Jodi Arias Legal Question and Answer Thread *no discussion* #2

[Midnight Rambler]

Thank you AZlawyer, Great answer and info.

 

[LinTX]

AZlawyer, thank you for explaining, though that part about the aggravator really puzzles me and I'm interested to know more about what that is based upon. Has there been an appeal ruling that concerns this?

Reading statutes, I don't see anything restricting the state's mitigation evidence to the aggravator in any way - it seems to say the opposite, specifying in several that the state the has the right to present "any" evidence relating to leniency, either for or against, including "any aspect of the defendant's character, propensities or record and any of the circumstances of the offense" and to "any evidence" to rebut what the defense presents. It says the penalty phase jury "shall consider as mitigating circumstances any factors proffered by the defendant or the state that are relevant in determining whether to impose a sentence less than death" but nothing about relevance to the aggravator proved.

I see nothing that says one phase relates to the other either, in terms of the state, only that what is proved in the two separate phases determine the sentence imposed - that if an aggravator is proved, the death penalty is imposed unless substantial evidence for leniency is found. The only restrictions I can find specified for this phase are for the defense presenting evidence that argues the verdict or the aggravator, but nothing for the state.

 

[AZlawyer]

AZlawyer, thank you for explaining, though that part about the aggravator really puzzles me and I'm interested to know more about what that is based upon. Has there been an appeal ruling that concerns this?

Reading statutes, I don't see anything restricting the state's mitigation evidence to the aggravator in any way - it seems to say the opposite, specifying in several that the state the has the right to present "any" evidence relating to leniency, either for or against, including "any aspect of the defendant's character, propensities or record and any of the circumstances of the offense" and to "any evidence" to rebut what the defense presents. It says the penalty phase jury "shall consider as mitigating circumstances any factors proffered by the defendant or the state that are relevant in determining whether to impose a sentence less than death" but nothing about relevance to the aggravator proved.

I see nothing that says one phase relates to the other either, in terms of the state, only that what is proved in the two separate phases determine the sentence imposed - that if an aggravator is proved, the death penalty is imposed unless substantial evidence for leniency is found. The only restrictions I can find specified for this phase are for the defense presenting evidence that argues the verdict or the aggravator, but nothing for the state.

Yes, based on AZ and US Supreme Court case law it would be unconstitutional for the state to actually be able to introduce aggravating evidence in the mitigation phase with no burden of proof, no statutory limitations on aggravating factors, and no evidentiary rules to limit hearsay, etc.

 

[LinTX]

Yes, based on AZ and US Supreme Court case law it would be unconstitutional for the state to actually be able to introduce aggravating evidence in the mitigation phase with no burden of proof, no statutory limitations on aggravating factors, and no evidentiary rules to limit hearsay, etc.

But by statute, they are clearly allowed to enter evidence against the mitigators and rebut what the defense puts up. Much of what JSS has not allowed fits within those areas, and the defense certainly benefits by the same evidentiary rules. If a mitigator is one they've listed, then it should be fair game to argue against it. And as far as aggravators go, that can't be just anything, they're limited by statute, right? If not one of those, how can it be interpreted as introducing new aggravating evidence, or are you using "aggravating" in a different context? Can you give me a good example of this issue in an opinion that I can find online?

Hope you know I just enjoy picking your brain - not arguing, just trying to understand and enjoy learning about the legal issues!:tyou:

 

[AZlawyer]

But by statute, they are clearly allowed to enter evidence against the mitigators and rebut what the defense puts up. Much of what JSS has not allowed fits within those areas, and the defense certainly benefits by the same evidentiary rules. If a mitigator is one they've listed, then it should be fair game to argue against it. And as far as aggravators go, that can't be just anything, they're limited by statute, right? If not one of those, how can it be interpreted as introducing new aggravating evidence, or are you using "aggravating" in a different context? Can you give me a good example of this issue in an opinion that I can find online?

Hope you know I just enjoy picking your brain - not arguing, just trying to understand and enjoy learning about the legal issues!:tyou:

What has she not allowed that was rebuttal of mitigation? I'm not trying to be snarky, just can't think of anything.

