Unless things are different in Arizona than they are just about anywhere else in the country, this is….not true.

The conviction occurs upon the judgment, and indeed in most places in a criminal case the final judgment is called a judgment of conviction.  The judgment of conviction can be based upon a “verdict” by a jury or a judge, or upon a plea of guilty by a defendant.  And here is the key:  the judgment of conviction must include the sentence.  Thus, there is no “conviction” until the sentence.

In the Jodi Arias case we do not yet have a sentence, and so although there has been a verdict of guilty there is no judgment of conviction, and so she is not as of this writing a convicted murderess.

This may seem like a distinction without a difference, but like many things in the law it’s true that it doesn’t matter – until it does.  And there have been cases where the distinction becomes important.

So, you know, lawyers should be careful how they speak lest they mislead the public.  Not intentionally, of course.  No lawyer would ever do that.

First this:

http://kristinarandle.com/blog/jodi-arias-trial-her-statement-to-the-jury/#comment-1435

then this:

http://kristinarandle.com/blog/jodi-arias-trial-her-statement-to-the-jury/#comment-1446

then this:

http://kristinarandle.com/blog/jodi-arias-trial-her-statement-to-the-jury/#comment-1449

then this:

http://kristinarandle.com/blog/jodi-arias-trial-her-statement-to-the-jury/#comment-1455

then this:

http://kristinarandle.com/blog/jodi-arias-trial-her-statement-to-the-jury/#comment-1458

Pretty good stuff if you’re interested in all these alternatives.

Of course I feel the same way about “victim impact statements”.

Trial as soap opera doesn’t help with the public frenzy problem.

Impression, 2:13 EDT:  It’s like she’s in a play, playing a role.  Grounded in a detached drama, not fact.  I’m still not buying that she killed him.  I’d be impressed, and not necessarily in a good way, that under the circumstances she’s able to muster up the resolve and courage – or audacity, as the case may be – to make this speech, but instead I think she’s totally in la-la land.  Clueless.

I would agree with the many on twitter who say she showed no contrition or remorse.  It’s entirely possible, though, that the real reason is:  she didn’t do it.

We’re at the same place they should have been at the very beginning of the investigation:  we don’t know whether she is a history making but small scale sociopath, or utterly innocent of this killing.  Neither is more likely than the other.  Everything everyone has done in the intervening five years hasn’t really accomplished anything, except to browbeat the defendant and her attorneys and put on a giant spectacle for the plebeians public.

Martinez said that he had merely interviewed [proposed defense witness] Womack about her testimony last week, on May 15, and asked her pointed questions about her drug use and unreported income that could subject her to criminal prosecution. Womack decided to invoke her Fifth Amendment right in response to his questions, Martinez said.

I love how the word “merely” is thrown in there.  Why not say as well, instead of references to “pointed questions”, that he just “casually mentioned” to the witness that if she testified in a way he didn’t want her to that he might prosecute her?

The solution for this kind of misconduct by the prosecutor is to throw his whole case out and refer him for discipline, after which he should be disbarred.

I’m completely serious.  There is no conviction that matters as much as making damn sure no prosecutor thinks he can do something like that and get away with it, or win his case despite misconduct like that.  At the very least he should lose his case – immediately and forcefully and make damn sure you pin the blame right where it belongs, your honor.

But that’s the way the system should work; not the way it does.

Rather 10 guilty men go free rather than 1 innocent person convicted?  Screw that.  How about this:  rather than allow a public official to so abuse his authority and subvert a fair trial for any person – but especially the most reviled, who are the easiest for a crude bully to pick on – shut down the court house entirely and let everyone go, because if you permit that abuse you have already turned the courthouse into a farce.

Bullies make me mad.  You?

Correction:  According to this, defense counsel was present when Martinez interviewed the witness.  This changes things.  While I still think the substance of the questioning was improper and an effort to intimidate the witness, I would have to say that although it is an extremely unfair tactic by the prosecutor, it wouldn’t be criminal.  Unethical, but not criminal.

Interesting.

https://www.youtube.com/watch?v=I6DyoR1lffI

That one was from 2009.  Apparently there was another broadcast on Friday:

http://www.cbsnews.com/video/watch/?id=50147080n

Under the circumstances I can’t imagine this was a sound professional move, regardless of how difficult she has been or is being.  I’ve been wrong second guessing them before, though, so for now I’m just posting the fact of it.  I’ll leave the commentary to others, of which there seems to be an abundant supply.

Apparently there are reports of witnesses being harassed and threatened, and at present there’s a wild and evidently blood thirsty throng outside the courthouse reveling in the idea of killing her.  I’d say it was like a culture gone pagan but, you know, some pagans were civilized.

