NEW HAVEN, Conn. (CBS/WFSB) The penalty phase of the Petit family murder trial was nearly derailed Monday after the sole remaining alternate juror was caught passing a flirtatious note to a court officer asking for a date, just as the defense wrapped up its arguments against the death penalty for Steven Hayes, convicted of the 2007 triple murder of Jennifer Hawke-Petit and her two daughters.
The note-passing incident happened Friday afternoon when the juror in question gave a napkin to another juror to pass along to the object of her affection. It read simply "Sunday 5pm. Side Street Grill. Hamden," according to the Hartford Courant.
But the note was intercepted by a court clerk and brought to the attention of the court. Superior Court Judge Jon Blue revealed the incident to the attorneys Monday morning and confronted the alternate about the note, the paper reported.
"Pardon my French," Blue said, "but this was a god---- dumb thing to do."
After speaking with the juror, and allowing the attorneys on both sides to question her, Blue said he was satisfied that the note-passing would not affect her ability to remain impartial and to focus on the evidence and arguments in the case. But Blue did say that he would "continue to think about this" in case the alternate was called to replace one of the 12 jurors, according to CBS affiliate WFSB.
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 station reported.
The judge had previously 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 regarding that juror's dismissal, claiming that state law requires the same jury for the guilt and penalty phases of the trial. Blue said Monday the issue was an interesting legal argument over whether the phrase "the same jury" means the same 12 jurors or whether it can include alternates, as the Ohio Supreme Court ruled, according to WFSB.
Hayes was convicted Oct. 5 of breaking into the Petit home in 2007 with another man, Joshua Komisarjevsky, and raping and killing Jennifer Hawke-Petit, then tying her two young daughters, Michaela, 11, and Hayley, 17, to their beds and setting the house on fire. Michaela and Hayley both died in the fire. The two men also beat up Dr. William Petit and tied him up in the basement, but he was able to escape and attempted to get help from a neighbor.
Komisarjevsky faces a separate capital murder trial next year for his role in the murders in addition to the charge of sexually assaulting Michaela.
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.