Jodi Arias Legal Question and Answer Thread *no discussion*

[trudy]

I've seen the video now of the "missed jury instruction." It is an instruction normally given during the AGGRAVATION phase, not the mitigation phase, and I don't know if it was really "missed" during the aggravation phase or not. It would be pretty strange to miss it, since it's the first one in the book of form instructions for that phase, and introduces the whole nature of both the aggravation and mitigation phases. If anyone has time to find the video of instructions for the aggravation phase, here's the one we're looking for (and it should be the first one!):

Members of the jury, I will now instruct you on the law governing these sentencing proceedings after a finding of guilt of first-degree murder.
The defendant in this case has been convicted of the crime of first-degree murder. Under Arizona law every person guilty of first-degree murder shall be punished by death, or imprisonment for life without the possibility of release from prison, or imprisonment for life with the possibility of release after 25 years.
This hearing may include as many as two phases. During this current phase, the jury decides whether any aggravating circumstances exist. If the jury unanimously decides beyond a reasonable doubt that at least one aggravating circumstance exists, then the second phase of the hearing begins.
If the State does not prove beyond a reasonable doubt that an aggravating circumstance exists, the judge will sentence the defendant to either life imprisonment without the possibility of release, or life imprisonment with the possibility of release after 25 years. If the jury unanimously decides beyond a reasonable doubt that an aggravating circumstance does exist, each juror will decide if mitigating circumstances exist and then, as a jury, you will decide whether to sentence the defendant to life imprisonment or death. If the sentence is life imprisonment then the judge will sentence the defendant to either life imprisonment without the possibility of release from prison, or life imprisonment with the possibility of release from prison after 25 years.
“Life without the possibility of release from prison” means exactly what it says. The sentence of “life without possibility of release from prison” means the defendant will never be eligible to be released from prison for any reason for the rest of the defendant’s life.

Now, you might have noticed that the instruction given yesterday added one sentence about there being no procedure in place currently to arrange for parole after 25 years. I frankly have no idea what this means, but it must be true since JM did not challenge that assertion. Nevertheless, IMO JM was also correct when he said that, if she gets to that 25-year point, she would have a legal right to MAKE the state get some procedure in place to consider her for parole.

The judge did not include this in the aggravating phase. In her instructions, she stated that the jury should not consider the penalty during this phase of the penalty phase. See video below


[video=youtube;L2Pk5ysQVp0]http://www.youtube.com/watch?v=L2Pk5ysQVp0[/video]


During the mitigation phase, the judge started by stating these were "preliminary instructions". The judge did not include anything about life vs life after 25 years.

Jodi Arias Penalty Phase - Day 1 - Part 1 - YouTube

Wonder if there was some disagreement about the instructions between the attorneys and the court and that is why she said it was preliminary. At the end of these instructions, the judge states something about giving them "final instructions" at some point.

 

[AZlawyer]

The judge did not include this in the aggravating phase. In her instructions, she stated that the jury should not consider the penalty during this phase of the penalty phase. See video below


Jodi Arias Aggravation Phase - Part 1 - YouTube


During the mitigation phase, the judge started by stating these were "preliminary instructions". The judge did not include anything about life vs life after 25 years.

Jodi Arias Penalty Phase - Day 1 - Part 1 - YouTube

Wonder if there was some disagreement about the instructions between the attorneys and the court and that is why she said it was preliminary. At the end of these instructions, the judge states something about giving them "final instructions" at some point.

Thanks--I will watch these when I have time.

"Preliminary" instructions just means that they are given at the start of a phase of trial. "Final" instructions are given at the end of a phase just before deliberations.

 

[hindsight2020]

Will JA be appointed new defense attorneys for retrial and/or a new judge?

 

[AZlawyer]

Will JA be appointed new defense attorneys for retrial and/or a new judge?

No, and she won't be retried. The new jury will consider only the "death v. life" question--they will be instructed to accept the verdicts of premeditated 1st degree murder and cruelty.

I thought (see my previous comments) that a new jury would not be personally "attached" to the prior verdicts and therefore would be likely to vote for life, but my law partner directed me to a recent AZ Republic article:
http://www.azcentral.com/news/arizona/articles/20130522arizona-juries-that-couldnt-decide-on-death-penalty-prog.html.

Apparently this situation has come up 5 times in Maricopa County. In 4 of the cases, the state asked for a new jury (rather than just asking for a life sentence). In 3 out of those 4 cases, the new jury gave death. In the other case, the second jury was also hung, so the defendant got life.

