EDITOR'S NOTE: Testimony in the trial of Steven Hayes, one of two men accused in the 2007 Cheshire home invasion murders, wrapped up last week. Because the basic facts about the testimony have been widely reported, we have given Senior Writer Thomas Scheffey, a licensed attorney, freedom to write about the case more as a commentator than as an objective reporter.
On one of the final days of his murder trial, Steven Hayes was ready to fold, literally. Everyone else in the courtroom dutifully stood at the judge's knock on his door, and the marshal's cry, "All rise!" But Hayes, stumbling to his chair, began hunkering down to his seat. Deftly, his lawyers pulled him to his feet.
Even if he's medicated, as some onlookers presume, Hayes is probably not fantasizing about an acquittal. Three hours after the July 23, 2007 triple murder, Hayes waived his rights and made a confession to state police. At trial, his defense lawyer made a "my-guy-did-it" opening, conceding substantial guilt.
Now, Hayes' one big goal is life without any possibility of parole. In the upcoming penalty phase, state prosecutors will seek the death penalty. Thanks to Connecticut's victim's rights provisions, Dr. William Petit Jr. will get to formally state why he thinks one of the men who killed his wife, Jennifer Hawke-Petit, and two daughters in their Cheshire home should also die.
But in the meantime, Hayes is getting extraordinary protection.
"They've never spent this much money protecting an inmate in the history of Connecticut," said Laurel O'Keefe, a victim rights advocate who sat next to me the second day of the trial, when Dr. Petit testified. "They've got men on the roof," she said. Sharpshooters, to cover Hayes during his transfer from the prison to the courtroom?
A Judicial Branch spokeswoman declined to discuss any specific security matters.
The final days of testimony in Hayes' trial lacked the same sort of drama as the first two weeks. But there were powerful moments and interesting plot twists all the same, all ending with strong closing arguments on Friday.
Last Tuesday, on the state's last day of testimony, State Fire Marshal Paul Makuc had a bland, dispassionate tone as he chronicled his methodical exploration of the ruins of the Petit home in the wake of a fire reportedly set by Hayes and co-defendant Joshua Komisarjevsky.
The fire evidence is important, because the two Petit children - Michaela, 11, and Hayley, 17 - died of smoke inhalation after being bound in their bedrooms.
Makuc is tall and slim, with a long face and short brown hair. Even in a gray business suit, he had a military bearing and demeanor.
Working from the areas of least damage first, he homed in on the "pour pattern" of the flammable liquid apparently used by the defendants. The diagram he projected on a courtroom movie screen showed a concentration of liquid around Jennifer Hawke-Petit's body, partly supported by an ottoman in the den. The fluid pattern went up the stairs and into the two bedrooms of Michaela and Hayley.
Makuc's most dramatic testimony had nothing to do with audio-visual tools. In a storytelling rendition as timeless as Homer, Makuc traced the fire's "behavior" as it proceeded through the house like some angry, living creature.It snaked along the floor, and ate through the carpet and padding, deeply charring the wooden treads and risers of the staircase.
"As the smoke and hot gasses chimneyed up the stairs," Makuc said, "what the fire began to lack was oxygen-there was no oxygen left on the second floor, for either life or for the fire."
Makuc's final statement hung in the air: "I have concluded that the fire was caused by introduction of an ignition source by human hands - an open flame consistent with a match."
In cross-examination, Public Defender Thomas Ullmann asked Makuc to confirm four different firefighter's reports of heavy smoke. He was emphasizing that the victims died of smoke inhalation, and weren't burned alive. The defense has the difficult task of arguing the deaths were not "especially heinous" or cruel - aggravating factors in death penalty cases.
"The bed posts were not burned?" Ullmann asked.
Makuc conceded they were not.
On the morning of the killings, Hayes was apparently caught on videotape buying gasoline at a Citgo station. Ullmann implied that co-defendant Joshua Komisarjevsky might have spread the gas around the house. "Does your science tell you who poured the gasoline?" he asked Makuc. The fire marshal acknowledged it did not.
Later Tuesday, Assistant State's Attorney Gary Nicholson recalled Meriden crime lab technician John Brunetti to the witness stand. Brunetti had earlier matched the Petit's champagne-colored SUV to photos at the gas station.
