TRANSCRIPTION: JODI ARIAS PENALTY PHASE – DAY 1 – PART 1
Judge Sherry Stephens (JSS)
JSS:
The record will show the presence of the jury, the defendant, and all counsel.
Ladies & gentlemen, we are going to begin the penalty phase. The bailiff will distribute a copy of the preliminary instructions for the penalty phase. Once everyone has a copy, I will read them to you. I invite you to follow along with me. Again, these are your copies. Feel free to write on them. They will be shredded at the end of the trial.
It looks like we’re one short. Thank you.
Members of the jury, at this phase of the sentencing hearing, you will determine whether the defendant will be sentenced to life imprisonment or death. The law that applies is stated in these instructions and it is your duty to follow all of them whether you agree with them or not. You must not single out certain instructions and disregard others. You must not be influenced at any point in these proceedings by conjecture, passion, prejudice, public opinion, or public feeling. You are not to be swayed by mere sympathy, not related to the evidence presented during the penalty phase. You must not be influenced by your personal feelings of bias or prejudice for or against the defendant or any person involved in this case on the basis of anyone’s race, color, religion, national ancestry, gender or sexual orientation.
Both the state and the defendant have a right to expect that you will consider all the evidence. Follow the law, exercise your discretion conscientiously, and reach a just verdict. I do not mean to indicate any opinion on the evidence or what your verdict should be by any ruling or remark I have made or may make during this penalty phase. I am not allowed to express my feelings in this case, and if I have shown any, you must disregard them. You and you alone are the triers of fact during the aggravation phase jury deliberations.
Effective immediately, however, permission to discuss the case has been suspended until you deliberate again with respect to this phase of the proceedings. The admonition that was in effect in the previous phase is now back in effect. This phase of the trial, unless otherwise directed by the court, will proceed as follows: the defense may make an opening statement. The state may then make an opening statement or may defer until the close of the defense case. Again, what counsel says in opening statements is not evidence. The victim’s relatives may make a statement relating to the personal characteristics of the victim and the impact of his murder on his family. They are not allowed to offer any opinion or recommendation regarding an appropriate sentence. Victim impact evidence is not an aggravating circumstance and you cannot consider it as such. Victim impact evidence may be considered to rebut the mitigation presented. You are to consider this information only for this limited purpose.
The Defense may offer evidence in support of mitigation. The state may make an Opening Statement if it was deferred and may offer evidence in rebuttal to the Defense’s mitigation evidence. This evidence is not a new aggravating circumstance. The Defense may offer evidence in rebuttal to the state’s evidence.
The Defendant may make a statement, but she is not required to do so. You cannot hold this against her if she chooses to not make a statement. The court will then give you the final instructions on the law. The parties will present final arguments with the Defense having the opportunity to make an Opening and Closing argument. You will then deliberate to decide on a verdict. Once you agree on a verdict, you will return to court where the verdict will be read with the parties present.
You are to apply the law to the evidence, and in this way decide whether the defendant will be sentenced to life imprisonment or death. The evidence you shall consider consists of the testimony and exhibits the court admitted in evidence during the trial of this case, during the aggravation phase, and during this penalty phase of these proceedings. It is the duty of the court to rule on the admissibility of evidence. You shall not concern yourselves with the reasons for these rulings. You shall disregard questions and exhibits that were withdrawn or to which objections were sustained. Evidence that was admitted for a limited purpose shall not be considered for any other purpose. You shall disregard testimony and exhibits that the court has not admitted or the court has stricken. The lawyers may stipulate certain facts exist. This means both sides agree that evidence exists and is to be considered by you during your deliberations at the conclusion of the trial. You are to treat a stipulation as any other evidence. You are free to accept it or reject it in whole or in part just as any other evidence.
During the aggravation phase, you found that the state has proved that a statutory aggravating circumstance exists making the defendant eligible for the death sentence. During this penalty phase, the defendant and the state may present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for a sentence less than death. The state may also present any evidence that demonstrates that the defendant should not be shown leniency.
