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May 20, 2013

Notable developments in penalty phase of Jodi Arias' capital trial

As reported in this new USA Today article, the "sentencing hearing for convicted killer Jodi Arias ground to a halt Monday when her lawyers refused to call any witnesses and a judge refused their requests for a mistrial and to withdraw from the case." Here is more:

Judge Sherry Stephens stopped proceedings and released the jury for the day, telling them to return Tuesday morning. Defense attorney Kirk Nurmi later said he will allow Arias to speak to the jury Tuesday.

Nurmi clashed with Stephens over a motion he filed seeking a mistrial in the sentencing hearing. Nurmi said a witness who was supposed to testify regarding Arias' character had been threatened and was refusing to testify. Patricia Womack has been receiving "threats on her life if she were to testify on Ms. Arias' behalf," Nurmi wrote in the mistrial motion.

But Stephens refused his motion, saying she could not determine why Womack would not testify because she was not present in the courtroom. Nurmi and co-counsel Jennifer Willmott then asked to drop out of the case. Stephens again refused.

Nurmi then refused to present any witnesses, and Stephens called for the recess. Nurmi later said Arias will speak Tuesday. Also previously scheduled to testify on Arias' behalf was a former boyfriend of Arias'.

Arias, 32, was found guilty May 8 of first-degree murder for the 2008 slaying of Travis Alexander, 30, who was found dead in his suburban Mesa, Ariz., home. He had been shot in the head and stabbed nearly 30 times, and his throat was slit. Arias said she killed Alexander, her secret lover, in self-defense; the jury thought otherwise.

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Travis Alexander's brother and sister as they described how his killing has torn their lives apart.

Now the jury is to consider mitigating factors — evidence about Arias' character and background that may sway them not to impose a death sentence. Stephens instructed jurors that they could consider a handful of factors when deciding what sentence to impose, including Arias' lack of a prior criminal record and assertions that she was a good friend, had an abusive childhood and is a talented artist....

Under Arizona law, if the jury cannot reach a unanimous decision on sentencing, the panel would be dismissed and a new jury would hear arguments and determine a sentence. If the second panel cannot reach a unanimous agreement, the judge then would sentence Arias....

Earlier this week, her lawyers asked to be allowed to step down from the case, but a judge denied the request. Legal experts say the decision was not a surprising one because the lawyers have a conflict of interest with their efforts to save her life after Arias said she would rather die.

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May 20, 2013 at 03:34 PM | Permalink


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Do the attorneys really have a duty to advocate for LWOP? A lawyer is supposed to advocate for the client, which presumably means they must assume the values of the client; not their own, not the courts, not societies. If the client wants to die, and indeed feels this is a LESSER punishment than LWOP (a reasonable position to hold, especially for someone so young), then isn't it the attorneys' job to advocate for that? There is no conflict of interest at all, and frankly the attorney is committing malpractice by not advocating for what the client wants unless they feel she isn't competent to make that decision in which case they shouldn't be proceeding anyway until she is made competent.

Posted by: Matt | May 20, 2013 7:39:08 PM

I agree with Matt. I can't tell whether Ms. Nicey really wants the DP; she says so, but there is nothing she hasn't lied about, so it's hard to tell.

But if that is her stated position, the lawyers must adopt it. They cannot exit the case simply because their personal view of punishment differs from hers. As Matt says, they are there to represent the client, period.

I must say, I have never heard of a case where the defense couldn't even persuade the mother, or best friend, or a college chum, or someone, anyone, to testify in the penalty phase. It's not that the defense is "refusing" to call witnesses; it's that they can't FIND any witnesses.

Ms. Nicey must be a real piece of work.

Posted by: Bill Otis | May 20, 2013 8:37:37 PM

The defense lawyers should have filed a motion to exclude cameras and then refused to partipate in court if the judge allowed the trial to be show tried.

Posted by: liberty1st | May 20, 2013 10:45:06 PM

liberty 1st --

Lawyers cannot simply "refuse to participate" because a motion of theirs gets denied. A trial, particularly one of this length, has dozens or hundreds of motions, and one side or the other loses every one of them. To allow lawyers to walk off in a huff because they lose a motion is the road to chaos. No trial could be completed.