Now Brunetti was being asked to identify the digital photo images from the cell phone used by Joshua Komisarjevsky. Two were of Komisarjevsky, Brunetti established. The other six were of a "young white female."
New Haven Superior Court Judge Jon Blue interrupted with a one-minute sidebar, then announced: "Proceed."
Brunetti, as delicately as he could, established that the photos were of Michaela, who had been raped, according to prosecutors. Nicholson asked him to rank the sexual development of the subject on the Tanner Scale, which measures human development before, during and after puberty.
After describing what he saw, Brunetti was excused. As he left the witness stand, he looked directly at Dr. Petit, who was seated in the first "pew" near the low swinging door in the bar of the court.
"Sorry," Brunetti murmered, as if it came from the bottom of his heart. Dr. Petit graciously nodded, scientist to scientist.
The state's second-to-last witness was Meriden crime lab scientist Jack Hubball. Originally a botanist, the man with the small blunt goatee once worked at the Connecticut Agriculture Experiment station. That led to his current job analyzing organic compounds.
For this case, he testified, piece by piece, that the clothing worn by Komisarjevsky, Hayes and the two Petit girls tested positive for a petroleum product consistent with a gasoline." He explained: "`Consistent' is our strongest word. Basically it equals gasoline."
The state's final witness was Jeremiah Krob, a Department of Correction disciplinary investigator at Northern Correctional Institution. He testified he was stationed in front of Cell 223, when Hayes, awaiting trial, was on suicide watch. Krob said inmates sometimes used a cardboard toilet paper roll to help them talk to an inmate in a neighboring cell, either through a sink drain or air vents.
On July 28, 2008, Krob said he heard Hayes tell inmate Vernon Cowan that he didn't believe he could be charged with arson. Even though he poured gasoline on the stairs of the Petit home, "he had not lit the match," Krob said he heard.
According to Krob, Hayes also said that "they're going to find fecal matter on [Komisarjevsky's] penis because he sodomized the younger Petit girl." Additionally, Hayes told his fellow inmate that Komisarjevsky took pictures "and was trying to e-mail them through his cell phone to his friends."
More than most witnesses, Krob was difficult to understand on the witness stand, and Judge Blue had to urge him to keep his voice up so the jury could hear.
Krob testified he overheard Hayes saying that he saw police cars arriving at the Petit house, "and that at that time he had killed Mrs. Petit." Hayes denied having sexual relations with anyone in the Petit family, Krob said.
In perhaps the most outlandish speculation in this horrific case, Hayes told the other inmate that Dr. Petit may have been "in on" the crime spree for an insurance payoff. What was Hayes' theory? According to Krob, Hayes said he had tied up Dr. Petit "really good" in the basement of the family home, and that Komisarjevsky must have loosened up the knots, allowing Dr. Petit to escape.
On cross-examination, public defender Patrick Culligan quizzed Krob about the brevity of his report on the prison conversation, compared to the lengthy statement he provided state police and Cheshire detectives later.
Krob acknowledged he had the ability to switch on a video recorder with an audio track so he could monitor Hayes' cell, but did not do so. On re-direct, Krob was asked whether he needed authorization to turn on audio-video taping. Krob said no. The only reason Krob gave for not using the taping equipment was that he didn't know if there was a tape ready to go.
With that, the state rested, on its eighth day, at 4:04 p.m.
The defense case took less than an hour.
James Nemphos, the Cheshire police department training officer, testified about his arrival at the Petit house. After staking out the home for 15 minutes, he was shocked and surprised to see the house was on fire. He got an assault rifle from Officer Thomas Wright, and the two men entered the rear sunroom, only to find it thick with smoke. Crouching down below the smoke, Nemphos said he called out in a loud voice, "Cheshire police! Is there anyone here?"
He heard no sound of survivors. The officers, driven back by heat and flames, ran to the front of the house, but were unable to enter from that direction.
The final witness for the defense was young investigator Michael Cardine, who said he had driven from the Petit's home to the Southington Citgo station, where Hayes is alleged to have purchased gasoline. One way, the trip took 19.38 minutes, and was 8.5 miles, he testified. In a final bit of evidence, Public defender Ullmann read a statement from Diana Hayes, the defendant's mother, saying that on the night in question, Hayes left at 6 p.m. to "meet a girl he'd met." With that, the defense rested.