Leniency means a sentence less than death. Mitigating circumstances may be found from any evidence presented during the trial, during the aggravation phase, or during the penalty phase of these proceedings. You should consider all of the evidence without regard to which party presented it. Each party is entitled to consideration of the evidence whether produced by that party or another party.
You are the sole judges of the credibility of the witnesses and what weight is to be given the testimony of each witness. In considering the testimony of each witness, you may take into account the opportunity and ability of the witness to observe, the witnesses memory and manner while testifying, any interest, bias or prejudice the witness may have, the reasonableness of the testimony of the witness considered in light of all the evidence and any other factors that bear on credibility and weight.
The attorneys’ remarks, statements and arguments are not evidence but are intended to help you understand the evidence and apply the law. The attorneys are entitled to make any objections that they deem appropriate. These objections should not influence you, and you should make no assumption because of objections by the attorneys. The defendant is not required to testify or make any statement and you are precluded from drawing an inference against her should she decide not to testify or make a statement. The decision on whether or not to testify or make a statement is left to the defendant acting with the advice of her attorneys. You must not let this choice affect your deliberations in any way.
Mitigating circumstances are any factors that are a basis for a life sentence instead of a death sentence so long as they relate to any sympathetic or other aspect of the defendant’s character, propensity, history or record or circumstances of the offense. Mitigating circumstances are not an excuse or justification for the offense but are factors that in fairness or mercy may reduce a defendant’s moral culpability. Mitigating circumstances may be offered by the defendant or state or be apparent from the evidence presented at any phase of these proceedings.
You are not required to find that there is a connection between a mitigating circumstance and the crime committed in order to consider the mitigating evidence. Any connection or lack of connection may impact the quality and strength of the mitigation evidence. You must disregard any jury instruction give to you at any other phase of this trial that conflicts with this principle.
The fact that the defendant has been convicted of first degree murder is unrelated to the existence of mitigating circumstances. You must give independent consideration to all of the evidence concerning mitigating circumstances despite the conviction. The circumstances proposed as mitigation by the Defendant for your consideration in this case are:
1. Defendant was 27 years old at the time of the offense.
2. Defendant has no prior criminal history.
3. Defendant was a good friend.
4. Defendant lacked support from her family.
5. Defendant suffered abuse and neglect as a child and as an adult.
6. Defendant tried to make the best of her life.
7. Defendant consistently tried to improve herself.
8. Defendant is a talented artist.
You are not limited to these proposed mitigating circumstances in considering the appropriate sentence. You also may consider anything related to the defendant’s character, propensity, history or record or circumstances of the offense.
While all twelve of you had to unanimously agree that the state proved beyond a reasonable doubt the existence of a statutory aggravating circumstance, you do not need to unanimously agree on a particular mitigating circumstance. Each one of you must decide individually whether any mitigating circumstance exists.
You are not limited to the mitigating circumstances offered by the defendant. You must also consider any other information that you find is relevant in determining whether to impose a life sentence, so long as it relates to an aspect of the defendant’s background, character, propensities, record, or circumstances of the offense.
The defendant bears the burden of proving the existence of any mitigating circumstance that the defendant offers by a preponderance of the evidence, that is, although the defendant need not prove its existence beyond a reasonable doubt, the defendant must convince you by the evidence presented that is more probably true than not true that such a mitigating circumstance exists.
In proving a mitigating circumstance, the defendant may rely on any evidence already presented and is not required to present additional evidence. You individually determine whether mitigation exists. In light of the aggravating circumstances you have found, you must then individually determine if the total of the mitigation is sufficiently substantial to call for leniency. Sufficiently substantial to call for leniency means that mitigation must be of such quality or value that it is adequate in the opinion of an individual juror to persuade that juror to vote for a sentence of life in prison. Even if a juror believes that the aggravating and mitigating circumstances are of the same quality or value, that juror is not required to vote for a sentence of death and may instead vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence even if the defendant does not present any mitigation evidence.