It is for that reason that, if her lawyers had "refused to participate," they could and would have been held in contempt. Had I been the judge, I would have ordered them to continue, and told them that the nature of the contempt sanction would depend on their behavior from then on. Then, after the jury rendered its sentence and everything was wrapped up, I would have hit them with a fine big enough to remind them that (1) you don't walk out because you lose and get huffy, and (2) counsel are officers of the court and are expected to behave as such.

Posted by: Bill Otis | May 21, 2013 7:36:20 AM

I am wondering what if any factual support there is for the motion for mistrial. If there is actually evidence that somebody out there is threatening a witness with violence, that would be a crime in most states and there are remedies that the court could take short of a mistrial (e.g. excluding cameras and the media for the defense witnesses to keep the names out of the immediate public record).

On the other hand, I am thinking that we are seeing a variation on the typical approach of building in error and IAC claims just in case the jury returns the death penalty.

Posted by: tmm | May 21, 2013 9:48:40 AM

tmm --

Many witnesses don't want to testify for one reason or another. The answer is to send them a subpoena. The government all the time calls witnesses who very realistically fear for their lives (and some of whom do wind up dead).

The thing that struck me is that, so far as the news story reveals, the defense lawyers did not even offer an affidavit from this witness about her supposed fear. They simply asserted (not under oath, which is appropriate because the lawyers cannot be witnesses) that the prospective witness did not want to appear. That is not even close to being grounds for a mistrial (or anything else that I know about).

I think you put your finger on it. Ms. Nicey's lawyers realize she's headed for the DP and want to pull any stunt they can to avoid it. The truth, I very strongly suspect, is that there IS no witness out there. When you can't even get the defendant's mother to testify in the penalty phase, that tells you a great deal about what kind of person the defendant is (as if we needed a whole lot more at this point).

I thought another tipoff was counsels' motion to withdraw. Good grief. It just happens they want to withdraw approximately 24 to 72 hours before the death verdict comes down. Talk about rats deserting the ship!

This case has been a wonderful display of what actually goes on, as opposed to what these multitudinous SSRN articles say goes on. We have the usual mix: A thoroughly guilty and lying defendant; absurd defense witnesses (e.g., the "expert" who wrote about Snow White as "an abused woman"); and defense lawyers who are actually doing as good a job as they can, given the facts and the client, but want to pull some stunt at the end now that they see that everything else has failed.

It's an education for all those who say that we get bad outcomes for the defendant because the cops are lying, the prosecutor's a fascist, and the defense lawyers are drunk. What baloney. Everyone can see for himself why Ms. Nicey is headed for her fate, and it's none of those things.

Posted by: Bill Otis | May 21, 2013 10:22:38 AM

Lafler-able or simply

Posted by: Adamakis | May 21, 2013 10:34:44 AM

If there was ever an offer for LWOP or straight life on the table, I am willing to channel Johnny Carson as Carnac to predict a Lafler claim will be made in state and federal court with Ms. Arias's new attorneys arguing on the one hand that any competent attorney would have advised Ms. Arias that she would get the death penalty after trial while arguing on the other hand that if trial counsel had just put on the appropriate psychologists and life history, etc., that the jury would not have imposed the death penalty.

Posted by: tmm | May 21, 2013 12:53:31 PM

tmm (or is it Carnac?) --

Just as Ms. Nicey has been willing to say anything now, I'm sure she'll be no less willing to say anything in the future. But she'll have a hard time convincing a court that a competent attorney would have told her that the DP was likely. Almost no white females get the DP; the statistical chance of such a defendant getting the DP is real low. Even a clairvoyant defense lawyer would have a hard time predicting that his client was such a loser that her own mother wouldn't testify for her.

As to a better bunch of shrinks: You may well be right about that. I've seen many more convincing liars than the "expert" the defense put on here. Ms. Nicey needed more than Snow White -- I think Little Red Riding Hood would have rounded out the defense.