The point about introducing "stealth" aggravators is that the jury instructions might SAY that the one and only aggravating factor is cruelty, but if the prosecutor is allowed to present all kinds of other "bad stuff" about the defendant that has nothing to do with rebutting mitigation, the jury is bound to think they are allowed to consider it.

Sample language from the AZ Supreme Court:

Defendant argues that the court applied its own nonstatutory factors such as “moral outrage,” and improperly used him as “a vehicle to promote social control.” For a capital sentencing scheme to pass constitutional scrutiny, “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” State v. Mata, 185 Ariz. 319, 323, 916 P.2d 1035, 1039 (1996)(quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976)). The trial court can give weight only to evidence that tends to establish an aggravating circumstance enumerated in A.R.S. § 13–703(F). See State v. Gulbrandson, 184 Ariz. 46, 66, 906 P.2d 579, 599 (1995).

State v. Schackart, 190 Ariz. 238, 250, 947 P.2d 315, 327 (1997).

 

[tlckgram]

I was wondering if there is any circumstance during this phase of the trial if it is possible for the prosecution to get the offer of JA to plead to 2d degree manslaughter with the threat of dragging TA through the mud. TIA

 

[AZlawyer]

I was wondering if there is any circumstance during this phase of the trial if it is possible for the prosecution to get the offer of JA to plead to 2d degree manslaughter with the threat of dragging TA through the mud. TIA

I don't think so. First of all, it would be impossible to show that JA personally was involved in any way with respect to the content of that motion. Second, the motion was worded as though JA would RELUCTANTLY be FORCED to tell the "TRUTH" about those things to save her life , not like she would vengefully make up lies about Travis if she didn't get what she wanted (which is what actually happened IMO).

 

[LinTX]

What has she not allowed that was rebuttal of mitigation? I'm not trying to be snarky, just can't think of anything.

The point about introducing "stealth" aggravators is that the jury instructions might SAY that the one and only aggravating factor is cruelty, but if the prosecutor is allowed to present all kinds of other "bad stuff" about the defendant that has nothing to do with rebutting mitigation, the jury is bound to think they are allowed to consider it.

Sample language from the AZ Supreme Court:

Defendant argues that the court applied its own nonstatutory factors such as “moral outrage,” and improperly used him as “a vehicle to promote social control.” For a capital sentencing scheme to pass constitutional scrutiny, “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” State v. Mata, 185 Ariz. 319, 323, 916 P.2d 1035, 1039 (1996)(quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976)). The trial court can give weight only to evidence that tends to establish an aggravating circumstance enumerated in A.R.S. § 13–703(F). See State v. Gulbrandson, 184 Ariz. 46, 66, 906 P.2d 579, 599 (1995).

State v. Schackart, 190 Ariz. 238, 250, 947 P.2d 315, 327 (1997).

My brain must be scrambled by your yelling at me, so I'm having a little trouble coming up with a bunch of examples LOL. :tantrum:

Seriously though with all the sealed docs and bench conferences it's hard to know but it seems she keeps JM on a pretty short leash as compared to what the defense is able to say about TA. One that is definitely a mitigator is an older ruling that the state cannot argue lack of remorse. But what I was questioning was in your original answer about defense painting TA as a manipulator while denying the state the ability to show her as one - both of those would go to mitigation IMO. Her being shown as the real manipulator is direct rebuttal to them painting her as a poor, weak, emotionally abused victim unable to handle his bullying, isn't it? I understand testimony has to be about mitigators they list and argue, but that is one of hers. I did read the case you mention, and see that he argues non-statutory aggravators, but we are talking about evidence directly connected to a listed mitigator. I noticed that they found no merit in the defendant's argument of non-statutory aggravators because they found the judge capable of "focusing on relevant factors and of setting aside irrelevant and emotional ones". That does make me realize JSS has to weigh the evidence for this carefully. My concern is that the judge in 'our' case, may not be as capable as the one in that case though, and is hampering the state's full right to rebut or offer evidence that does apply to her listed mitigators. Not today though - she let JM get on with the show, so I'll concede that she's not always wrong, LOL!

 

[Colie]

AZ What will be the likely outcome of the 3 juror questions for Jodi while she was on the stand? And could Juan cross /ask questions about the responses?