A mitigating factor that motivates one juror to vote for a sentence of life imprisonment may be evaluated by another juror as not having been proved or if proved, as not significant to the assessment of the appropriate penalty. In other words, each of you must determine whether in your individual assessment that mitigation is of such quality or value that it warrants leniency in this case.
The law does not presume what is the appropriate sentence. The defendant does not have the burden of proving that life is the appropriate sentence. The state does not have the burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide what you individually believe is the appropriate sentence. In reaching a reasoned, moral judgment about which sentence is justified and appropriate, you must decide how compelling or persuasive the totality of the mitigating factors is when compared against the totality of the aggravating factors and the facts and circumstances of the case. This assessment is not a mathematical one but instead must be made in light of each juror’s individual, qualitative evaluation of the facts of the case, the severity of the aggravating factor and the quality of the mitigating factors found by each juror.
If you unanimously agree there is mitigation sufficiently substantial to call for leniency, then you shall return a verdict of life. If you unanimously agree there is no mitigation or the mitigation is not sufficiently substantial to call for leniency, then you shall return a verdict of death. Your decision is not a recommendation. Your decision is binding.
If you unanimously find that the defendant should be sentenced to life imprisonment, your foreperson shall since the verdict form indicating your decision.
If you unanimously find that the defendant should be sentenced to death, your foreperson shall since the verdict form indicating your decision.
If you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the judge. You must not decide the appropriate sentence based on the facts of the case and by applying these jury instructions. You must not consider the financial cost of any possible punishment when deciding whether to sentence the defendant to life in prison or death. Do not form final opinions about any fact or about the outcome of this case, I’m sorry, of this phase, of the proceeding until you have heard and considered all of the evidence, the closing arguments, and the rest of the instructions I will give you on the law. Keep an open mind. Form your final opinions only after you have had an opportunity to discuss the case with each other in the Jury Room at the end of the mitigation phase.
After the presentation of evidence is completed, I will give you final instructions on the law to be applied by you in making decisions in this phase of the proceeding. These preliminary instructions will remain in effect unless changed by the final instructions.
Mr. Nurmi.
Kirk Nurmi (KN):
Thank you, your Honor. Ladies and gentlemen, the verdict that you will render at the end of this phase of the trial will determine whether or not Jodi Arias will spend the rest of her life in prison…
Juan Martinez (JM):
Objection! Improper argument.
JSS:
Approach, please.
KN:
Your verdict, ladies and gentlemen, will determine whether or not Jodi Arias spends the rest of her life in prison or if she is sentenced to be executed. That’s what your verdict will determine, and make no doubt about it. As the Judge just said to you moments ago, the verdict that you will render is not a recommendation. The judge is not free to disregard it. If you sentence Miss Arias to life in prison she will be sentenced to a life sentence. If you sentence her to death, she will stand at this podium and be sentenced by the judge to death to be executed. That is the decision before you, obviously, an important one, and in many ways a pretty simple distinction to understand life versus death. But what’s maybe not so simple because it’s a little different than the prior phases of this trial is the fact that things work a little differently. In the first phase of this trial there were presumptions and there were burdens, right? Miss Arias was presumed to be innocent and the state had to prove beyond a reasonable doubt that she wasn’t, that she was guilty of first degree murder.
During the second phase of the proceedings, the issue was the aggravating factor and the state had the burden of proving that aggravating factor.
At this stage of the proceedings, the law does not presume what sentence is appropriate. The state does not have the burden of proving that a death sentence is appropriate, and Miss Arias doesn’t have the burden of proving that a life sentence is appropriate.
Each & every one of you, those who deliberate, has to make your own moral assessment on what verdict is correct. You will hear evidence in that regard and we’ll talk in a few minutes about that evidence, but as your jury instructions indicate, each & every one of you gets to make your own moral assessment of what sentence is correct.
