Today, Todd Bussert, Donovan’s young, hard-charging cocounsel, has the idea that Donovan should talk to the reporters. While their client, Komisarjevsky, sits in a six-by-nine-foot cell at Northern Correctional, a maximum-security prison, Hayes’s lawyers are making Komisarjevsky out to be the worse of the two. Donovan expected this. What he was less certain of was that Hayes’s lawyers would introduce evidence suggesting that Komisarjevsky had raped Michaela in her bed. That Komisarjevsky had, in fact, sodomized her.
Since he first met Komisarjevsky a few days after the crimes were committed in 2007—more than three years ago now—Donovan has taken him at his word. Not as a matter of habit—Donovan has had plenty of clients whose word wasn’t worth a bag of spit. But Komisarjevsky confessed to so much: beating the father, tying the girls to their beds, stealing money. He even said that he performed oral sex on Michaela and ejaculated on her. Heinous and cruel acts, Donovan concedes, but different from rape. And the fact that Komisarjevsky was so clear in his confession that he didn’t rape the girl—well, Donovan believes him.
In the courtroom, the state medical examiner is testifying about Michaela’s autopsy. Bussert is following the courtroom Twitter stream—mostly tweets being posted by reporters sitting only a few feet from Donovan. He tells Donovan that everyone is writing about the medical examiner’s testimony that Komisarjevsky raped the girl.
Maybe you should say something, Bussert suggests. To clear things up.
Donovan agrees, but it’s going to be tricky. All the lawyers involved with both cases are under a gag order by the punctilious Judge Blue. But Donovan just can’t let this pass, because if he does it will get repeated to the point where it’s accepted as fact. Picking a jury for Komisarjevsky’s trial is going to be difficult enough without his client getting branded as a child rapist on top of everything else. So, shortly before the 1:00 p.m. lunch recess, he and Bussert ride the elevator down to the street to make a statement.
Outside, it’s balmy for late September in Connecticut, well into the 70s and humid. The TV reporters in the sixth-floor courtroom have apparently called down to their camera trucks outside to let them know Donovan is coming down and plans to speak, and a cluster of microphones has been assembled. The automatic door slides open and Donovan’s lanky frame descends the concrete steps to the sidewalk. He walks up to the mikes, winces out a quick, awkward smile, and says softly in his weatherbeaten Boston accent, “Are we ready?” And then he says, “I’ve been concerned because in watching televised interviews with the Petit family, I realized that they’re under the misimpression that on the night she died, the younger Petit daughter was anally raped. When Joshua Komisarjevsky was arrested, he gave a very detailed description of what had happened that night, and in that statement, he explained what happened. It’s been supported by the three expert witnesses—the DNA expert, the chemist, and the chief medical examiner—and I’ve explained how that was done. And it’ll be a long time between now and the Komisarjevsky trial, and I just don’t want the Petit family to believe that on the morning that she died, their second daughter was the subject of an anal rape, because that just is not what happened. I know this is probably small solace, but it’s just something that I felt I had to say.”
—
There is a kind of awful banality to the way a murder trial has to be run. There are procedures, of course. And legal phrasings are exchanged constantly—motions filed, exhibits entered into evidence. There is a lot of waiting. It can feel strangely clinical sometimes, but for Bill, every procedure that’s followed, every witness who is called to the stand, questioned, cross-examined, and finally dismissed brings the trial that much closer to the blessed moment when it will be over, when they will stop having to pound these facts into his head hour after hour. He sits every day in the first seat of the first row, saying nothing, showing nothing, doing nothing. Just waiting, watching the court reporter tap out the millions of words being spoken by these lawyers and the witnesses and the judge, praying for the day when the spool of white paper ceases rolling out of her machine.
Because of this, any disruption to the regimented course of events is like a punch in the chest. That incident with Mr. Lively, the juror who complained about the prosecutors—something like that can derail the whole operation, wasting months of preparation, jury selection, and all the rest of it. Or the stunt Donovan pulled on the courthouse steps, that sickening stunt. When these unexpected things happen, you fear the worst: mistrial. A mistrial would be a disaster.