ETA: One caveat. Although the retrial will "only" concern the penalty phase, don't expect it to go as quickly next time. The new jury will have to hear a lot more evidence than this one, because (1) mitigation evidence was presented during the guilt phase to the old jury, including evidence of mental disorders, and (2) it is impossible to balance mitigating evidence against aggravating evidence and the nature of the crime without knowing the aggravating evidence and the nature of the crime first.

 

[ggrtist]

I am sorry if I missed this but will Jodi be allowed to testify about her version of what happened when she murdered Travis and claim abuse to the new jury for sentencing retrial...even though that relates to the guilt phase which she was convicted? I hope not, it would be horrible for his family to have to hear her spew more lies.

 

[Timber]

No, and she won't be retried. The new jury will consider only the "death v. life" question--they will be instructed to accept the verdicts of premeditated 1st degree murder and cruelty.

I thought (see my previous comments) that a new jury would not be personally "attached" to the prior verdicts and therefore would be likely to vote for life, but my law partner directed me to a recent AZ Republic article:
http://www.azcentral.com/news/arizona/articles/20130522arizona-juries-that-couldnt-decide-on-death-penalty-prog.html.

Apparently this situation has come up 5 times in Maricopa County. In 4 of the cases, the state asked for a new jury (rather than just asking for a life sentence). In 3 out of those 4 cases, the new jury gave death. In the other
case, the second jury was also hung, so the defendant got life.

ETA: One caveat. Although the retrial will "only" concern the penalty phase, don't expect it to go as quickly next time. The new jury will have to hear a lot more evidence than this one, because (1) mitigation evidence was presented
during the guilt phase to the old jury, including evidence of mental disorders, and (2) it is impossible to balance mitigating evidence against aggravating evidence and the nature of the crime without knowing the aggravating evidence and the nature of the crime first.

Thank You AZlawyer.
So good to have your experience & knowledge of AZ law here to help folks like me understand what is to come.

Praying for the Alexander Family. May our Lord comfort them & give them the strength to get thru the next phases.
They need time now back at their homes with their wife's/husbands, children, and loved ones. They have till that July date set by the judge to re-charge themselves to gather strength to go thru Travis's horrendous murder all over again with a new jury.
I cannot even imagine what pain they are feeling now.

 

[AZlawyer]

I am sorry if I missed this but will Jodi be allowed to testify about her version of what happened when she murdered Travis and claim abuse to the new jury for sentencing retrial...even though that relates to the guilt phase which she was convicted? I hope not, it would be horrible for his family to have to hear her spew more lies.

Yes, she will be able to testify about those things, because the abuse is mitigating evidence and the circumstances of the crime are to be considered by the jury in determining whether the mitigating evidence calls for leniency.

 

[Hope4More]

Will JM be able to use any of her post-verdict interviews if there is a do-over?

 

[cocomod]

I know that JA is too selfish to do this, but could the prosecution and DT plea bargain at this time to prevent a new jury for the sentencing phase? My thoughts are that even though I believe she deserves the death penalty due to her lack of compassion for the victim, wouldn't it be better for the Alexander family if the prosecution offered LWOP in exchange for JA agreeing not to go for any appeals.

 

[Ricki]

Yes, she will be able to testify about those things, because the abuse is mitigating evidence and the circumstances of the crime are to be considered by the jury in determining whether the mitigating evidence calls for leniency.

What happens if she tries to add things or change her story. We know during her interviews she added things like she was covered with bruises. How far can she actually go with the abuse story.

 

[cosmos]

As for the hung jury procedure, a defendant can't appeal a proceeding that ends with a hung jury, because the defendant hasn't been harmed by that proceeding.

I understand why that is true during a guilt phase. When the burden of proof is on the state and a mistrial is granted as the remedy for a hung jury, then the absence a conviction does not harm the defendant. Therefore, there is nothing for the defense to appeal.

But in the penalty phase the burden is on the defendant. A hung jury is a verdict that she failed to meet that burden and makes her subject to facing the death penalty in a new trial where new evidence not permissible in the first trial might be introduced. So, supposing for sake of argument that some serious and harmful error might have occurred during the original penalty phase, why is the defense not allowed to seek and obtain an injunction pending appeal over that verdict before she can be sentenced to death in another trial?

 

[kscornfed]

so AZ.

8-4 split. you really think the county attorney will go for another round with that?

