Court Tape MIA in High Profile Conn. Arson, Murder Case

June 05--NEW HAVEN -- A cassette tape is missing from a half-day of the jury selection for Steven Hayes' trial in the Cheshire triple homicide, a development that might be used by his attorneys as they try to overturn his conviction and death penalty.

The lost cassette was discussed Wednesday in Superior Court, where the main players from Hayes' 2010 trial reassembled: Hayes himself, looking thinner than before in an orange prison jumpsuit; his attorneys during his trial, New Haven Chief Public Defender Thomas Ullmann and Patrick Culligan of the office of chief public defender; State's Attorney Michael Dearington and Senior Assistant State's Attorney Gary Nicholson; and Judge Jon C. Blue.

There were two new faces in the courtroom: attorney Jennifer Bourn, who is one of the lawyer's handling Hayes' appeal; and attorney Robert Scheinblum of the chief state's attorney's office, representing the state in challenging the appeal.

When the court staff was unable to find the tape after a long search, all legal parties to the appeal were notified. Those attorneys are entitled to have transcripts of the jury selection process to study how each juror was selected.

Choosing that jury was an exhaustive process that consumed 48 days of one-on-one questioning of dozens of potential jurors by prosecutors and defense attorneys. The sessions began in February 2010 and were not completed until June of that year.

Three months later, Hayes went on trial for murder, arson and many other counts. He was one of two men who invaded the home of Dr. William Petit Jr. and his wife, Jennifer Hawke-Petit on July 23, 2007. She was strangled and their daughters, 11-year-old Michaela and 17-year-old Hayley, died in the fire spread by an accelerant.

Petit, who had been severely beaten with a baseball bat, survived by stumbling out of the house to get help.

Hayes was convicted on 16 counts. In the second phase of the trial, to determine whether he would serve life in prison or be executed, the jury went for the death penalty.

The second defendant, Joshua Komisarjevsky, was convicted in 2011 and he also was sentenced to death.

The missing tape from May 24, 2010 could be significant because it contained the question-and-answer session for the last alternate juror who was selected. Alternates are used when regular jurors can no longer serve.

This female alternate was present for the first phase of Hayes' trial but she did not participate in the jury deliberations because she was still an alternate. But she became a regular juror during the penalty phase after a regular juror could not continue.

When testimony concluded in the penalty phase, Culligan argued in court that state law does not allow a juror who has not participated in the guilt phase deliberations to then deliberate in the penalty phase. Blue said the statute was not clear and so he denied the motion.

If Blue had accepted the defense motion, it would have meant a mistrial for the penalty phase but the convictions would have remained. A new jury would have been needed for the penalty phase.

Ullmann noted after court adjourned Wednesday that Blue also ruled against the defense attorneys when they objected to his removing a juror during the guilt phase of the trial.

"I'm assuming the appellate lawyers are looking at our claim of improper removal of a juror and putting a juror in the penalty phase that wasn't in on the guilt phase deliberations," Ullmann said.

He said if those attorneys are successful in their arguments before the state Supreme Court, those judges could conceivably overturn the conviction as well as the death penalty decision.

"We hope it's successful," Ullmann said of the appeal effort. "This has always been our goal: to try to save Steven Hayes' life."

But Dearington said after court adjourned Wednesday he isn't concerned that either phase of the trial could be overturned.

"It's up to the court to make that decision," Dearington said. "But from what I know about it, no, I'm not concerned."

Blue noted this is now a Supreme Court case and his job is merely to assemble documents such as notes the attorneys made during the day of the missing tape, and transfer them to the higher court.

Komisarjevsky, 32, and Hayes, 50, both are being held at the state's Northern Correctional Institution in Somers, state online records show. The facility houses death row inmates for the state Department of Correction.

Call Randall Beach at 203-789-5766.

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