And so when Tom Ullmann, Steven Hayes’s lawyer, walks into court one morning and announces to Judge Blue that his client experienced some kind of a fit in his prison cell the previous evening and urinated all over himself, you can feel the courtroom tighten. Oh, God, what’s this now. “It seems to me like there were seizurelike symptoms,” Ullmann says. “I don’t believe he had any sleep last night. We’re ready to proceed with the next witness, but I will alert the court if I don’t think we can proceed any further.” Bill listens to this intently. Judge Blue hides any feelings he may have about the defendant’s having urinated all over himself the night before, assuring Ullmann that the court will make every allowance for Mr. Hayes’s health.
A week later, Judge Blue himself gets sick and the trial is postponed for two days. Another scare, something the defense could pounce on.
It is autumn now. Through the huge plate-glass window in the sixth-floor hallway outside Courtroom 6A, the shadows across the Yale University campus, all brick buildings and oak trees and church spires, stretch farther than they do in midsummer, and the leaves are turning from green to crimson and gold. The trial is in its third week, and the hard wood benches in the courtroom aren’t getting any more comfortable. One Tuesday, Bill Sr. brings a folding nylon camping chair to sit on, which makes it a little easier for his aging frame to stand the discomfort for six hours. Big Bill has closed his eyes a few times during the trial, the fatigue getting the best of him during slow moments. Bill worries about the jury seeing this.
When Hayes walks into the courtroom that morning, as he does each day just before things get going at 10:00, he shuffles his feet. His eyes are red. His clothes look new and baggy, as usual, and he is not permitted to wear a belt. He hasn’t shaved today, which is unusual for the trial so far. He looks like hell. He shakes hands with Culligan and slumps into his chair.
You can smell the gasoline in the courtroom. A forensics detective is on the stand today, and the state is introducing evidence that has been stored in metal canisters since it was analyzed after the murders. A piece of the T-shirt Hayley had worn to bed Sunday night, July 22. A scrap of denim from the jeans Jennifer put on to go to the bank. Michaela’s torn shorts. You can still smell the gas, thirty-eight months later.
On the projection screen, the state shows a photograph of the scorched kitchen. It barely looks like a room. But if you look closely, there, in the sink, appears to be the pasta pot Michaela used when she was cooking Sunday dinner. The teakettle sits on the stove, where it always was. A cupboard door hangs off its melted hinges, and a shelf has fallen cockeyed.
The state shows more photographs—ghostly stills floating in the dimmed chamber, each one broadcast for minutes on end, a slow torture for Bill. While the photos remain on the screen, the lawyers and the witnesses speak of them in the context of his family, repeating their names a hundred times a day—Jennifer. Hayley. Michaela. Jennifer. Hayley. Michaela. Jennifer. Hayley. Michaela. Jennifer. Hayley. Michaela. Over and over, each mention of their names like a knifepoint into Bill’s skin.
Next: a photograph of the charred living room, the furniture arranged just as Jen liked it, with the oriental rug she had finally bought unrecognizable beneath the wreckage. Now, in the photograph, it’s a black scab on the floor. Bill looks up at the photograph, turns his head away. You can see a dark cloak in the middle of the room: the place where Jennifer’s body lay. She’d had to be identified by her dental records. There is a macabre routineness to all of this,
as if Bill were being forced to watch some twisted fire-safety video featuring pictures of his own home.
Another man from forensics takes the stand, this one short and nervous, with a bureaucratic mustache. He testifies that he recovered text messages from Hayes’s and Komisarjevsky’s cell phones, a thumbed-out conversation between the two men early on the evening of Sunday, July 22, 2007, the night they would break into Bill’s house. The images of the texts are displayed in court:
“I’m chomping at the bit to get started. Need a margarita soon,” Hayes wrote.
An hour passed after Hayes sent his text, and he didn’t hear back from Komisarjevsky. At 8:45, he typed: “We still on?”
The response, two minutes later: “Yes.”
“Soon?” Hayes wrote back.