 

[PPKik]

I've seen the video now of the "missed jury instruction." It is an instruction normally given during the AGGRAVATION phase, not the mitigation phase, and I don't know if it was really "missed" during the aggravation phase or not. It would be pretty strange to miss it, since it's the first one in the book of form instructions for that phase, and introduces the whole nature of both the aggravation and mitigation phases. If anyone has time to find the video of instructions for the aggravation phase, here's the one we're looking for (and it should be the first one!):

Members of the jury, I will now instruct you on the law governing these sentencing proceedings after a finding of guilt of first-degree murder.
The defendant in this case has been convicted of the crime of first-degree murder. Under Arizona law every person guilty of first-degree murder shall be punished by death, or imprisonment for life without the possibility of release from prison, or imprisonment for life with the possibility of release after 25 years.
This hearing may include as many as two phases. During this current phase, the jury decides whether any aggravating circumstances exist. If the jury unanimously decides beyond a reasonable doubt that at least one aggravating circumstance exists, then the second phase of the hearing begins.
If the State does not prove beyond a reasonable doubt that an aggravating circumstance exists, the judge will sentence the defendant to either life imprisonment without the possibility of release, or life imprisonment with the possibility of release after 25 years. If the jury unanimously decides beyond a reasonable doubt that an aggravating circumstance does exist, each juror will decide if mitigating circumstances exist and then, as a jury, you will decide whether to sentence the defendant to life imprisonment or death. If the sentence is life imprisonment then the judge will sentence the defendant to either life imprisonment without the possibility of release from prison, or life imprisonment with the possibility of release from prison after 25 years.
“Life without the possibility of release from prison” means exactly what it says. The sentence of “life without possibility of release from prison” means the defendant will never be eligible to be released from prison for any reason for the rest of the defendant’s life.

Now, you might have noticed that the instruction given yesterday added one sentence about there being no procedure in place currently to arrange for parole after 25 years. I frankly have no idea what this means, but it must be true since JM did not challenge that assertion. Nevertheless, IMO JM was also correct when he said that, if she gets to that 25-year point, she would have a legal right to MAKE the state get some procedure in place to consider her for parole.

As I ask you this question, I recently found out the jury is hung. I almost feel funny about asking now. I am saddened and shocked that this ordeal is not over yet for the Alexanders, but still would like to try to understand this part of the instructions because I wonder if the instructions may have resulted in a hung jury. The sentence about "there being no procedure in place to arrange for parole after 25 years" makes no sense.

When I first heard that, I thought I had mis-heard. Now I am not sure where it was that I heard this. I realize you don't understand this either, but do you know if this is atypical or this part of all jury instructions in Arizona in capital cases?

I thought the difference between LWOP and 25 to life was that at 25 (or 20) years, CKJA, or anyone with that sentence could ask or petition for parole.

Do you understand or know if these strange instructions are for this convicted defendant only? How could the state not have a "procedure" in place for this kind of sentence? She can't be the only killer in this situation.

I find it very unsettling that after being convicted of "extreme cruelty," there is even a sentencing option of 25 to life. I have a strong feeling that if the possibility of 25 to life had not been an option for the judge, even without the confusing part about "no procedure for parole," the jury may have had an easier time making a decision.

Thank you for any help you may be able to give to help me and others understand this.

 

[Cricket99]

Can the lawyers use the 3 alternates in the new penalty phase? Will the new jury be chosen by July 18 or is that date the start of jury selection? If the jury finds Life she never gets parole, correct? Only the judge can give her 25 to life if another hung jury? Thanks so much

 

[AZlawyer]

Will JM be able to use any of her post-verdict interviews if there is a do-over?

If they are relevant to some point, yes.

I know that JA is too selfish to do this, but could the prosecution and DT plea bargain at this time to prevent a new jury for the sentencing phase? My thoughts are that even though I believe she deserves the death penalty due to her lack of compassion for the victim, wouldn't it be better for the Alexander family if the prosecution offered LWOP in exchange for JA agreeing not to go for any appeals.

Yes, there can be a plea agreement at this point. I do think LWOP would be best for the Alexander family, but I don't think THEY think that, so it really isn't my place to impose my opinion on them.

Yes, she will be able to testify about those things, because the abuse is mitigating evidence and the circumstances of the crime are to be considered by the jury in determining whether the mitigating evidence calls for leniency.

What happens if she tries to add things or change her story. We know during her interviews she added things like she was covered with bruises. How far can she actually go with the abuse story.

She can add to/change her story, but of course JM can cross-examine her with her previous testimony.

Good luck to JA trying to tell the same lies twice.

I understand why that is true during a guilt phase. When the burden of proof is on the state and a mistrial is granted as the remedy for a hung jury, then the absence a conviction does not harm the defendant. Therefore, there is nothing for the defense to appeal.

But in the penalty phase the burden is on the defendant. A hung jury is a verdict that she failed to meet that burden and makes her subject to facing the death penalty in a new trial where new evidence not permissible in the first trial might be introduced. So, supposing for sake of argument that some serious and harmful error might have occurred during the original penalty phase, why is the defense not allowed to seek and obtain an injunction pending appeal over that verdict before she can be sentenced to death in another trial?

