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May 24, 2013

Would a death sentence given by a second sentencing jury to Jodi Arias survive constitutional challenges?

As reported in this Reuters article, an "Arizona jury failed on Thursday to reach a unanimous verdict on whether Jodi Arias should be put to death for the brutal murder of her ex-boyfriend, prompting the judge to set a date for a new sentencing phase of the trial."  Here is more on the latest development in this high-profile capital case:

Arias, a former waitress from California, was found guilty this month of murdering Travis Alexander, whose body was found slumped in the shower of his Phoenix-area home in June 2008. He had been stabbed 27 times, had his throat slashed and been shot in the face.

Maricopa County Superior Court Judge Sherry Stephens, who had told the jury on Wednesday to resume deliberations after the panel indicated it was struggling to reach consensus, set July 18 as the date for a retrial of the penalty phase and ordered a status hearing for June with attorneys in the case.

Arias, a petite figure who had earlier pleaded with the eight men and four women on the jury to spare her life for the sake of her family, appeared to breathe a sigh of relief. Alexander's relatives wept and hugged in court....

Following the penalty phase deadlock, the state has the option to retry the sentencing portion of the trial and have a new death penalty jury impaneled. Should such a jury also deadlock, capital punishment would be taken off the table. Should prosecutors opt against a full penalty-phase jury retrial, the judge would be left to hand down a verdict of life in prison.

Maricopa County Attorney Bill Montgomery said in a statement that his office appreciated the jury's work and would now assess its next steps, but was proceeding "with the intent to retry the penalty phase."...

Among the issues that came up during the sentencing deliberations was whether a life term meant Arias would spend the remainder of her life in prison or would have the possibility of parole after 25 years.

Defense attorney Jennifer Willmott had advised jurors that if they sentenced Arias to life in prison, they were "sentencing her to die in prison," and there was no procedure in place to grant parole. Prosecutor Juan Martinez countered that while there was no mechanism now to grant Arias parole, one could be put in place later.

Some legal analysts questioned whether prosecutors should go forward with a new penalty-phase jury proceeding. "The jury that looked at all the evidence and heard five months of testimony could not agree that a death sentence was appropriate. Even though the state can take a second bite, this case should end now," said Dale Baich, an assistant federal public defender who represents death-row prisoners' appeals.

"The trial phase and the aggravation are going to have to be presented to this new jury, and Maricopa County has spent a lot of money on this case already. The question is, do they want to spend more?" Baich said....

Legal analysts also questioned how an impartial jury could be seated for a new penalty phase considering the wide attention the case had attracted. "This case has taken on the character of a circus rather than a trial," said Michael Kimerer, a criminal defense attorney in Phoenix. "I don't see how you are going to do it."

As the question in the title of this post suggests, even if Arias were to be sentenced to death by a new sentencing jury, there will be a wide of array of constitutional challenges that Arias could raise on appeal of a death sentence imposed by that new jury. Critically, there is established precedent from both the Ninth Circuit and the US Supreme Court that suggest the Double Jeopardy Clause permits giving prosecutors another shot at a death sentence through a second sentencing proceeding. But Arias could still reasonably raise a double jeopardy claim by urging these courts to reconsider these precedents and/or by claiming that some unique aspects of her case (e.g., that she presented a self-defense claim at her guilt trial or that Arizona has a unique three-stage capital sentencing process) should call for a different outcome on her behalf.

Beyond Double Jeopardy claims, Arias might also reasonable pursue Fifth Amendment due process claims and/or Eighth Amendment claims on appeal of a death sentence if imposed after a new sentencing phase trial before a new jury. As the article above suggests, all the publicity surrounding the first trial will make it hard to be confident that any new jury — especially after jurors are subject to the necessary "death-qualification process" — will be able to come without having prejudged some critical issues. In addition, the "evolving" nature of the Eighth Amendment means that any and every person sent to death row reasonable can, and usually will, challenge almost any and every novel aspect of the death sentencing process.