“I’m putting kid to bed hold your horses,” came the response. Komisarjevsky was father to a five-year-old daughter, a little girl he was apparently tucking in for the night.
A half hour later, Hayes got antsy again and texted, “Dude the horses want 2 get loose! lol.”
There were photographs, too, on one of the phones, the man testifies. The photos aren’t shown in court, but he is asked to describe them. The pictures depict a young girl tied to a bed, he says, without clothes on, and a man’s genitals.
On his way out of the courtroom, the man from forensics has to walk right past Bill.
“I’m sorry,” he whispers.
At almost eleven o’clock that night, Bill sits in his room upstairs in his parents’ house and composes an e-mail, which he sends to legislators in the Connecticut assembly. In it he urges them to consider a law like Chelsea’s Law in California, which gives automatic life sentences for sexually assaulting a minor on the first offense. “It would be the moral and ethical thing to do,” he writes. “Special exemptions can be carved out for extenuating circumstances (hard to think of many).”
—
In Connecticut, murder trials have two parts: the guilt phase and the penalty phase. In the guilt phase, the prosecutors go first. They must try to prove that the defendant is guilty beyond reasonable doubt. They must establish that the defendant committed the crime with which he is charged. When it’s their turn, the defense tries to establish reasonable doubt—even a remote possibility that the defendant could be innocent. The jury’s decision—guilty or not guilty—must be unanimous. If even one member of the jury has doubts about the defendant’s guilt and refuses to vote guilty, the trial is over. There is no penalty phase.
If the jury is unanimous in finding the defendant guilty of at least one capital crime, the penalty phase comes next. This is the defense’s show. The defendant’s lawyers try to demonstrate that while the defendant may indeed be guilty, there were mitigating factors that explain why he might have committed the crime, and because of those mitigating factors, the defendant should not be put to death but should instead be given some lesser punishment, usually life in prison without the possibility of parole. Mitigating factors could include things like mental illness or a troubled childhood.
At the end of the guilt phase of State of Connecticut v. Steven Hayes, the jury is sent into its deliberation room, adjacent to the courtroom itself, at 11:30 on a Monday morning. The clerk, a calm and efficient young woman, is charged with bringing into the jury room all the exhibits that were entered into evidence during the trial—photographs, posters of aerial photographs showing Bill’s old neighborhood, the blood-blackened baseball bat Joshua Komisarjevsky used to beat Bill’s head, which was found leaning against Michaela’s bed. Long minutes pass as she checks the neat assembly against the official list, like a warehouse manager readying a truck on the loading dock—everything is numbered and cataloged and accounted for. At one point the clerk drops one of the many metal canisters that hold bits of physical evidence collected from Bill’s old house. The can clangs loudly to the floor of the room like a cymbal crash, and the top pops off. Everyone looks. Inside could be any number of terrible things—a shred of Jennifer’s burned jeans, or Hayley’s gas-stained shorts, or a swatch of the melted hallway carpet, now reduced to a grotesque curio in a canister in a courtroom in New Haven.
Almost the moment the door closes behind the jury, Judge Blue disappears into his chambers, and Courtroom 6A quite suddenly feels rudderless. After weeks of stilted, official behavior, an unfamiliar mood settles over the room. A few people look around as if wondering, Is it okay to talk now? Can I go to the bathroom? It is, and yes. Because now it’s just waiting.
Bill stands as if rising during intermission, jiggles some change in his pocket, and whispers something to Hanna. A few people stretch. The reporters all pull out their smartphones in unison, clicking and scrolling. There is a quiet rush on the three electrical outlets around the perimeter of the seating area as people charge their phones and laptops. The marshals remind people to keep the noise down.
When Bill and his family walk out of court at the end of the day, the jury hasn’t yet reached a verdict. There are seventeen charges against Hayes, six of them capital felonies, so the twelve civilians have a stack of legal paperwork before them and a procedure to follow. It was never going to be a five-minute decision, Bill knows that. Is it just the red tape that’s keeping them in there?
