trial it's not necessarily a defense. their argument and opening statement is, well they did it but things just went aeu rye -- arye. it got out of hand. megyn: what's what the defendant steve hayes said when he was arrested on site. >> what, i accidentally killed them? it seems to go to the defense that if police had acted faster. let me just be clear i'm not blaming this on police, this is on the hands of the two murderers who did it, i'm just talking about what the defense theorize. they seem to be arguing if the police had acted faster things would not have, quote, got even out of control. is that even a recognized defense, wendy? could that be used at least in the penalty phase to lessen the penalty? >> no, no it's not legitimate as a defense to the merits, it's not legitimate as a mitigation factor during the death penalty phase. but, again, if jurors get distracted by this red herring, well the cops could have done better, the cops could have done