Legally, are we dealing with a denial of due process here?  Read Moore v. Dempsey and tell us what you think.

Update:  I don’t want to pick on her lawyers, and who knows maybe nothing would have made any difference here because what is going on is not rational.  But still, my approach to this would have been so different.  I think you have two PD’s here who follow the conventional defense wisdom.  The conventional defense wisdom means you lose, because that is what defendants are supposed to do.  Often the only question is how badly do you lose.

Having the death penalty hovering out there is a lot of pressure.  And in high pressure situations people often revert to their training, which is keep control of your client, keep your distance from your client, don’t get too “personally involved” in the case, whatever that means.  In any event, the death sentence is nerve wracking, but it seems to me you have to ignore it.  You can get bogged down deciding between this or that tactical move or this or that strategy, or figuring out who benefits from this or who benefits from that.

A long time ago I decided that this kind of approach is too confusing, too speculative as to what would result from it, and beyond that didn’t feel right.

So I more or less begin with:  What is the truth here?  What is the right thing to do, based on that?

Much simpler generally, though not always.

In any case, once you figure that out all the strategy and tactics fall into place, and you don’t worry – or at least worry as little as you can – about who benefits and who loses, because nobody really knows how it’s all going to pan out beforehand anyway.

You don’t always, or maybe even often, of course, arrive at the exact truth.  But you get as close an approximation as you can.  Many times you wind up agreeing with the prosecution, and then generally a deal can be struck.  That’s just the reality.  The system is good on that level.

But sometimes you disagree completely with the prosecution.  I think the advantage of the approach I take to these things in that case is that I have a scenario I’m comfortable with, that I believe in, and that I can then go to work very systematically to advance to the maximum extent the system will let me.

I’m guessing that the defense lawyers here subscribe to the standard defense lawyer philosophy that nothing is really true, that even if it is it would be unknowable, that the only things that exist in the system is “evidence” that is in and of itself meaningless unless and until arguments are made about it.  And then the most persuasive arguer wins.

This winds up putting arguments over evidence, and instead of letting the evidence tell you where to go, you wind up trying to force an interpretation onto the evidence.  Ironically, this is frequently where the police go wrong.

And the judges?  Most of them are slaves to power.  (Well, maybe not this lady.) When a case is before them where there is a significant power differential - and every criminal case is such a case – most judges are impervious to evidence.  It doesn’t matter in the slightest to them.

It would be nice to get back to a system, if we ever had one, where evidence led the considerations in a case and controversy.  People are finding out how far we have fallen from that better reality, even as we know that it might never have been as real as it looms now in the imaginations of some of us.

Appreciate all the commenters here.

Speaking of “safety”, I think it’s safe to say that we have reached a moment of unbridled insanity on the drunk driving thing when this can even be proposed with a straight face.  I’ll take any reasonably competent 18 year old behind the wheel at .08 – never mind .05 – than a stone cold sober 75 year old.

Operating motor vehicles cannot be made absolutely safe.  You’re talking about a couple tons of metal rolling down a road at speed.  This is no longer about any rational concept of safety, this is about the same puritan impulses that brought us prohibition.

Not to mention this is a potentially huge boondoggle for the prison industrial complex, prosecutors and police, jailors and the endlessly moralizing therapeutic state.  Enough.

This is yet another indication that no significant investigative work was done once they had their man.  It doesn’t matter, they think.  We already know who did it.

You can add the shoeprint to four other items of proof I previously identified for believing that someone else was present when TA was killed.

Unfortunately, if that shoe print belonged to a third party that will probably never be proven at this point.  Ugh.

Update:  I thought I might summarize in this post, in one place, the reasons for believing that someone else may have been involved, and present at the crime scene, and with Jodi Arias in her rental car in the aftermath of the murder, under circumstances suggesting threat or coercion.  Let me know if I’ve left anything out.  Feel free to comment, of course.  That’s what we at Lawyers on Strike are here for, at least this week.

1.  The improbability of a lone woman attacking a larger and more powerful man with a knife.

2. The lack of a criminal record or any other fact from JA’s background that would even suggest the capability of such a savage killing.

3. The odd route she took to her next destination after leaving the murder scene.

4.  The smell of cigarette smoke in the rental car when it was returned when it appears to be undisputed that Jodi didn’t smoke.

5.  There are people who think that a photograph of TA shows a reflection in his eyes of someone else.

6.  There is a shoe print in blood at the scene that was never identified.

7.  Jodi Arias said for a long time that two others were there and did the killing.

8.  Incredibly, with all that the possibility of someone else being there was never investigated by the police, so it’s a completely open question.

I post about a lot of things, but of course since this is mostly a legal blog, or “blawg”, cases with notoriety often receive attention.  Two years ago the world was abuzz with the Casey Anthony case, and I certainly did a lot of posting on that.  It took up a lot of time and I figured I probably wouldn’t go down that road again with another case.