 

[AZlawyer]

My brain must be scrambled by your yelling at me, so I'm having a little trouble coming up with a bunch of examples LOL. :tantrum:

Seriously though with all the sealed docs and bench conferences it's hard to know but it seems she keeps JM on a pretty short leash as compared to what the defense is able to say about TA. One that is definitely a mitigator is an older ruling that the state cannot argue lack of remorse. But what I was questioning was in your original answer about defense painting TA as a manipulator while denying the state the ability to show her as one - both of those would go to mitigation IMO. Her being shown as the real manipulator is direct rebuttal to them painting her as a poor, weak, emotionally abused victim unable to handle his bullying, isn't it? I understand testimony has to be about mitigators they list and argue, but that is one of hers. I did read the case you mention, and see that he argues non-statutory aggravators, but we are talking about evidence directly connected to a listed mitigator. I noticed that they found no merit in the defendant's argument of non-statutory aggravators because they found the judge capable of "focusing on relevant factors and of setting aside irrelevant and emotional ones". That does make me realize JSS has to weigh the evidence for this carefully. My concern is that the judge in 'our' case, may not be as capable as the one in that case though, and is hampering the state's full right to rebut or offer evidence that does apply to her listed mitigators. Not today though - she let JM get on with the show, so I'll concede that she's not always wrong, LOL!

The state cannot argue lack of remorse--UNLESS the defense argues remorse and the state is just rebutting it. I am 99.99% sure that's what the ruling says, although I haven't seen it.

Showing that someone is a manipulator doesn't really rebut evidence that they have been manipulated by someone else--but I think JM's getting it in indirectly by rebutting evidence that she was passive, etc. The same behavior he is using to directly rebut the character traits they have claimed for JA also indirectly shows she is a lying manipulative stalker.

That case (and most others in AZ) is dated before juries took over sentencing (because the US Supreme Court said that was required). So JSS will not be weighing the evidence at all unless she is deciding between LWOP and LWP.

I absolutely have not seen JSS keeping out relevant evidence. She is bending over backward for the defense on issues of form, but doing everything she can for Juan to get in the substantive evidence he needs.

AZ What will be the likely outcome of the 3 juror questions for Jodi while she was on the stand? And could Juan cross /ask questions about the responses?

I don't think they will be asked unless JM agreed to it, because she has adamantly refused to be cross-examined. But I bet he will agree, because 90% of the time whatever Jodi says damages her case.

 

[RickshawFan]

Is there any chance that Jodi had a criminal record as a juvenile and the record was expunged at 21, as they do in some states, IIRC? And, if yes, could the juvenile record be brought into evidence at sentencing for a murder conviction, since it rebuts the mitigating factor "no criminal history"?

In the guilt phase a juvenile criminal record could easily have been excluded as prejudicial, which would explain why we might not have seen it up to now?

I can't think what Jodi was doing all those years unless maybe she was under court supervision!

 

[AZlawyer]

Is there any chance that Jodi had a criminal record as a juvenile and the record was expunged at 21, as they do in some states, IIRC? And, if yes, could the juvenile record be brought into evidence at sentencing for a murder conviction, since it rebuts the mitigating factor "no criminal history"?

In the guilt phase a juvenile criminal record could easily have been excluded as prejudicial, which would explain why we might not have seen it up to now?

I can't think what Jodi was doing all those years unless maybe she was under court supervision!

I think JM could use a juvenile history if there is one. I don't think he would have asked to admit it in the guilt phase--not because it would be prejudicial but because it would be totally irrelevant to the question of guilt. But he would have been able to use it in the prior penalty phase, because IIRC she did assert "no criminal history" as a mitigator that time.

Really, though, I think her parents would have mentioned it in their interviews with Flores if she had any history.

 

[Gryphon610]

Hi AZL. Do the alternate jurors get to deliberate along with the chosen 12 once the case goes to the jury, but they don't cast a vote? How does this work? Am wondering because what if something happened to one of the 12 requiring an alternate to step in and they could bring in an entirely new observation/insight into the discussion. TIA for your answer.

 

[Gryphon610]

Hi AZL. Do the alternate jurors get to deliberate along with the chosen 12 once the case goes to the jury. Obviously they don't cast a vote but do their thoughts get heard? How does this work? Am wondering because what if something happened to one of the 12 requiring an alternate to step in? They conceivably could bring in an entirely new observation/insight into the discussion. Am thinking ahead in case the supposed psychologist on the jury doesn't make the cut. TIA for your answer. Always look forward to your posts! Please respond to this post and not the unclear one above. My edit ability had timed out. Sorry for the confusion.