In part because of all these challenges facing prosecutors now and in the future, I would not be surprised if prosecutors might consider a deal that would allow Arias to secure an LWOP sentence in exchange for giving up some of her appeal rights. But whether Arias herself or the victim's family have an interest in such a deal, and how they might express their interests to Arizona's prosecutors, will surely impact whether and how a deal of any kind is struck.

Recent related posts on the Arias case:

May 24, 2013 at 07:48 AM | Permalink


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To all those folks who repeatedly asserted that the jury would surely return a verdict of death, I say that's why the jury is not composed of 12 prosecutors.

Posted by: Mindy | May 24, 2013 8:24:55 AM

As much as I support capital punishment I do think empaneling a second punishment phase jury goes too far. Actually I think that about the guilt/innocence phase as well, if the state can't prove their case it should be an acquittal, period, requiring unanimity for acquittal puts too much of a burden on the defense.

Posted by: Soronel Haetir | May 24, 2013 9:10:45 AM

The key part of the article is this: "Critically, there is established precedent from both the Ninth Circuit and the US Supreme Court that suggest the Double Jeopardy Clause permits giving prosecutors another shot at a death sentence through a second sentencing proceeding."

With no constitutional bar to a DP retrial, the prosecution should go for it. Nothing in Ms. Nicey's behavior has changed now from the time the prosecution first decided to go for death. (Well, she has told a few dozen more lies about one thing and another, but I'm not even counting that).

All the counter-arguments are same old, same old. Yes, it will cost money (so does a trial for burglary). Yes, it will be difficult to find impartial jurors (but they were found for Timmy McVeigh and the Watergate defendants).

Yes, the defense could ask for reconsideration of existing precedent (like this can't happen in every case, and like it has much chance of working).

Doug, who relentless claims to be a DP "agnostic" seems always to be cheerleading for some negotiated outcome, whether here or, for example, in the Boston Marathon child murder case, that winds up with no DP. That seems to me like agnosticism with a thumb on the scale.

Of course, if the prosecution does NOT go for the DP via a second jury here, that will become grist for the next abolitionist meme that, "Even prosecutors are using the DP less and less. It's all but an anachronism, so we might as well just finish it off."

Ms. Nicey here sliced-and-diced this guy in a jealous rage. There's not an ounce of what any normal person would call mitigation. For once, DP abolitionists have no Jim Crow card to play. She wasn't under the influence of drugs or booze. She just got really mad and went to town.

She has no visible remorse, couldn't get her own mother to testify for her, put on an absurdly deceitful if not fanciful defense, point-blank lied to the jury's face, and has no visible morals of any sort.

Let's bring in another jury and see if it's more sensible than this one has been.

Posted by: Bill Otis | May 24, 2013 9:15:32 AM

My understanding of this case is that this jury made the requisite findings under Ring for Arizona to impose the death penalty. Arizona has opted under this circumstance to have a second jury rather than the judge make the sentencing decision.

While not easy and sure to be challenged, the rules are well-established (see, e.g. Skilling) on when exposure to pre-trial publicity disqualifies a venireperson from sitting on the jury.

As to why the unanimity rule should apply both ways, the answer is jury nullification. While the system does its best to eliminate venirepersons who will not follow the law, any lawyer who talks to jurors after a hung jury knows that sometimes a person slips through voir dire by either actually lying about their beliefs or merely not responding to questions and gets back in the jury room to argue a position inconsistent with the judge's instructions. I know that I once tried a case in which an 18 year old had sex (the evidence was ambiguous as to whether it was consensual, but statutory rape was a more serious charge than the charge based on lack of consent) with a 12 year old and despite voir dire questions about their ability to follow the law on statutory rape, one juror hung the jury because he did not believe that it should be illegal for an 18 year old to have sex with a 12 year old. The jury in the second trial had no problems returning a quick guilty verdict.

Posted by: tmm | May 24, 2013 9:38:02 AM

Bill, other than the fact that it did not agree with you on the ultimate question of whether to execute Ms. Arias (or "Ms. Nicey" as you choose to call her), can you please explain what was not sensible about this jury?