Now you’ve heard when the Judge read the jury instructions to you about mitigating circumstances, about mitigating factors, so as you hear the evidence, we need to talk a little bit about those, what they are and how they’re used, or how they can be used by you.
First of all, Miss Arias does bear a burden of proving to you by a preponderance of the evidence more likely than not the aggravating factors, excuse me, the mitigating factors, and then you decide if those mitigating factors are substantial enough to call for leniency to allow her to live her life in prison.
A mitigating circumstance is a term you’re just starting to hear now. It’s important to understand that while the Judge has read a list to you and we’ll talk about that list and the evidence that’s going to be presented to you in a few moments, the witnesses that will take the stand and talk to you, what you will learn during this phase of the trial is not about the Jodi Arias that was living her life in 2006 after she met Travis Alexander, you will hear more about her life before that point in time, what brought her to that point in time so you can understand whose life you’re deciding, whether it should be terminated or not. The law gives you the benefit of that understanding and through these proceedings we will give you the benefit of that understand, and Miss Arias will have the opportunity to talk to you in a different way, not about what happened but about who she is.
In that regard, ladies and gentlemen, it is important to understand the last paragraph that is displayed to you.
Mitigating Circumstances can be found from any evidence presented …
JM:
Objection.
JSS:
Overruled.
KN:
…any evidence presented during the trial, the aggravation phase or the penalty phase. What that means, ladies and gentlemen, is that all the evidence you began hearing back in January of this year is evidence that you can consider. It need not be presented to you during this phase of the trial. There may be something that both parties overlooked, a piece of evidence that you think, Boy, that’s a reason, that’s a reason why I think she should get life, that hasn’t been presented to you, and you and you alone can decide that that is a mitigating factor substantial to call for leniency, and you notice that I’ve been saying, “You and you alone.” I said that a couple of times and I said that for a reason, because unlike those prior phases, you know in the prior phases each and every one of you had to agree on the verdict. You had to agree that she was guilty of first degree murder before you could deliver that verdict. Things work a little differently in this phase. You do have to agree, if you can, as to either the ultimate outcome, be it life or be it death, but you don’t have to agree on the reasons. You’ve heard mitigating circumstances about Miss Arias’s artistic talent. One of you could find that to be mitigating. Another jury could say that doesn’t matter to me but her lack of criminal history does, and that’s a reason to give life. You don’t have to agree on those mitigating factors, as long as you agree on the verdict. That’s what I mean when we say, when the instructions say your own moral assessment of everything you’ve heard since the trail began.
Again, as you process this information, understand that mitigating factors are factors that are a basis for a life sentence instead of a death sentence, so when you hear this evidence, and keep in mind when you hear from these witnesses and when you hear from Miss Arias, this isn’t about an excuse or justification, but factors about Miss Arias’s character, her history, her record, or as you will hear, as you have heard frankly, lack of record, and the circumstances of the offense that aren’t an excuse or justification, but fairness and mercy come into play. In your moral assessment of what the right thing to do is, fairness and mercy come into play.
25:57
Now, listed before you are eight mitigating factors. The defendant was 27 at the time of the offense and she had no prior criminal history. You’ve heard evidence to that effect already. She was born on, there was a driver’s license admitted of her birthday of July 9, 1980. She has no prior criminal history. That was presented to you during the trial. #3 she was a good friend. You will hear from two witnesses during this phase of the proceeding from Miss Arias. You already met one, Darryl Brewer. If you recall, you met him back in January. He was the long time boyfriend of Miss Arias and who in fact, the one that preceded Mr. Alexander. They spent some time together. You’ll hear about the role she played in his life and in his son’s life as well. You will also hear from a friend of hers, a lifelong friend because they lost touch later in Miss Arias’s 20’s when she got together with Mr. Alexander. Her name is Patty Womack. She will talk to you a little bit about the Jodi Arias she knew, her upbringing. She will talk about the lack of support Miss Arias had from her family. She will describe that for you from her observations. You’ve heard during the course of the trial that Miss Arias suffered abuse and neglect as a child and as an adult.
