The jury charged with deciding whether Steven Hayes dies quickly or slowly will be deliberating today.  It’s a Sunday.  They deliberated yesterday, Saturday, as well.  No one’s head exploded.

The murders in Cheshire, Connecticut were sure to capture enormous media attention.  They were salacious and horrific.  They involved wealthy white people.  The case has all the makings of a Lifetime movie, and no one with half a brain would have thought that this case wasn’t going to receive enormous attention. 

This isn’t a reason to complain.  People will be interested in what they are interested in.  You can’t force them to care, and can’t stop them from caring.  It is what it is.  Whining that it’s wrong is ridiculous. 

Has it received too much attention or the wrong type of attention?  Given that the media, for lack of anything meaningful to report, notes every time the survivor, Dr. William Petit, scratches his nose, sure.  But it’s inconsequential.  They have space to fill, and dedicating a slew of reporters of all flavors to the case means they have to come back with something to justify their paycheck.  Even reporters have to work for a living.

Jeff Gamso has provided a thoughtful explanation of the jury’s task:

First, did Hayes prove one of three statutory mitigating factors:  Was he mentally impaired?  Was his ability to obey the law impaired?  Was it unreasonable to imagine that what he did would pose a “grave risk of causing death”?*  How one proves such things is, well, less than clear.  On the other hand, as I’ve noted before (here, for instance), proof is what a jury believes, however it gets there.

In any event, assuming the jury doesn’t believe that Hayes proved one of those three things, it has to decide if the state proved any of the aggravating factors it charged.

And assuming they do (and you can trust me, they will), the jury has to decide whether Hayes has proved some non-statutory mitigating factor.  That is, did Hayes offer, in a moderately convincing way, some reason why the jury should spare his life?  

If so (and probably so), they come to the money question.

Do the aggravating factors outweigh the mitigating factors?

If they do, it’s murder.  If they don’t, it’s death in prison.

That the jury is still deliberating is quite extraordinary, given that it’s “death qualified,” meaning that it’s not disinclined to execution and begins from the premise that capital punishment is on the table.  For those of us who do not favor capital punishment, such juries begin their task with one foot in the execution chamber. 

When there is little to discuss, there’s a tendency for discussion to turn stupid.  Yesterday, Saturday, was such a day, when expressions of outrage were heard about Judge Jon Blue’s decision to have the jury deliberate over the weekend.  Such things don’t happen anymore. 

So what?

It’s wrong that this case is getting special treatment.  Maybe, but so what?  The intelligent answer isn’t that the handling of this case is wrong, but that the failure to give special treatment to every capital case is wrong.  In fact, every case should receive special treatment.  But if every case does, then it isn’t special. 

And this case is special, not because there’s something more inherently important about the wrong done a wealthy, white professional’s beautiful family, but because there are so many eyes watching.  Rather than complain about it, use it.  There was never a chance the case wouldn’t receive extreme media attention, making it an opportunity to discuss serious issues.  Instead, the sides lined up as they always do, playing to the mindless emotions of their respective teams.  Not a single mind was changed.  The volume was turned high, but the sound was all static.

Judge Blue doesn’t want this jury to bust.  He’s got one alternate, and she’s tainted herself by inappropriate attention to her libido.  He doesn’t want to be forced to use her, as that would open the decision to collateral attack.  He wants the chosen 12 to reach a verdict, and he knows that every day that passes offers a chance for entropy to take its toll.  Things happen, to children, parents, spouses, dogs, people, that could cause a juror to not appear.  If the jury was off for the weekend, two days would pass and things might happen to make Monday morning a problem.

There’s a cost associated with the jury deliberating over the weekend in the otherwise empty courthouse.  There’s a cost associated with having to retry the case that far exceeds the cost of weekend deliberations. 

Perhaps the most important concern for the judge is that all the eyes watching the case believe that the system worked, regardless of outcome.  If that means employing extraordinary measures, like weekend deliberations, so what? 

Deliberating on a weekend doesn’t favor one side over the other.  The jury doesn’t seem troubled by it, and after eight weeks on the job, they are likely pleased to return to their real lives as quickly as possible.  But the fact that they haven’t rushed to judgment suggests, given the horrific nature of the crime and the paltry evidence in mitigation, suggests that this is a good jury.  They could just as well have returned a penalty five minutes after their first meal.  They haven’t. 

The reality behind the quibbling over weekend deliberations is that the more onerous the deliberations are, the more likely a mistrial will be.  Then it starts over, as the evidence from the guilt phase is needed for the penalty phase, even though guilt isn’t at issue.  Anything that might scuttle the case, and delay a decision, seems like a good thing at the moment.

But don’t fault Judge Blue for doing his job, helping a jury that’s engaged in serious deliberations reach its verdict.  His job isn’t to scuttle the trial.  His job is to prevent that from happening, provided he can do so without prejudicing the defendant.  And he’s not.

In the longer term view, however, there will eventually be a decision made as to whether Steven Hayes dies sooner or later.  That’s inevitable.  Right now, there is a serious jury doing very serious work.  The system may suck, but that doesn’t mean the jury does.  That they remain out in a case with facts like this is a testament to their fortitude. 

Let’s not demean their effort by raising ludicrous issues to suggest that they’re being coerced, or rushed, or forced, and that they’re decision can’t be trusted.  Today will be the third day of deliberations on penalty, and that speaks volumes as to the seriousness with which they approach their task.

It’s a shame that the Nutmeg State has a death penalty.  It reflects poorly on Connecticut that there is a jury out today considering the execution of a human being.  Not because it’s Sunday, but because there is a jury considering the question of execution at all.