Posted by: Curious | May 24, 2013 10:00:37 AM


Honestly I would rather see a few guilty rapists go free than allow the state to put someone through the wringer of trial multiple times.

Actually, if I were allowed to reform the criminal trial process any way I wished there would not even be deliberations as such. The jurors would simply remain in their seat and use a shielded device (so that jurors could not see each others' decisions) to cast their vote. And at that point either the state has proven its case or it has not.

Under such a setup I might be willing to drop to 11-1 or possibly even 10-2 super-majority being sufficient for a guilty finding but I still have huge problems with allowing a retrial after a mistrial due to jury deadlock.

Posted by: Soronel Haetir | May 24, 2013 10:20:14 AM

Curious --

Always wanting to be accommodating, I'll delete the word "sensible" and replace it with "different."

OK, good. Now, is there anything else in my nine-paragraph post with which you disagree? What would that be, and for what reasons do you dissent?

Posted by: Bill Otis | May 24, 2013 11:17:34 AM

"Critically, there is established precedent from both the Ninth Circuit and the US Supreme Court that suggest the Double Jeopardy Clause permits giving prosecutors another shot at a death sentence through a second sentencing proceeding."

Citations, please.

The availability of a penalty retrial in these circumstance has been the law in California since 1978, and I am not aware of any Ninth Circuit precedent finding a double jeopardy problem. I know there is no U.S. Supreme Court precedent to that effect. The California Supreme Court has upheld such verdicts many times.

There are penalty-phase double jeopardy precedents, to be sure, but not in cases like this.

Posted by: Kent Scheidegger | May 24, 2013 11:27:42 AM

But why would she take a LWOP deal? It seems obvious that the only reason she pleaded for her life was to placate her mother (who visited her in jail during her very short lived suicide watch). I do not think Jodi herself wants to spend her life in jail and honestly would rather die. So she could turn down a deal and fend off her mother by saying she would hope the judge gives her the 25 year sentence.

In other words, I do not see how either side has much to gain by working out a deal. I think both sides would view as straight LWOP as a loss so why do it if there is a hope that another crack at the apple gives them the opportunity for what they want.

/for the record, I think penalty retrials are patently unconstitutional. But that is a topic for another day.

Posted by: Daniel | May 24, 2013 12:40:44 PM

Bill stated: "Doug, who relentless claims to be a DP "agnostic"..."

Me: ...as he puts "Machinery of Death" to refer to the DP in the title of post after post...

Posted by: TarlsQtr1 | May 24, 2013 12:48:23 PM

Soronel, the Double Jeopardy Clause has always been interpreted as allowing a retrial after a mistrial (with limited exceptions). If we are going to bar a retrial after a hung jury, I would want to go to non-unanimous juries (an idea that I generally oppose because a guilty verdict should require a consensus of the jury) because a single lawless juror should not be able to set a person free.

As to the concept of an up-down vote after instructions and arguments, I am not sure what that is, but it's not a jury in the anglo-american tradition. Even back with in the roots of the jury system in the 1200s, deliberation is an inherent part of the jury process -- a communal review of the evidence with the jurors reminding each other of the significant evidence and debating its importance. I think Professor Akhil Amar's book on the Bill of Rights as a Constitution thoroughly discusses the Framer's view on the jury system, something that the up-down vote is simply not compatible with.

Posted by: tmm | May 24, 2013 4:35:47 PM

tmm --

Nailed it, as usual.

Posted by: Bill Otis | May 24, 2013 5:18:21 PM

I've served as a juror on three trials, all of them for felonies. One resulted in a conviction, one in an acquittal, and one was hung. Each was a brutal, soul-baring experience. From what I have seen, "lawless" jurors exist more in imagination than in reality. Jurors want to do the right thing, but they have different opinions about the significance of the evidence and how much weight to give to what. After more discussion and reflection some changed their position and others become more convinced that their initial position was right. I'm not going to tell you whether the hold-outs were the ones who wanted to acquit or the ones who wanted to convict. And don't assume that the jurors who changed their position were moving from the minority position to the majority.

