The Supreme Court set a Nov. 13 deadline for briefs on the constitutionality issue. The state will then have 60 days to respond. A hearing could be held sometime early next year.
Paulding said he thinks Hayes could have a tougher fight than Ross to get death in light of the repeal.
"I would have to believe it would be harder for this to occur now," Paulding said. "If I was a judge now and Steven Hayes said that to me, I would tell him I am going to defer any orders on this until the Supreme Court rules."
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In his letter, Hayes said he would be making "a formal announcement" about his decision to go to "the death chamber" during "the 2nd week of October," but he did not say how he would announce it.
"I was willing to live with the intense grief from my past actions, and I still am willing," Hayes wrote. "However, I cannot live with the intense tourcher (sic), torment, harassment, and the resulting psychological trauma dished out by the Dept. of Corr. staff here at Northern. I was sentenced to death, not sentenced to tourcher (sic) and punitive treatment until death."
It is possible, too, that Hayes could change his mind. Defense lawyers say death-row inmates sometimes push for execution when they have lost hope in their appeals, but then on another day want to fight to stay alive.
In April 2005, Sedrick Cobb, sentenced to death for the 1989 rape and murder of 23-year-old Julia Ashe of Watertown, said he wanted to withdraw his appeals and proceed to his execution. The following month, Cobb changed his mind.
Inmates have that option, Paulding said, up until the very end.
In a private room near the prison's death chamber where Ross was about to be executed, Paulding said he recalled being grilled by officials just minutes before the lethal injection was administered on whether Ross still wanted to die.
"The state wanted to make very sure that he had not changed his mind," Paulding said. "And they were prepared to stop it if he had."