So I hadn’t paid much attention to the latest in this line, the Jodi Arias case.  But lots of people were paying attention and it was the usual one sided news coverage and so on.

The people who came over here to comment discussed a lot of the details of the case and it appears that there were very strong evidence supported arguments that maybe Jodi Arias – who is now convicted of first degree murder – didn’t kill her boyfriend Travis Alexander at all, and that some other or others might have while she was present, and wound up not killing her as well.  This in fact was the story she originally told, but apparently no one believed her and by the time of the trial her lawyers were arguing self defense, taking the position that she did kill Travis Alexander.

Now, from a defense lawyer’s perspective, it’s very difficult to envision a scenario where you would opt for a self defense argument if you had a good argument that someone else “did it”.  One reason might be the judge.  Judges, who want to convict the defendant as much as the prosecutor, know how damaging to those prospects it can be if the defense offers another culprit when there is some good evidence to support it, so they will often refuse to allow any evidence of any other perpetrator to be admitted, under the rationale that it’s the defendant on trial, not someone else.

That’s completely illegitimate of course, but it often happens.

In any case, this blog’s format makes it difficult to keep track of comments to one post when there are so many, so here’s another post where people can comment and won’t have to scroll through hundreds of other comments to find the one they’re responding to.

Might post more on this later.

Update:  Actually I’ve been unfair to her lawyers.  The problem is the death penalty.  If you go with the third-party-did-it scenario, well then if the jury goes with it you get an acquittal.  But if they don’t they can only convict on the top count and they sentence your client to death.  But if you go with self defense and put her up there so they get to know her, you can ask for lesser convictions that don’t involve the death penalty and there’s evidence to support that.

That’s a legitimate strategy under the circumstances.   Sheesh.  What a lousy game.

Update 2:  I guess I should have seen this coming.  As if the government didn’t have enough advantages when prosecuting people, now there’s a move afoot to pass “Travis Alexander’s Law” to prevent criminal defendants from “trashing” murder victims.  Ugh.

I can also understand the satisfaction of being proven right, and having that acknowledged, with the caveat that prudence and wisdom would counsel that this feeling is not to be over-indulged.  It’s a matter of manners, mostly, a concept that has undergone a sea change in the internet age:  a deplorable lack of manners has been unleashed, as any trip to any message board on virtually any topic will reveal immediately.  The unmannerly have found so much company that they are no longer ashamed and are dragging much of our popular culture down.  I don’t think the bottom is in, either.

In any case, what I can never understand is how some people feel glee or exuberance at a guilty verdict in a criminal trial.  To me a guilty verdict is always a sad occurrence, even when I believe it is justified.  And the more serious the crime, the sadder it is.

So Jodi Arias was found guilty of first degree murder and now a death sentence is on the table.  The mob, led by the execrable Nancy Grace, is already foaming at the mouth and looking for blood.  A friend of the victim weighs in:

“It just feels so good … to finally have the truth and be vindicated,” said Dave Hall, choking back tears.

Don’t forget how close “vindicated” is to “vindictive”, David.

The big crowd outside the courthouse “erupted in cheers” at the verdict.  Ugh.

By any sane measure this was a horrible incident and a tragedy for all concerned, Jodi Arias included.  I indicated elsewhere (near the end of this post) that it was hard for me to see an acquittal on all possible homicide convictions, since self-defense seemed to be belied by the nature of the victim’s wounds.  But my opinion, although it is soft since I didn’t follow this one closely, is that although murder with premeditation had some support, it wasn’t enough for a conviction.  In other words I think the jury got it wrong here, but I would probably not be able to quarrel with a lesser murder or manslaughter conviction.

I do not think the death penalty is appropriate here under any circumstances, and I’ll venture a guess that the jury will not authorize it.

I’m worried, and I think lawyers and judges should be especially worried, that the unremitting scorn heaped upon juries who acquitted in high profile cases like Casey Anthony’s and OJ Simpson’s has distorted the jury pool nation wide.  And it’s yet another failure of the legal profession and lawyers that, far from alleviating this problem, lawyers have often aggravated it.  And not only have they suffered no professional consequences, they have ridden their ethically challenged behavior to fame and fortune.  And there are more wannabes waiting in the wings.

Lawyers are important for so many reasons, but maintaining perspective and, yes, dignity in the middle of adjudicating some of the worst things human beings can do is among the most important.  If the profession as a whole was more introspective, somber and grim on occasions such as these people would be ashamed to engage in their unseemly revelry.  Nancy Grace would probably be disbarred and running a psychic hotline, where she belongs.

And we’d all be better off.