While most jurors stared dumbstruck at the evidence in the case of State v. Hayes, at least one could not take her eyes off one of the hunks keeping peace in the courtroom. Gosh, you know how it is: A man in uniform just melts some jurors' hearts: Even when the case is about the rape, murder and savagery at the quiet home of a family picked at random for death in Cheshire in the summer of 2007.
So a lust-struck juror did the only thing an attentive juror could do under the circumstances: She tried to get a note to the judicial marshal suggesting they get together for drinks during trial. Her destination of choice? The Side Street Grille in Hamden.
You just can't make this stuff up. When it comes to the Hayes trial, every day is an adventure. I hear courthouse wags are starting to call the jury room The Twilight Zone.
The defense moved to have the juror discharged from service on the theory that a juror whose idea of a verdict consists of "Me so horny, baby" just might not be paying enough attention to the evidence. Judge John C, Blue denied the defense motion, but not before commenting that the juror's conduct left plenty to be desired.
To say that jurors seem unmoved by the defense's mitigation case is an understatement. Last week, one juror was discharged after being heard to utter "this is bullshit" during presentation of evidence by a defense pyschiatrist. She was given a one-way ticket off the jury and is no doubt now sitting at home writing "kill him" over and over again while watching reruns of Jack Nicholson in The Shining.
Now we've got another juror trying to play goo-goo eyes with a marshal while Mr. Hayes' lawyers fight for his life.
The defense moved today for a mistrial based on the replacement of the juror last week. The argument is simple: The same jury is supposed to decide both the question of guilt and punishment. Because the same 12 jurors who decided the question of guilt cannot now decide the punishment, the defense reasons that a new penalty phase should be in order. (Althernates were sent home during deliberations during the guilt phase and then recalled to hear the penalty phase evidence.)
Judge Blue is expected to rule on Tuesday about whether to grant the defense motion for a mistrial based on the replacement of a juror. I predict he will not grant a mistrial, thus preserving a good issue for appeal.
Capital cases require jurors to consider punishment, a role not often reserved for jurors. Jurors are expected to make a reasoned moral response to the question of whether a defendant lives or dies. In the Hayes case, we simply do not know how the alternate who never cast a ballot during guilt phase deliberations would have voted. This juror did not participate in the deliberations; asking the juror now how he would have voted would be improper. Thus, a sentence of death in this case might not reflect the reasoned moral response of a unanimous jury. What if the alternate would have acquitted on one or more charges for which Mr. Hayes was convicted?
The logic of this position is unassailable even if bizarre conequences flow from it: It's the sort of conundrum for which Judge Blue, a man of strong and quirky intellect, lives. (UPDATE NOTE: On reflection, the logic is unassailably wrong. A jury could be composed of folks who did not deliberate as to death so long as all jurors on the penalty panel heard the same evidence. Since all jurors heard that in this case, there really should be no issue. Tempting though it would be to rule that the same jury must decide both guilt and punishment, that is not the law. Alas, for Mr. Hayes.)
The remedy would not be a new guilt-phase trial for Mr. Hayes. But it would mean a new penalty phase. And here's the real rub: In the penalty phase of the case now pending in New Haven, the state simply referred to the evidence the jury had already seen in the guilt phae: knowledge of that evidence was, as they say in the law, presumed. If there is to be a new penalty phase with new jurors, all that guilt-phase evidence would need to be presented all over again. A new penalty phase would require the presentation of all the evidence put on in the guilt phase. That's the only way a jury could weight the heinous character of the crime against the mitigating evidence offered by the defense.
If this seems like a colossal waste of time and resources, you are thinking like a judge. Judicial economy suggests striking now while the evidentiary iron is hot. Let this reconstituted penalty-phase jury make a decision. If Mr. Hayes is convicted, then let an appeal ensue. We can always retry the matter again in the years to come. It will take a decade or more to exhaust all of his appeals and post-conviction claims even if things go smoothly for the state.
The law says over and over again that defendants are entitled to fair trials, not perfect trials. The emerging pattern of juror misconduct in the Hayes case raises questions about this trial's fairness. But those questions are unlikely to derail the death train barreling down on Steven Hayes.
The defense rested today. Tomorrow the state gets to put on rebuttal evidence. If the state is superstitious it will move quickly to end this case. This jury is jinxed. Who knows what new melodrama tomorrow will bring.