing admiration for the skills of Ullmann and co-defender Patrick Culligan, they said the lawyers were left with no strong defense strategies.
“For the life of me, I don’t know what Ullmann can put on in the mitigation phase,” said attorney Hugh Keefe, of New Haven. He reeled off the typical arguments in such a case: “There usually is some evidence about the miserable, rotten abusive childhood that the defendant experienced. Drug and alcohol problems, mental problems, retardation, disadvantaged life – anything at all that would mitigate the aggravating factors.”
The July 2007 home invasion by Hayes and alleged accomplice Joshua Komisarjevsky began with Dr. William Petit, Jr. being severely beaten with a baseball bat, and his wife and daughters tied to beds for hours. Jennifer Hawke-Petit was raped and strangled by Hayes, the jury has found, and Michaela, 11, and Hayley, 17, died of smoke inhalation when the house was torched in a gasoline-fueled blaze.
Keefe commented that “the aggravating factors are so egregious, that one [phrase] ‘particularly heinous, cruel or depraved’ seems written for this case.”
Richard Brown, a top Hartford defense lawyer with Brown, Paindiris & Scott, also imagined being a judge in this case.
“As far as Dearington’s [initial] request to get the victim’s statement in earlier in the process, the judge has to be extremely careful to not cause prejudicial error at this stage in the proceedings and cause this matter to have to be retried, or the sentencing portion retried down the road,” said Brown.
Doing so “would obviously put the [Petit] family through more, unnecessary grief,” Brown added. The judge is “going to err on the side of the defendant at this point, to the extent he feels he legally can.”
Late last week, Ullmann and Culligan formally notified prosecutors of their intent to call an expert, James Austin, Ph.D., to testify that the cost of carrying out a death sentence far exceeds a sentence of life without parole. This would be a potential mitigating factor, and could counter the “popular assumption that the cost of executing someone saves the state money.”
They also said a Dr. Mark Cunningham, Ph.D., was prepared to testify about Hayes’ “prison adjustment, which will include conditions of confinement.” This would also be a potential mitigating factor, and would counter the popular assumption that a person convicted of violent offenses tends to be violent in prison.
In a counter motion, Dearington and Nicholson said the cost testimony should be excluded as “public policy for the legislature.” Blue is expected to rule by Oct. 12.
Brown said if he were the judge, he wouldn’t let Ullmann argue that the death penalty is too time-consuming or expensive, and would leave such policy questions to the state legislature.
“It’s nothing more than a disguise for arguing that the death penalty should not apply in Connecticut, which is inconsistent with the requirements of the law,” Brown said. “You have the various factors articulated in Section 53a-46a of the Connecticut General Statutes. Public policy is not one of the mitigating factors.”
Some testimony from mental health experts may be used in the penalty phase to help explain or rationalize Hayes’ actions. Shipman & Goodwin lawyer James W. Bergenn once co-authored an amicus brief on behalf of Connecticut psychologists contending that serial killer Michael Ross should have been afforded psychological testimony about his alleged affliction: sexual sadism.
“Twenty years ago, even among some intelligent people, it was OK to look at the whole field of psychology and pooh-pooh it,” said Bergenn. Critics didn’t realize “there is a lot of study and science behind it.”
That said, as Bergenn followed the Hayes trial, no psychological theme or other strong defense argument for mitigation stood out. “There’s nothing that’s emerged yet that I’ve seen publicly that suggests he’s had a particularly deprived background, or been abused, or is otherwise outside the realm of normal, that could explain the conduct that took place at that awful occasion,” said Bergenn.
Although Hayes’ defense lawyers are duty-bound to raise any mitigating factors, grasping at straws could cost them credibility, Bergenn said. “Whatever you present, there’s a substantial risk that you’ll just antagonize the jury…If the case is that weak, it’s just going to make people madder.”
Brown pointed out that the defense, in presenting mitigating factors to the jury, is not confined by the strict rules of evidence, and can present testimony that would otherwise be excluded as hearsay. Victims’ statements, made just prior to sentencing, also come in without being held to the standard of actual evidence.
Brown says that in his normal practice, “I see people come in every day, [saying] ‘My son’s a nice kid, I don’t know why he did it. He promises not to do it again.’ The judge will factor that in, perhaps, as to whether to send the kid to prison. That’s a statement not made under oath, not subject to cross-examination.”
Similarly, Brown says, at the pre-sentencing stage, “I may present a thousand letters why my guy is a nice person and shouldn’t be sent away for 20 years for child porno, or something. They’re not subject to cross-examination, they’re not notarized. These are all hearsay statements.”
But the rules are different for the prosecution.
“Anything that goes toward aggravating factors is going to be governed by the rules of evidence,” Brown noted. Thus, to allow Dr. Petit to make a victim’s statement to the jury, before it makes its life or death decision, would mix in testimony that doesn’t meet the higher evidentiary standard.
However, Dr. Petit will have the opportunity to formally testify about aggravating factors during the penalty phase – testimony that will be subject to cross-examination. “He might, for example, have information of how this crime was done in a particularly cruel or depraved manner,” said Brown. “He’d certainly get up and articulate under oath what he saw, or that he himself stood a chance of dying.”
None of the seasoned defense lawyers could see how Hayes will get life in prison.
The crime is “beyond the pale,” said Keefe. “This is a jury, all of whom have been found capital punishment qualified, which means they are not, unless they’re lying, philosophically opposed to the death penalty. If that’s the case, then this would seem to be – I’m not advocating it –one of those cases where it’s going to be the verdict.”
Bergenn said a standard defense tactic is to add up all the good deeds in the defendant’s life, in hopes of inspiring mercy on the part of the jury.
“But there was a lot of good in those [Petit women’s] lives, so if you start talking about the good in his life, and you risk antagonizing the jury,” Bergenn said. “On the other hand, you’ve got a job to do. If you don’t put in something mitigating, he’s going to die.” •
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