The sentencing defense for Steven Hayes ended after nine days of testimony and about a dozen witnesses. Prosecutors plan to call a few witnesses Tuesday before closing arguments Thursday and then jury instructions and deliberations to determine whether Hayes should get the death penalty or life in prison.
On Monday morning, the judge refused to dismiss an alternate juror who showed romantic interest in a court marshal, though he said he would "continue to think about this" in case the alternate was called to replace one of the 12 jurors. Judge Jon Blue said a "middle school note" the juror attempted to pass to the security officer Friday was "spectacularly poor judgment" but did not affect her impartiality.
A clerk intercepted the note. The juror is the last alternate, and Blue acknowledged she might be needed.
"Obviously this is embarrassing," Blue told the juror. "I'm a romantic at heart."
The juror, who had passed the note on a napkin to another juror late Friday suggesting the court official meet her at a bar and restaurant, apologized and said she would be able to pay attention to evidence. The judge said the marshal was innocent but reassigned.
A defense lawyer sought to have the alternate juror dismissed, calling the note "disturbing" in a case involving a potential death sentence and saying it showed she was not focusing her attention on the evidence. Prosecutors opposed the motion, saying the juror had been paying attention.
The judge had dismissed a juror Friday who was overheard making a derogatory comment about the defense to another juror.
Hayes' attorney, Tom Ullmann, said he planned to raise a legal challenge Tuesday because the dismissed juror was replaced with an alternate and state law requires the same jury for the guilt and penalty phases of the trial. Blue called the issue an interesting legal argument over whether the phrase means the same 12 jurors or can include alternates, as the Ohio Supreme Court ruled.
Hayes was convicted last month of killing Jennifer Hawke-Petit and her two daughters.
Authorities said Hayes and another ex-convict, Joshua Komisarjevsky, broke into the Petit house, beat Hawke-Petit's husband, William, with a baseball bat and forced her to withdraw money from a bank before Hayes strangled and sexually assaulted her. Their daughters, Michaela and Hayley, died of smoke inhalation after they were tied to their beds with pillowcases over their heads and doused with gasoline before the house was set ablaze, according to testimony.
Hayes' attorneys tried to portray Hayes as so remorseful that he repeatedly tried to kill himself and actually wants a death sentence. The defense also argued Hayes was a clumsy thief driven by a powerful drug addiction rooted in an abusive childhood who was never violent until he met Komisarjevsky, calling him the mastermind who escalated the violence in the Petit home.
Hayes' defense called a psychiatrist who said Hayes was in an extreme emotional state triggered after Komisarjevsky falsely told him he had killed the girls before they had actually died in the fire.
Prosecutors said both men were equally responsible for the crimes.
Komisarjevsky faces trial next year.
The defense lawyers closed their case by reminding jurors that Hayes had offered to plead guilty before his trial in exchange for a life sentence, saying the move would avoid the trauma of a trial.
A clerk also read a letter Hayes wrote his son in 2005 describing how his drug addiction ruined his life.
"I love you and I hope one day to have a chance to make it up to you," Hayes wrote.