A hung jury is not any kind of verdict at all, and there won't be evidence allowed in the new penalty phase that was not permissible in the first penalty phase. The same rules will apply.

so AZ.

8-4 split. you really think the county attorney will go for another round with that?

Yes.

As I ask you this question, I recently found out the jury is hung. I almost feel funny about asking now. I am saddened and shocked that this ordeal is not over yet for the Alexanders, but still would like to try to understand this part of the instructions because I wonder if the instructions may have resulted in a hung jury. The sentence about "there being no procedure in place to arrange for parole after 25 years" makes no sense.

When I first heard that, I thought I had mis-heard. Now I am not sure where it was that I heard this. I realize you don't understand this either, but do you know if this is atypical or this part of all jury instructions in Arizona in capital cases?

I thought the difference between LWOP and 25 to life was that at 25 (or 20) years, CKJA, or anyone with that sentence could ask or petition for parole.

Do you understand or know if these strange instructions are for this convicted defendant only? How could the state not have a "procedure" in place for this kind of sentence? She can't be the only killer in this situation.

I find it very unsettling that after being convicted of "extreme cruelty," there is even a sentencing option of 25 to life. I have a strong feeling that if the possibility of 25 to life had not been an option for the judge, even without the confusing part about "no procedure for parole," the jury may have had an easier time making a decision.

Thank you for any help you may be able to give to help me and others understand this.

As I mentioned, that sentence about "no procedure in place" is not in the form instruction. I still don't know what it means. Why wouldn't the normal parole procedure apply? But JM is correct that, if she got 25-to-life, the state would have to come up with a parole procedure in 25 years if it didn't already have one.

Can the lawyers use the 3 alternates in the new penalty phase? Will the new jury be chosen by July 18 or is that date the start of jury selection? If the jury finds Life she never gets parole, correct? Only the judge can give her 25 to life if another hung jury? Thanks so much

No, the alternates are out now. I assume July 18 will be the start of jury selection.

If the jury votes life, the judge still has the option of 25-to-life or LWOP.

 

[LinTX]

Any possibility of a new judge for the next one, or does JSS see it to the end?

 

[deb2e]

az lawyer thank you for answering my questions...I just heard Jodi can get back up on the stand if they do penalty again to give her testimony on abuse ..can she add to her testimony or say different things embellish it. why don't they just play back tapes of her on the stand?

 

[katiewonders]

AZlawyer, I'm copying a question posted a couple pages back. I haven't seen it answered (sorry if I missed it).

The previous question:

Ooooh, sorry. I just thought of another question.
Yesterday Arias stated as fact the reason her childhood friend refused to testify was because of threats.
The judge left the portion the DT wanted stated to the jurors off, but then Arias states it. It sems to be something Jan was unable to tell the other side of the story. Is that true?
If so, why was Arias allowed to bring up something Juan had no legal way to correct?

Could have Arias disclosed conversations that took placed behind closed door hearings?
Could she have said she thought JS was biased?
ECT.

What exactly WERE her limits?

 

[AZlawyer]

Any possibility of a new judge for the next one, or does JSS see it to the end?

JSS should be on the case until the end, although of course there are a dozen or so things that could come up that would change that, ranging from normal judge rotations every few years in June (I haven't kept track to see if we're due, but in any event I think they'd keep judges on DP cases as an exception) to accusations of bias.

That was a run-on sentence, sorry.

az lawyer thank you for answering my questions...I just heard Jodi can get back up on the stand if they do penalty again to give her testimony on abuse ..can she add to her testimony or say different things embellish it. why don't they just play back tapes of her on the stand?

Yes, she can embellish, and JM can use her prior testimony to cross-examine her.

AZlawyer, I'm copying a question posted a couple pages back. I haven't seen it answered (sorry if I missed it).

The previous question:

Ooooh, sorry. I just thought of another question.
Yesterday Arias stated as fact the reason her childhood friend refused to testify was because of threats.
The judge left the portion the DT wanted stated to the jurors off, but then Arias states it. It sems to be something Jan was unable to tell the other side of the story. Is that true?
If so, why was Arias allowed to bring up something Juan had no legal way to correct?

Could have Arias disclosed conversations that took placed behind closed door hearings?
Could she have said she thought JS was biased?
ECT.

What exactly WERE her limits?

I answered that one a couple of pages back--twice, I think, because there was a clarification question. If it was your question, try using "search this thread" and searching for your own user name.

 

[trudy]

If the State decided to take the death penalty off the table, are there any sentencing guidelines the judge must abide that could result in life with parole after 25 years?