Factors 6, 7, and 8: trying to make best of her life, trying to improve herself, and her work as an artist. You’ve heard a little bit during the course of this trial about how Prepaid Legal is one of the things that Miss Arias was trying to do to improve herself and make the best of her life. How even her desire to join the Mormon church was in that line, her desire to improve herself, to maintain her goals of motherhood, marriage, and having a business, and Mr. Brewer will talk about that a little bit as well, but, and a talented artist. At the end of these proceedings, Ms. Arias will talk to you and you’ll see some of her artwork. You will see her work. You can judge for yourself whether or not that is proven to you as it relates to those final factors, those final three factors. Miss Arias will discuss those and talk to you about how she viewed her life, and she’ll touch on all these factors in a way that she was not permitted to beforehand.
One thing that you will not see in the mitigating factors or even the aggravating factors, one thing specifically precluded from your consideration as you hear this evidence, ladies and gentlemen is that she’s been convicted of first degree murder. It’s not a mitigating circumstance. It is an independent consideration despite the conviction. That means we’ve gotten to a point now, you remember the first day you came in for jury selection, the first day after you filled out the questionnaire, we all, all the parties sat before you and you had a questionnaire and it said, if you got to a point where you would have convicted someone, and then back then it was hypothetical, right? If you had convicted someone of first degree murder, even considering that fact, could you consider a life penalty to be appropriate? Each & everyone of you is here because you said that you could deem a life penalty appropriate, even after that premeditated first degree murder and even after aggravating factors were found, and some of what that says there in that paragraph.
But now, ladies & gentlemen, ultimately that question that we pose as a hypothetical is real because she’s right here. This is the girl right here that you pledged when you were selected as jurors, that after hearing or after possibly convicting her of first degree murder and finding aggravating factors that you would consider giving Miss Arias life. That is what you committed to each one the parties to do, and, ladies and gentlemen, that is what we expect you to do when you hear all the evidence, when you consider all the mitigating factors, when you understand who Miss Arias is, you will understand that life is the appropriate penalty.
JSS:
Mr. Martinez.
31:35
JM:
Today in these proceedings the defendant is asking you to consider certain aspects of her life. In fact, those aspects of her life have been read to you by the court, the Defense counsel has addressed them to you, and there were eight of them that were set out for you to take a look at. With regard to those eight factors, one of the things that defense counsel indicated to you was that you can find other factors from the evidence that has been presented. However, the law is such that you are not to act as an advocate or an investigator to try to find mitigating factors.
KN:
Objection. Misstates the law.
JSS:
Overruled
JM:
Your duty is to take a look at all of the evidence and consider it with regard to fairness, and that’s something the Defense counsel also indicated to you and that fairness goes both ways. It goes both to the defendant, as he pointed out, but also to the person who isn’t here, Travis Alexander. If you take a look at the evidence, those 8 factors that you have here for you to take a look at, and that the defendant who has advanced them must prove by a preponderance of the evidence, one of the things that you should or know when you look at them is that they’re flawed. The reason that they’re flawed…
KN:
Objection! Argumentative.
JSS:
Approach please.
JM:
One of the things that the jury instructions that the court read to you with regard to this mitigating factors, the connection, or lack of connection to the murder may impact the quality, and that’s the reason that these factors they are set out to you are not really worth any uh…
KN:
Objection: Argumentative.
JSS:
Overruled.
JM:
are not of any importance. For example, if you take a look at this indication, and this was put up there for you, that the defendant was 27 years old. Well, there’s no connection, if you will, between her age and the fact that she took a knife and stuck it into Mr. Alexander’s chest.
KN:
Objection! Argumentative. Improper.
JSS:
Approach please.
JM:
There is no connection between her age and what she did to Mr. Alexander. And one of the things that the previous page, on page 6, indicates is that quality, that connection is something that you may consider. For example, that fact that she has indicated she has no prior criminal history, again where is the connection? What does that have to do with what happened on June 4th of 2008? The same can be said for her being a good friend. A good friend to who, and how is that important to what happened on June 4th of 2008?