Posted by: Bill Otis | May 21, 2013 1:35:15 PM

Bill, I am only predicting that a Lafler claim will be made. I doubt collateral review attorneys in Arizona are any different than collateral review attorneys in other states or in the federal system, and inmates (and their new attorneys) seem willing to make any IAC claim available, particularly in DP cases, regardless of the chances of success. And given the current hit and miss of the Supreme Nine on prejudice in capital cases, I dare not predict when an IAC claiming weak mitigation will succeed, although the Arias attorneys are doing their best to lay the groundwork to fall on their swords and assist that claim.

Posted by: tmm | May 21, 2013 2:01:31 PM

This case had made me wonder something.

What is the actual duty of a defense attorney when the client wishes to pursue a defense that the lawyer has to know from the outset is a loser?

I wonder this because the lawyers made a total gamble on acquittal by way of self defense when they had to know there was no evidence to back up such a claim. A claim of imperfect self defense or mental defect would have been far more likely to succeed, even if it did mean their client ended up with convictions for something
Even in the penalty phases they seem to vbe pursuing this line at Ms. Arias' direction, yet it seems the sort of thing that would just alienate the jury even more.

Posted by: Soronel Haetir | May 21, 2013 4:22:10 PM

Soronel --

"What is the actual duty of a defense attorney when the client wishes to pursue a defense that the lawyer has to know from the outset is a loser?"

Those who have been defense lawyers are probably better positioned to answer your question than I am, but my take on it is this: The lawyer should tell the client that the defense is a disaster and the quick road to a conviction. If the client persists, the lawyer has two choices: Resign, or tell the client that you'll do your best under the instructions given, but that your best is very likely not to be good enough, and that the client should carefully consider whether he wants to hire someone else.

Posted by: Bill Otis | May 21, 2013 4:47:11 PM

We Americans, on behalf of the Exceptional Country, prosecuted Germans and other Nazis of other nationalities at Nuremburg in two separate tribunals. There is one set of trials called The Judges' Trial. If you Google it you can find out about it. Books have been written by participants including Whitney Harris, Tyrnanny On Trial. A "Show Trial" like this Jodi tv trial would possibly cause the Judges and lawyers who participated to be prosecuted. This TV extravaganza is beyond the Pale. Bill Otis in his comment above thinks that lawyers should just role over when the case gets to this point. When Jodi is dead her lawyers may have second thoughts about participating in this farce and giving it some sort of phony dignity by their participation. I wish Whitney was alive. He lived to a ripe old age in Saint Louis and advised young lawyers on how to conduct themselves.

Posted by: liberty1st | May 23, 2013 12:31:37 AM

"liberty [tyranny?] 1st" / liberty last [alt]:

We were blessed at the time of Nuremberg to have a higher preponderance of rational theists
who believed that truth exists and is knowable. Such an absolutist epistemology necessarily
encompasses innocence and guilt as meaningful concepts. Good and evil in the Judeo-
Christian, biblical sense, and credence in a literal Heaven and Hell, complemented the
belief system of many more of the officials in power at the time.

As Terry Moran of ABC noted during the Iraq War, nothing like Nuremberg -- with its logical presuppositions
regarding absolute truth, guilt and innocence, et al -- should even exist in the post-modern Western world,
so that it would be most unlikely for Saddam Hussein or his sort to be roundly sentenced to death therein.

Thanks to relativistic, arguably nihilistic scorners such as yourself, "liberty/tyranny", the imperfect Nuremberg trials
appear as divine justice compared to the farcical show trial extravaganzas prevalent today -- not so much in
America -- but in Marxist paradises such as North Korea and Venezuela.

"a future state of rewards and punishments...never can be a matter of indifference in any well-ordered community.
It is, indeed, difficult to conceive how any civilized society can well exist without [it]...
-- -- Joseph Story, 1840 A Familiar Exposition of the Constitution of the United States

Posted by: Adamakis | May 23, 2013 11:11:43 AM

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