 

[AZlawyer]

Hi AZL. Do the alternate jurors get to deliberate along with the chosen 12 once the case goes to the jury. Obviously they don't cast a vote but do their thoughts get heard? How does this work? Am wondering because what if something happened to one of the 12 requiring an alternate to step in? They conceivably could bring in an entirely new observation/insight into the discussion. Am thinking ahead in case the supposed psychologist on the jury doesn't make the cut. TIA for your answer. Always look forward to your posts! Please respond to this post and not the unclear one above. My edit ability had timed out. Sorry for the confusion.

The alternates do not deliberate. If an alternate is required to step in, the whole group is supposed to "start over" in deliberations. I'm not sure that's really possible, but that's what they're told to do.

 

[My-Future-Ex-Husband]

Hi AZL.

When defendants want to represent themselves do they have to go through a competency hearing?

Would this be why LKN doesn't want the jury to know CMJA wanted to represent herself because it would show she's legally sane and he's going for "she's a nut job and doesn't know anything"?

 

[Colie]

AZL this maybe off topic but since Nurmi cited the Milke case I was wondering what the following means by the AZ Supreme Court.

CV-14-0137-PR
(33)
STATE ex rel MONTGOMERY v HON. MROZ/SALDATE/MILKE
Court of Appeals, Division One 1 CA-SA 14-0028
ORDERED: RPI Saldate's Petition for Review of a Special Action Decision by
the Court of Appeals = CONTINUED.
FURTHER ORDERED: RPI Milke's Petition for Review of a Special Action
Decision of the Court of Appeals (Capital Case) = CONTINUED.
Justice Timmer did not participate in the determination of this matter.

Thank you in advance for your answer.

 

[AZlawyer]

Hi AZL.

When defendants want to represent themselves do they have to go through a competency hearing?

Would this be why LKN doesn't want the jury to know CMJA wanted to represent herself because it would show she's legally sane and he's going for "she's a nut job and doesn't know anything"?

They have to go through a competency hearing if there is any chance they might be incompetent. JA is clearly competent to stand trial, competent to represent herself, and legally sane. KN is not challenging and never has challenged any of those things. Mitigating mental illness is not the same as insanity or incompetence. There is no question she is sane and competent; there is equally no question that she has some mental illness.

AZL this maybe off topic but since Nurmi cited the Milke case I was wondering what the following means by the AZ Supreme Court.

CV-14-0137-PR
(33)
STATE ex rel MONTGOMERY v HON. MROZ/SALDATE/MILKE
Court of Appeals, Division One 1 CA-SA 14-0028
ORDERED: RPI Saldate's Petition for Review of a Special Action Decision by
the Court of Appeals = CONTINUED.
FURTHER ORDERED: RPI Milke's Petition for Review of a Special Action
Decision of the Court of Appeals (Capital Case) = CONTINUED.
Justice Timmer did not participate in the determination of this matter.

Thank you in advance for your answer.

It just means they didn't make a decision and pushed the case off to discuss another day.

 

[nyvictoria]

First, thanks AZlawyer for always keeping us well-informed. I've been away from trial coverage for a few months so I apologize if this is a repeat question. I was shocked to see JA was allowed to testify in secret. It just boggles the mind! If I understand correctly, she also refuses to be cross examined?!? Is this allowed? If it is, why/how?

 

[AZlawyer]

First, thanks AZlawyer for always keeping us well-informed. I've been away from trial coverage for a few months so I apologize if this is a repeat question. I was shocked to see JA was allowed to testify in secret. It just boggles the mind! If I understand correctly, she also refuses to be cross examined?!? Is this allowed? If it is, why/how?

It's not allowed and is clearly ridiculous. I refused to believe it myself until the AZ Court of Appeals confirmed Jodi was the secret witness. The AZ Ct App and AZ Supreme Court have now made it clear this is not OK. JSS would have allowed JM to strike Jodi's testimony, but he didn't want to, because IMO he wanted to be able to challenge it (as he has done) through other witnesses and exhibits.