Additionally, there is this indication that somehow she lacks support from her family. As you saw her today, and as you’ve seen throughout these proceedings, and from the defendant’s own mouth she indicated that her mother was here. That’s an indication of support, but even though there was or there wasn’t support, there is nothing to do with the killing.
She talks about having suffered abuse and neglect as a child and as an adult. Again, where is the connection? And, the fact that she has tried to better herself or that she is trying to do the best in her life, again, what does that have to do, and that she’s a good artist? Again, what does that have to do with the murder? There’s another aspect of these that we need to talk about, specifically, these are not mitigating circumstances…
KN:
Objection! Mischaracterizes the law.
JSS:
Sustained.
JM:
With regard to these, #2, they indicate to you that the defendant has no criminal history. Really? Were you present when she was testifying? Do you remember her testifying, and do you remember her testimony that she was untruthful to you…
KN:
Objection, your Honor, mischaracterizes the testimony and is argumentative.
JSS:
As stated, sustained.
JM:
Do you remember the colloquy regarding the gas cans? Do you remember what she told you about that? She took an oath to tell the truth, the whole truth, and nothing but the truth. When somebody takes the stand, and they are not being truthful, that is a crime. True, she hasn’t been convicted of it, but does that mean that she has no prior criminal history? That happened before this and that is something for your consideration, and that is a microcosmic, if you will, view of the rest of these mitigating circumstances as they are laid out. That she was 27 years old. Evidence has been presented that she has gone through 4 boyfriends, that she has gone through numerous jobs…
KN:
Objection, argumentative.
JSS:
Overruled.
JM:
According to them, there’s going to be evidence presented that she was a good caretaker of Mr. Brewer’s child, that she had a good relationship with him, so in those 27 years, she has lived a lot. It’s not like she was an 18-19 year-old child that had never been out in the world.
Additionally, that she was a good friend. Good friend to whom -- that apparently to this individual that will come in and testify to you that she has been a good friend to the defendant. What does that mean? When was she a good friend, and how does that make this a mitigating circumstance?
That she lacked support from her family. You saw her mother here. How do we know other than from the defendant’s mouth that she lacked support from her family, and remember, keep in mind the previous two other proceedings including the guilt phase where perhaps when she was speaking to you there were those inconsistencies and those issues with her speaking to you.
That she suffered abuse neglect as a child and as an adult, that is something that has been gone over many times on the witness stand during her 18 days that she was up there, and during that time, as you know, no evidence was presented from any medical facility, from a police agency, and from anybody else that would support that – just the defendant’s word. That she’s trying to make the best of her life and is trying to improve herself. Well, isn’t that just what everybody tries to do? Isn’t that just normal? Isn’t that something that most people do? Why is that a mitigating circumstance?
And finally, something about her being a talented artist, and you’ve heard that as a talented artist she somehow was somebody that could, uh… you were told about paintings, you also were told from the witness stand that she’s a photographer. Yes, I guess in a way she is a talented artist because she can take photographs of Mr. Alexander in the shower that look like the Calvin Klein commercial, and after she takes pictures of him in that position and after they are inadvertent photographs of her committing this crime, what is, do we know, that she is so talented that she can take that camera and delete the images that negatively affect her…
KN:
Objection! Argumentative and facts not to be considered.
JSS:
Overruled.
JM:
The fact that she is that talented indicates to you, in this particular case, that all of these items that are going to be presented to you, every single one of them is nothing more than the defendant’s statements attempting to gain sympathy, and in view of the fact that there are no mitigating circumstances in this case, the only appropriate sentence based on what the jury instructions tell you that you should do is death. Thank you.
JSS:
Ladies and gentlemen, please go back to the Jury Room for approximately five minutes. You will be recalled at that time. Please remember the admonition.
Jodi Arias Penalty Phase - Day 1 - Part 1 - YouTube