Posted by: arfarf | May 24, 2013 5:58:58 PM

Had the victim lawfully killed her defending / stopping the attack , all these issues would be moot .

Posted by: Just Plain Jim | May 25, 2013 9:01:45 AM


"Soronel, the Double Jeopardy Clause has always been interpreted as allowing a retrial after a mistrial (with limited exceptions). If we are going to bar a retrial after a hung jury, I would want to go to non-unanimous juries (an idea that I generally oppose because a guilty verdict should require a consensus of the jury) because a single lawless juror should not be able to set a person free."

Bull shit!

unless you consider the last 40years or so to be "always" sorry legally it is a Double Jeopardy violation. Your not allowed to have a backup jury or 2 if you don't like the decison of the first one!

Even NO decison is in fact and law a Decision! Since if the state had proved it's case there would be a decison.

Posted by: rodsmith | May 25, 2013 5:09:39 PM

As for what calif thinks is legal. Well what do you expect from a bunch of drugged out washed up surfer boys and girls!

They have been in the twilight zone for 60 years! or so

Posted by: rodsmith | May 25, 2013 5:12:30 PM

Clarifications for above:

If the second penalty phase jury can't reach a unanimous decision the judge decides on LWOP oe 25 to life.

Arias' mother was not allowed to see her daughter when she was under suicide watch - only her legal team would have had access to her.

I've watched all the live streams of the trial (I know, I should be seeking therapy) and because of the filtered nature of evidence presented and excluded, I guessed correctly some of the jurors would believe the mentally battered mitigation allegation. I think the same thing will happen in a retrial. The state should turn it over to the judge, and hope she goes with LWOP.

Posted by: Jay Roth | May 25, 2013 11:37:09 PM



All i know is what I read in the news.

However, more up to date searching reveals this:


But the reporting in the second part contradicts what your rationale.

So who knows what is true (shrug).

Posted by: Daniel | May 26, 2013 1:41:35 PM

Motion to dismiss the death penalty claim on grounds of estoppel by judgment. Twelve could not agree on death. Case over.

Posted by: liberty1st | May 26, 2013 10:37:39 PM

"[R]etrial is not the prevailing rule for capital penalty-phase proceedings." Jones v. United States, 527 U.S. 373, 419 (1999) (Ginsburg, J., dissenting).

See also 18 USC section 3594.

Posted by: Jeff Aldridge | May 28, 2013 3:20:52 PM

I just found this blog. I expect few of the posters here followed the case in detail.
I'm very certain that Jodi Arias is demonstrably innocent.

But leaving that aside, the interesting question is how the retrial will go.

Perhaps many of the same witnesses will be called, but Martinez has fastened his chariot to a case that will be very hard to defend.

For example, Dr Horn is on record as stating he is "not familiar with research that talks about specifically about people getting hit with projectiles in their frontal lobe and not being incapacitated".

So will the judge still allow him to give evidence on that?

This is just the tip of the iceberg in terms of the retrial.

What happens if by the end of the retrial the states's case has completely fallen apart?

For example, suppose the defense find the Walmart record that shows Jodi did return a kerosene can to Walmart in June 3 2008, which was the lynchpin for the entire prosecution case, as it turned out.

And then there is the magazine for the gun that was stolen, which is incompatible with the bullet found.

Note: I'm not a student,prosecutor,attorney... My background is mathematical/musical - I won a scholarship to study mathematics at Clare college, Cambridge, although I thought about pursuing a career as a professional musician. In the end I switched to computer science, which is how I make my living... you can read more about who I am here: http://jodi-arias.wikispaces.com/Contributors

Posted by: George Barwood | Jul 27, 2013 1:25:44 PM

A thinking American, not, brainwashed... Thank you for the forum... Ex deputy sheriff, and, an ex constable. Also, an ex boyscout, and, disabled veteran...

Posted by: Edgar Longenecker | Oct 3, 2013 3:29:49 AM

Barwood, climbing the popularity pole on the shoulders of a dead woman walking. Nice. Stick to your OWN country bubba.

Posted by: Pesky Vrmt | Jun 26, 2014 10:26:23 AM

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