Experts Say Hayes' Lawyers May Lose Fight To Keep Him Off Death Row

Veteran defense lawyers Patrick J. Culligan and Thomas J. Ullmann are well-known for their vehement opposition to the death penalty.

And now they represent a client who seems willing to take a seat on death row.

Next week, the two attorneys plan to vigorously fight Steven Hayes' decision to plead guilty to the 2007 Cheshire home invasion killings, but can they go against their client's wishes?

As a general rule, in a criminal case, "the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered and whether to waive jury trial," under the Connecticut Rules of Professional Conduct.

Jeffrey A. Meyer, a former federal prosecutor who teaches at the Quinnipiac University School of Law, said that means a lawyer must act on behalf of his client, "even if the lawyer does not personally or philosophically agree with the client's wishes."

The exception is if the client is acting with "diminished capacity," according to the rules, though "diminished capacity" is never defined.

"It is not clear how they could make a persuasive showing of diminished capacity under the rule," Meyer said.

Hayes' revelation to Judge Jon C. Blue on Thursday about his wish to plead guilty came shortly after Blue said from the bench that a report issued by a team of experts showed Hayes was competent to stand trial. The report prompted Hayes' attorneys to waive a competency hearing they had requested for Hayes.

By waiving the hearing, veteran New Haven attorney Hugh Keefe said, Hayes' attorneys conceded that Hayes was mentally competent.

"At that point, there's nothing to stand in the way of him making that decision," Keefe said.

"Some people do choose death over life in prison," Keefe said. He noted the May 13, 2005, execution of serial killer Michael Ross, the first person to be put to death in New England in 45 years. The execution occurred after Ross waged a legal fight to have his sentence imposed.

"It's perfectly possible for a criminal defendant to rationally and competently make that decision," Keefe said. "But the question is if the person is making that decision rationally and competently."

If Hayes' lawyers can't talk him out of pleading guilty without a plea bargain, and a judge accepts Hayes' guilty pleas to multiple charges of murder, kidnapping, sexual assault, burglary, larceny and arson, Hayes could end up with new lawyers. The rules state that if "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement," then a lawyer can withdraw from a case.

Legal experts with knowledge of Culligan, who heads the state's capital defense unit, and Ullmann, who leads New Haven's public defenders office, say both lawyers oppose the death penalty and would adamantly fight a client's execution.

"Assuming your client is competent to make the decision, there is no reason not to advocate what your client's position is. That's your job," Keefe said. "Whether the lawyer wants to still be the lawyer in that case, that's another question."

Hayes and co-defendant Joshua Komisarjevsky are accused of killing Jennifer Hawke-Petit and her two daughters, Hayley, 17, and Michaela, 11, during a break-in, robbery and arson at the Petits' Cheshire home on July 23, 2007. Hawke-Petit's husband and the girls' father, Dr. William Petit Jr., was badly beaten but survived.

Both Hayes and Komisarjevksy face the death penalty if convicted of the triple slaying and have offered repeatedly — and unsuccessfully — to plead guilty in exchange for a punishment of life in prison without the possibility of release.

Hayes' attorneys have until Monday afternoon to file a motion opposing a change in plea. A hearing is scheduled for Tuesday on Hayes' request.

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