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August 5, 2014

Is Jodi Arias really going to represent herself at her Arizona death penalty retrial?

The question in the title of this post is prompted by this new report from Arizona headlined "Jodi Arias to represent self in Arizona death penalty sentencing retrial." Here are the basics:

An Arizona judge agreed on Monday to allow convicted murder Jodi Arias to represent herself during a sentencing retrial to determine if she will face the death penalty for killing her ex-boyfriend in 2008, a court spokesman said.

Judge Sherry Stephens granted the request by Arias during a hearing in Maricopa County Superior Court, allowing her to act as her own lawyer when the retrial begins in September, said spokesman Vincent Funari.

Stephens issued the ruling from the bench after cautioning the former California waitress that she felt it would not be in her best interest to take over from her current attorneys, Funari said.

Arias was convicted last year of murdering Travis Alexander in his Phoenix-area home six years ago in what authorities said was a bloody crime scene. He was found slumped in his shower, stabbed multiple times, his throat slashed and shot in the head.

The same jury that convicted Arias in a high-profile trial that was live-streamed on the Internet to tens of thousands of viewers found her eligible for the death penalty, but deadlocked on whether she should actually be put to death.

The sentencing phase retrial will see a new jury impaneled next month to weigh her fate, but will not be broadcast live. If the new jury also deadlocks on capital punishment, a judge will sentence Arias to spend either her natural life in prison, or life with the possibility of parole after 25 years.

Monday's decision came during a rare open session in the case, which has mostly been argued in recent months behind closed doors. Funari said while Arias will represent herself, her current attorneys will act as advisory counsels.

Some prior posts on the Arias case:

August 5, 2014 at 03:30 PM | Permalink


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I suppose the question hasn't been litigated specifically about penalty phase representation but I would actually think that would only make the bar higher as now we are talking about an adjudged criminal and not merely a defendant.

Posted by: Soronel Haetir | Aug 5, 2014 4:51:14 PM

She is reserving her reversible error of inadequacy of representation. She will not pass the two-pronged Strickland test, but may reach the Padilla standard.

Lawyer question.

If an appellate court rules there was inadequacy of representation, is that per se evidence of lawyer malpractice? Has any representation ruled to have been inadequate resulted in a malpractice claim and settlement? I know that question is not relevant here.

Posted by: Supremacy Claus | Aug 5, 2014 5:33:12 PM

Sad to say, but she may feel she can do as good as the avg bozo lawyer that shows up
With a contract and his pocket full of money before he even breathes in the direction of the client.

Posted by: Midwest Guy | Aug 5, 2014 9:20:29 PM

I don't think Ms. Arias is preserving an IAC claim. Instead, she is setting up a catch-22 situation. If the court finds that she is not properly waiving her right to counsel, she gets to claim on appeal that the trial court erred by not allowing her to represent herself. If the court finds that she is properly waiving her right to counsel, she gets to claim on appeal that the trial court did not conduct a proper hearing before letting her represent herself. Either way the trial court rules, she gets to claim error on appeal. (There are also some inmates who mistakenly believe that they automatically get a second trial if they do not have counsel even if they waived the right to counsel).

Posted by: tmm | Aug 6, 2014 9:28:59 AM


She can claim whatever she wants on appeal but I am under the impression that the bar for denying self-representation is quite high. And that the mere fact that an attorney likely would have done a better job (reserving issues for appeal for instance) is not even supposed to factor into the analysis. Am I wrong in that understanding?

And if I am not mistaken what choice did the judge have but to allow her to represent herself?

(I actually meant to have most of that in my first comment but erased it at some point without noticing).

Posted by: Soronel Haetir | Aug 6, 2014 11:38:36 AM


The bar for denying self-representation is quite high if the trial court gives adequate advice during the Faretta hearing (and the case law is rather ambiguous on what constitutes adequate advice). That's where the catch-22 comes in.

If the trial court grants the request, some appellate judges will find a reason why the advice was inadequate because they think that a result obtained without counsel is inherently unfair (see the underlying decision from Iowa in Iowa v. Tovar). If the trial court denies the request, you have built-in structural error (see Faretta). The mere making of the request creates a situation where the trial court has to thread a very narrow passageway with dangerous waters on both sides, particularly since habeas review will go through the Ninth Circuit.

Posted by: tmm | Aug 6, 2014 3:39:08 PM

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