Out on Church Street, the news-truck guys have arranged a bouquet of microphones at the bottom of the courtroom steps, as they often do on the days the press hopes Bill will make a statement. He walks by without stopping. “No thanks, not today,” he says. “Appreciate it.” The cameras follow him across the street anyway, all the way to his car.
The next morning, back in Courtroom 6A, Bill flips through a magazine, barely looking at what’s on the pages. As lunchtime approaches, there is a loud knock from inside the jury-room door. Bill looks up. No one speaks, but the hundred people in the room hurry to their seats, their spines stiff. Reporters flip to a fresh page of their notebooks. A judicial marshal cracks open the door, nods quickly, and motions to the clerk. The clerk goes to get Judge Blue, who emerges from his chambers and assumes his seat behind the bench. The jury files into the jury box. Between yesterday afternoon and this morning, they have spent a total of just over four hours in the deliberation room. The marshals are sent to retrieve Hayes from his courthouse holding cell, where defendants wait during deliberations.
When everyone is in place, Judge Blue turns to the jury and says, in a voice louder and clearer than even his usual loud, clear voice, “Have you reached a verdict?”
The jury, sober and in unison, replies, “Yes.”
Hayes and his lawyers stand. Dearington sits, his hands folded on the table in front of him, waiting to hear whether he has proved Hayes’s guilt beyond a reasonable doubt on at least one of the capital felony charges. The foreman hands some papers to the marshal, who passes them to Judge Blue. The judge reads them in silence. Hanna is shaking. Big Bill holds her tight, his huge hand on her tiny shoulder.
Blue peers over his glasses at the jury and says, “This is your verdict and so say you all?”
“Yes.” Strong. Loud.
Bill isn’t in his usual seat. He’s at the other end of the first row, next to Jennifer’s parents. He reaches over and puts a hand on his father-in-law’s shoulder. Everyone stares straight ahead.
After the verdict is read, Bill shakes hands with Dearington and Nicholson, and he even smiles for about two seconds. He hugs his family. On every capital count, the jury has found Hayes guilty. On all but one of the lesser charges, too. But Bill feels no joy. Relief, maybe. A little. But certainly no joy. In one sense, sure, he wanted this day to come. In this new universe in which he lives, the news is good. But it’s a warped victory, and the relief it brings is hollow. Bill doesn’t want to live in this universe at all.
—
There is hardly a break. Thirteen days.
When the penalty phase begins, Judge Blue addresses the jury and describes the duty now before them—deciding whether to give Steven Hayes the death penalty—as “grave and awesome.”<
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The guilt phase left the image of Hayes as a mouth-breathing thug, a brutish and depraved miscreant who thundered into a beautiful home and raped and strangled and burned people alive. Court proceedings can be clinical—those numbered metal canisters containing evidence, the stilted legalese even when talking about the most personal parts of a life. But as the evidence against Hayes mounted, he was reduced to a smaller and smaller person, a darker shadow. The flanks of family and friends around Bill, in turn, became larger-than-life in their humanity, the secondary victims who showed up every day as if it were their sacred duty, dressed with a respect for the courtroom and steeled, as best they could be, against the violence that would be replayed before them. The gaunt man seated at the defense table was marginalized. He became dumb evil, pure and simple.
Hayes’s lawyers, Ullmann and Culligan, veteran public defenders, must bring him to life somehow, and as they begin the penalty phase they strike a tone that is not fiery, not self-righteous, not too aggressive, but assertive. They are here, doing this thankless job, because they believe everyone should have legal representation and because they don’t believe in the death penalty, and they aim to spare Steven Hayes from it. And so they introduce a parade of witnesses who testify about his tormented childhood, and about his previous life as a rather inept petty criminal. A former deputy sheriff from Hayes’s hometown talks about him as if he were her grandson. “Yes, he was very proud of becoming a father,” she says when asked if she knew him when his son was born. She describes him as a “klutz,” and it almost sounds loving. “He just wasn’t all that good as a criminal,” she says. She calls him a follower. “Definitely a follower, definitely—without question.”
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