What exactly will be covered during this "mini" trial? How far can she go? How long will it last?
I had posted this article on retrials previously last year on the Sidebar and saved it for my records and thought that others might benefit from it- so I'm posting it again. (hope no one minds)
I think it answers some questions that we might have about what retrials of the penalty phase might entail ( these lawyers are talking about a retrial after the verdict was death, but subsequently overturned on the penalty phase).
The lawyers that were questioned were not from AZ tho'. Don't know if this would make a difference in missy's retrial and, of course, now she will represent herself and who knows how much of the law she knows.
Well, just FYI:
Switching Juries in Midstream* : The Perplexities of Penalty-Phase-Only Retrials
"This article addresses the oft-recurring, but seldom analyzed scenario where
a capital conviction is affirmed, but the sentence is reversed, and the prosecutor
elects to retry the penalty phase before a new jury. There are not many doctrinal
issues raised in these circumstances, but there are a host of practical ones,
including: how the jury is to be apprised of the facts underlying the conviction;
whether the defense can challenge the underlying facts; how the long delay affects
the prospects for each party; how the defendants behavior in the interim may
affect the verdict; and many more....
"...
Moderator: These penalty-phase-only retrials must seem odd to the new jurors.
The judge instructs them that they have to abide by the guilty verdict, yet they have
not heard any of the evidence of guilt. Plus, it will soon come out when the date of
the offense is revealed that the case is yearssometimes decades old. What help
do jurors get in understanding the strange posture of the case?
Defense Attorney Britt: I always file a motion to preclude that a death sentence
was found at the first trial. That is always granted. But I think the jurors all
understand the case has been reversed and sent back, although that is not told to
them in any waythey figure it out. So in theory they do not know, but really
they do.
Defense Attorney Kerns: That is true. The jury is not supposed to know it is
coming back for resentencing. However, it is hard for them not to know. For
instance if the crime occurred in 1976 and the new jurors are sitting in 1998, they
must be asking themselves, How come I havent read about this is the paper?
The jury is not fooled.
Prosecutor Laeser: I agree also. The jury has to be told in very gentle terms that
another jury has already heard the trial evidence. If the judge says, I dont want
the jury to know hes been on Death Row for fifteen years, you have to fashion
your statements around that. But the dates have not been excised, so the jury
knows something is up. My assumption is that there are not twelve people stupid
enough not to figure out he has been sentenced to death before.....
Defense Attorney Kerns: Under Florida procedure, even a seven-to-five vote for
death results in a death recommendation to the judge.25 So it is very important for
the defense to ascertain in voir dire how much the jury knows about the first
sentencing case. Specifically, do they know how the first jury foundthat is, a
unanimous verdict, as opposed to a split verdict?
Prosecutor Morton: I agree that the new jury will figure out that the defendant
was previously sentenced to death. But in terms of what the new jury is likely to
know about the facts of the case, I think there is a distinction between populous
counties and smaller ones. If the case was tried years ago, in a populous county
like the one where I work, it is not likely to have jurors who remember the case.
So it is not that different than trying the case for the first time. But in smaller
counties, people will remember horrific crimes, publicity and all.
Moderator: Prosecutors,
how do you try to get the jury up to speed on the
guilt/innocence facts? Obviously, you want to do more than simply present the
prior verdict form showing the conviction. But do you need to re-present all the
guilt/innocence phase evidence, to the extent it is still available? ...
Prosecutor Laeser: In Florida when a case is sent back for resentencing, both
parties start from square one, except for the fact of conviction. Indeed, the
prosecution can even prove additional aggravating circumstance(s) beyond what it
presented at the original trial. Under Florida law, we do not labor under the
hearsay rule at the penalty phase, so in a penalty-phase-only retrial, I can put on
summary witnesses. I can use a lead investigator to summarize parts or all of the
investigationthis is important because it limits the cross-examination the defense
can do. So I could put up a very bare bones case, but I do not do that.
Strategically, I put on as much evidence as possible. To convince a jury that a
death sentence is appropriate is a difficult task. I have to put on as many important
witnesses as possible. I have to pull emotional heartstrings. This takes a huge
amount of pretrial preparation. Usually it is a very old case; witnesses memories
are not all that sharp. You do not like to refresh their recollection in front of a jury.
