Of course she can help the way she behaves!!! Not all BPD people murder in jealous rages. A personality disorder does not even come close to what is considered legal insanity. Some BPDs benefit from counseling. Jodi even admits in her tests some of the traits, so if she is aware of them, she can control them.
The state only has to prove one aggravating factor beyond a reasonable doubt, which is a done deal: A.R.S. § 13-751(F).
Here, in the penalty phase, the defense is allowed to offer mitigating circumstances, but they must be ones codified in A.R.S. § 13-751(G) - Sentence of death or life imprisonment; aggravating and mitigating circumstances; definition.
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/00751.htm&Title=13&DocType=ARS.
In proffering mitigation, the
burden of proof is on the defendant and the standard is lower than beyond a reasonable doubt; instead the DT's burden is
by a preponderance of the evidence (more likely than not or some say at least by 51%). The mitigating factors they can consider are as follows:
A.R.S. § 13-751(G). The trier of fact 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, including any aspect of the defendant's character, propensities or record and any of the circumstances of the offense,
including but not limited to the following:
1. The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
2. The defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.
3. The defendant was legally accountable for the conduct of another under the provisions of section 13-303, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.
4. The defendant could not reasonably have foreseen that his conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.
5. The defendant's age.
Jurors do not have to agree on which one, just that there is one:
A.R.S. § 13-751(C) ...If the trier of fact is a jury, the jurors do not have to agree unanimously that a mitigating circumstance has been proven to exist. Each juror may consider any mitigating circumstance found by that juror in determining the appropriate penalty.
And here's the kicker: A.R.S. § 13-751(E)
E. In determining whether to impose a sentence of death or life imprisonment, the trier of fact shall take into account the aggravating and mitigating circumstances that have been proven. The trier of fact
shall impose a sentence of death if the trier of fact finds one or more of the aggravating circumstances enumerated in subsection F of this section and then determines that there are no mitigating circumstances
sufficiently substantial to call for leniency.
Shall means mandatory, not optional.
Looks like Arizona uses the ALI Model Penal Code test for legal insanity.
http://criminal.findlaw.com/criminal-procedure/the-model-penal-code-test-for-legal-insanity.html
As to mitigating circumstance (1), your fear that she could not appreciate the wrongfulness (criminality) of her actions or she could not conform her conduct to the law is rebutted by the fact she premeditated, lied and took other actions to cover up the crime because she understands the difference between right and wrong.
In addition, because BPD, while referred to as a mental illness, is still a personality disorder and not on the level with the type of mental illness, like schizophrenia, that would cause an irresistible impulse. In addition, I believe that the diagnosis of a mental disease or defect that would cause an someone to lack control of an implies must be diagnosed by a licensed professional, and I might have missed it, but don't remember any experts testifying it was impossible for JA to control her violent impulse to kill. Besides, if it was planned, it wasn't an impulse, right?
So, that leaves the jury with either:
2. The defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.
or
5. The defendant's age.
That is why they are relying SO MUCH on convincing a juror that TA was not only the first aggressor, but a terror, an abuser, sexually deviant, manipulator - so much so that JA was under unusual and substantial (that's an AND, not an OR) duress.
However, I did see an old interview with one of the original jurors where she opined it wasn't Jodi's gender as much as her age, that caused reluctance to impose the DP.
I am learning so much about the AZ Rules of evidence...use every day as an opportunity to learn something new
all BBM and all stated "in my opinion."