When New Haven Superior Court Judge Roland Fasano issued a gag order in
April directing lawyers in the case not to make "extrajudicial statements," he was aiming to promote fair trials. The same Sixth Amendment is a basis for defense lawyers taking their work seriously. It was part of the impetus, no doubt, behind Jeremiah Donovan's decision to give an impromptu press conference outside the courthouse.
He asserted that his client, Komisarjevsky, who is scheduled to go on trial next spring, did not anally rape Michaela Petit, as some crime lab testimony had suggested. Fasano promptly issued a criminal contempt show cause order, directing Donovan to appear Oct. 6 to defend on charges punishable by as much as six months in jail. Later in the week, the hearing was pushed back to Oct. 19.
"I'm surprised [Donovan] waited as long as he did to speak up," said New Haven criminal defense lawyer John R. Williams. In 1977, Williams defended Lorne Acquin, who was accused of killing nine people in a Prospect home in what Williams describes as "the worst mass murder in Connecticut history."
The fact that Dr. Petit has been able to make public statements should be taken into account, and should be grounds for the court to relax its gag strictures on Donovan, Williams said.
In the Acquin trial, public sentiment was high against his client, yet Williams addressed the press daily. "Nobody said anything about it." Also, when defending Black Panther clients, Williams said public advocacy was one of the few tools available to help him level the field.
Tweets And TV Trucks
It was inescapable, to anyone following the Hayes trial, that we live in a digital age.
In front of the courthouse, eight TV trucks, plus a giant Court TV land yacht, have been sent by news organizations that sense the public's thirst for information.
A software program called "Trial Director V" put the photo exhibits at the lawyers' fingertips. There were vivid Google Earth photo maps of Cheshire. Specific details were quickly framed with a mouse click and blown up full screen.
Also inside the courtroom, Hartford Courant columnist Helen UbiÑas issues regular tweets to readers. Some readers complain she's opinionated, or that the trial is sensational, but most followers of "Notes from Hel" praise her efforts.
Then there is all the reader commentary on newspaper Web sites. Many a man on the street is perplexed and angered by the Cheshire case. A common response is to wish torture and retribution on the perpetrators - of equal or worse suffering. But there are also thoughtful gems to be found.
One anonymous commenter on the New Haven Register site seemed to understand why a trial was necessary even when the defendant seemed to have admitted guilt: "If you're going to have a trial, you have to put on evidence, because a jury can only render a judgment based on evidence presented in court, not what they may read in the paper or hear on TV.
"As frustrating as it may be, the law has to apply ALL the time, not just some of the time. If it doesn't protect the rights of the guilty, it won't protect the rights of the innocent, either."
On Friday, the lawyers for both sides offered their parting shots.
New Haven State's Attorney Michael Dearington went first. His theme is that Hayes and Komisarjevsky are equally responsible for the crimes, despite the defense assertion that Komisarjevsky was the ring leader.
Dearington recounted the chilling, yet familiar, facts of the case.
The intruders had come upon Jennifer Hawke-Petit and her daughter, Michaela, sleeping in an upstairs bedroom before tying them up. "It's important what happened here," Dearington told the jury. "Common sense, it was two people. One to tie up Mrs. Petit. One to tie up Michaela."
Then, Dearington said, the men went to Hayley's room and tied her up. The crime was "a joint venture," he said.
Then Dearington dissected who was responsible for setting the house on fire, noting that Hayes was the last to leave the house. "Common sense indicates that the last one out was the one to light the fire," Dearington said.
After the incident, Hayes had told police that "things got out of control." But Dearington said to the jury, "It wasn't things. It was them acting together doing everything you know that they did."
But in his closing, Public Defender Ullmann said it was Komisarjevsky's "unilateral decision" to escalate the violence at the house. "The original plan was to break into the house, tie up people, steal money, steal jewelry and leave," Ullmann told the jury.
But Komisarjevsky changed that plan, Ullmann said, when he sexually assaulted one of the girls while Hayes was at the gas station and then the bank. Hayes "doesn't know that changes [to the plan] are being made," Ullmann said. "He doesn't know it's really bad."
Ullmann added, "The sociopath, the psychopath, is Joshua Komisarjevsky. Steven Hayes is not the one who controlled the escalation" of violence.
On Monday, Judge Blue will charge the jury. His instructions, he said, take up 46 single-spaced pages.