So it takes a lot of witness preparation.
Moderator: I must now break the flow of this discussion to put my law professor
hat back on and discuss the law with respect to the two doctrinally interesting
issues in this area of the law:
to what extent may a defendant attempt to challenge
the guilty verdict; and to what extent challenge a prior finding of an aggravating
circumstance?
With respect to a defendants attempting to undermine the prior guilty verdict,
the straightforward answer under the law of the case principle26 would seem to
be that a defendant is not permitted to do it, since the conviction was upheld on
appeal and is binding on the new jury. This is indeed the law in most
jurisdictions.27 ...
....Now, getting back to our panel discussion, I am sure you all agree that the
issues of law of the case and
residual doubt**** (see definition below) loom large with respect to
resentencings. From a practical standpoint, death penalty litigators know residual
doubt is a real and important phenomenon.49
The peculiar thing about the new jury
in a penalty-phase-only retrial is that they have no basis for having a residual
doubt, since they have not heard the guilt/innocence phase evidence. I am
guessing, though, that prosecutors still have to worry about the defense attempting
to inject doubt about the conviction, and any inherent aggravating circumstances.
Am I right about that?
Prosecutor Laeser: Even though the jurors are told they have to assume guilt,
some jurors are very hesitant to accept someone elses finding. Some feel they
have to be absolutely certain of guilt before assessing a death sentence. As a
practical matter, we usually do present enough evidence to persuade them, but we
do not take anything for granted.
Prosecutor Hawkins: We are quick to shut the door on any residual doubt theory
with an objection. Plus, defense lawyers have to be wary of losing their
credibility. If they have a mountain of evidence coming against them showing the
defendants guilt, they lose credibility if they nitpick the details. Also, if a jury
feels that a lawyer is wasting their time, the lawyer is going to lose credibility with
the jury....
http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/McCord-PDF-11-29-04.pdf
***Residual doubt in death penalty cases:
"Can a capital murder defendant recall an earlier alibi witness to testify about the defendant's guilt during the penalty phase of a first-degree murder trial? The plurality decision of the U.S. Supreme Court in Locket v. Ohio (438 U.S. 586, 604 1978) interpreted the Eighth and Fourteenth Amendments to allow a sentencer to consider "as a mitigating factor
any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (A majority of the Court adopted this plurality opinion in Eddings v. Oklahoma [102 S.Ct.869, 1982.])..."
http://www.apa.org/monitor/jun06/jn.aspx
AZ Law on residual doubt:
"RESIDUAL DOUBT/INNOCENCE
US Supreme court:
The Court set forth three factors that must be satisfied to justify a trial courts exclusion of residual doubt; evidence. To determine if evidence can be precluded under the States authority to set reasonable limits upon the evidence in order to achieve a more rational and equitable administration of the death penalty, ask:
Does the evidence concern how and not whether a defendant committed the crime (traditional sentencing considerations shed light on the manner in which the crime was committed and not whether it was committed);
Have the parties previously litigated the issue to which the evidence is relevant whether the defendant committed the basic crime (the law discourages collateral attacks of this kind); and
Will preclusion have a minimal adverse impact on the defendants ability to present his claim at sentencing (will some evidence of the claim have been presented to the jury at any point in any form)[1]
In all practicality, the Guzek opinion will support the decision of a trial judge to preclude residual doubt evidence whenever a capital defendant seeks to present evidence to a sentencing jury that he is actually innocent. But the trial judge will likely need to apply the test when making such a ruling.
D. Arizona Law:
1.
Case Law
In State v. Pandeli, our supreme court stated that it ha
not heretofore invoked residual doubt as a mitigating circumstance. 200 Ariz. 365, 380 (2001), judgment vacated and remanded on other grounds at 536 U.S. 953 (2002). The court has, however, referred to both lingering and residual doubt in its prior opinions. Review of these cases in light of Pandeli makes evident that the court has, despite its inconsistent use of nomenclature, actually considered doubts in two contexts: first, where there were claims of reasonable doubt concerning the defendants guilt; and second, where there were doubts about what weight to accord mitigating circumstances in light of the aggravating factors.
a. Reasonable Doubts About Guilt
In State v. Atwood, 171 Ariz. 576, 653 (1992), the Arizona Supreme Court rejected a capital defendants claim that there were lingering doubts about his guilt and that the trial court failed to find those doubts as a mitigating circumstance. In denying the claim, the Atwood court held that its review of the circumstantial evidence in the case demonstrated that the jurys verdict finding defendant guilty beyond a reasonable doubt [wa]s supported by sufficient evidence. 171 Ariz. at 653. Because of this fact, the trial court properly refused to find lingering doubt to be a mitigating circumstance sufficiently substantial to call for leniency. Id. In this context, the court was evidently using lingering doubt to describe a sentencing judges concern that the evidence did not prove the defendant to be guilty beyond a reasonable doubt. Other cases support this conclusion. See State v. Ring (I), 200 Ariz. 267 (2001) (when a defendant is found guilty beyond a reasonable doubt, supported and unfounded claims of actual innocence do not constitute mitigation for sentencing purposes. Even if residual doubt is a mitigating circumstance, on this record we are left with no residual doubt about Defendants guilt), reversed on other grounds at 536 U.S. 584 (2002); and see State v. Lehr, 201 Ariz. 509, 523 (2002) (court upholds trial judges finding that lingering doubt as to the actual commission of the murder had not been proven by a preponderance of the evidence), cert denied, 537 U.S. 1020 (2002); State v. Schackart, 190 Ariz. 238, 254 (1997) (Once a person is found guilty beyond a reasonable doubt, unsupported claims of innocence do not constitute mitigation for sentencing purposes), cert. denied, 525 U.S. 862 (1998); State v. Spears, 184 Ariz. 277, 295 (1996), cert. denied, 519 U.S. 967 (1996) (ecause . . . the jurys verdict finding defendant guilty beyond a reasonable doubt [wa]s supported by very strong evidence, the trial court properly refused to find the non-statutory mitigating circumstance of residual doubt); State v. Schad, 129 Ariz. 557, 573-74 (1981) (where there was sufficient evidence to support the verdict, there was no merit in [a] defendants contention that there was doubt of guilt), cert. denied, 455 U.S. 983 (1982).
b. Doubts About the Weight of Mitigation
Many parties cite to State v. Rockwell, 161 Ariz. 5 (1989) and State v. Verdugo, 112 Ariz. 288 (1975), in support of the argument that the Arizona Supreme Court has reversed death sentences on findings of residual doubt. This argument should be viewed cautiously. As noted above, Rockwell involved misgivings regarding the weight to be given compelling mitigation when weighing it against aggravating circumstances. When such doubts are present, the court concluded they should be resolved in favor of life. See Rockwell, 161 Ariz. at 16; accord State v. Valencia, 132 Ariz. 248 (1982). In Verdugo, the court addressed the sufficiency of the evidence to support the aggravating factor: grave risk to another. Because there was an accomplice to the crime in Verdugo, and there was insufficient evidence to prove that the defendant rather than the accomplice committed the act supporting the found aggravator, the supreme court reversed the trial judges determination that this aggravator had been proven beyond a reasonable doubt. The court did not consider the question of residual doubt of the defendants actual guilt.
This line of cases is the justification for presently instructing the jury that, where there is a doubt whether the death sentence should be imposed, you should resolve that doubt in favor of a life sentence. See Rockwell, 161 Ariz. at 16. Instructing the jury on lingering doubt is proper under Arizona law; however, the propriety of this instruction says nothing about the legitimacy of permitting evidence of, or providing an instruction on, residual doubt....
http://www.azcourts.gov/ccsguide/MitigatingCircumstances/RESIDUALDOUBTINNOCENCE.aspx
Maybe this "residual doubt" is missy's new mitigation????? :scared::scared:
--------------------------------
There is a lot more info than I have posted here (can't post the whole article).
These are very interesting articles- if you have time, read :book: them as they have helped me see what a retrial of the penalty phase might be (seen through the eyes of both prosecutors and DAs) and the second article about "residual doubt" is enlightening also as to what missy:jail: has up her sleeve- ssssssssssnake.:snake:
How long this retrial will last???
Your guess is as good as mine and mine is that it will last for months- so lets cook up some 
opcorn: and watch missy's:jail: last performance.:curtsey:
Can't wait.
