…for now anyway. The jury hung, and because that’s the second time the death penalty is off the table.
The judge has the option of sentencing to LWOP or Life, eligible for parole after 25 years, and of course she’ll do the former. The lynch mob is already angry. Twitter is entering tilt mode from all the traffic from people who wanted a death sentence.
The whole thing doesn’t speak well of us, or our collective ability to reason. That there was even one juror that would have voted for death in such an obviously inappropriate case is yet another testament to the power of official accusation. If a defendant ever offered a defense so obviously unwarranted he would be laughed out of court.
In any case, it’s an appropriate result for two reasons: 1) you basically can’t sentence someone to death for the only crime they have ever committed in their life; and 2) the determination of guilt is about as doubtful as any could be. The trial was a circus; the prosecutor was a blowhard and an idiot; and the investigation was directed by a moron who ignored everything but the easiest target, as if he simply didn’t have the brainpower for a modicum of curiosity, imagination or objectivity.
The bad part of the sentencing outcome is that the case will get far less scrutiny on appeal and in “post-conviction review”. This case should get a lot of attention, because there’s a reasonable prospect that the whole thing turned out wrong.
Update: Sheriff Joe seems to identify with Jodi Arias’ …
“…thirst for adoration and attention, Arias is willing to corrupt these younggirls, all to satisfy her own narcissism. That needs to stop,” Arpaio says.
Lawyers on Strike 
You could not be more correct, John! Now…to try and unravel the secrets….
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Ugh. The twitter-tantrum shrieking for death is terribly depressing.
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Yes, it is. That people can be this blind and dumb and apathetic is indeed…..depressing.
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Great article! 1 hold out juror. 11 were for death all along. Shocking!
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This case will be reversed for one of two reasons: A Brady violation that is bigger than Dallas; and possibly insufficient evidence to support a capital murder conviction. Plus Juan is a buffoon who seems unaware or doesn’t care that even non-lawyers like my dentist, to name just one, think he is a buffoon. Sadly, this defendant will probably not get relief until she gets to the Ninth Circuit. They call it the Arizona Whammy. Arizona is dead last in governmental ethics, according to Harvard.
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Well, it may be reversed, but the truth is huge Brady violations and all kinds of other problems in a trial resulting in conviction are routinely ignored by appellate courts. There are many reasons for that, none of them good, some of them more understandable than others.
For example, appellate courts decide cases in panels of judges. They can disagree, just like jurors and just like the rest of us. When they do, and it seems like no good can come of it, a no-explanation affirmance is often the result. Obviously, this reality by itself is one of the factors responsible for very high affirmance rates. In the New York State system, and I’m sure most other places, it’s over 90%.
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I was board certified in criminal law and criminal appeals in Texas, so I get that the law is whatever the 900 pound gorilla(s) says it is. At the same time, the Ninth Circuit recently came down with a scorching reversal of the USDC-AZ on a Brady violation in a different Arizona capital case, and also threatened sanctions against a California AAG on another Brady violation in that state. One dingbat AAG in Texas went all the way to the U.S. Supreme Court to argue that it was okay to hide exculpatory evidence. That argument was rejected. Judge Ken Anderson in Texas was disbarred for a Brady violation that resulted in the conviction and 25 year incarceration of an innocent man. Nifong — need I say more? I agree that some states will not give relief when they should. Like Arizona. My faith in the judicial system in Arizona is about nil. It is the youngest of the lower 48 states and the pantheon of precedent setting constitutional violations would embarrass better lawyers & judges. Ring, Edwards, Miranda, to name just a few. There is even a plaque in a hotel in downtown Phoenix to commemorate the spot where Miranda’s rights were violated. Hurray for Arizona, uh, ugh, okay, whatever. But Brady violations are still kind of sacrosanct. You may have to go to the federal appellate courts to get any relief, but I still have some faith that federal appellate courts will not put up with the state hiding relevant, material, exculpatory evidence. Many state judges, however, still don’t know that a Brady violation does not require a finding of fault on the part of the state — the intentions of the prosecutor are irrelevant. But not knowing that, state judges are loathe to fund prosecutorial misconduct where it was not done “on purpose,” even though the U.S. Supreme Court said years ago that no showing of bad intention is required. Duh. Does anybody charged with the solemn duty to preside over a state trial even bother to learn the law? Probably not. In the meantime, what has given me the most hope & surprise is Scalia’s insistence on holding the Fourth Amendment line on the Bruton (now called something else that escapes me at the moment) line of cases. No convictions on uncorroborated codefendant testimony. Who knew Scalia would ever be a champion of even one Fourth Amendment doctrine. As I always told my clients, “You should win. But that does not mean that you will.” That’s a pretty sorry state of affairs for criminal jurisprudence.
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I’ve written a lot about Brady around here. There’s a lot of confusion about it. The best way to look at the Brady holding is that a showing of prosecutor fault or intention is not required. But that doesn’t mean fault or intent is “irrelevant”, because of course if a prosecutor deliberately hides exculpatory evidence that is worse – it’s a Mooney violation.
With a Mooney violation you don’t need to show “prejudice” or “materiality” because that has effectively been conceded in advance: if the hidden evidence wasn’t material, why did you deliberately hide it?
See what I mean?
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I must respectfully disagree, because we are talking apples and oranges. Mooney, from the 1930s, had to do with the knowing presentation of perjured testimony. The key word being “knowing.” If you don’t know a witness is lying, then you don’t know. And witnesses lie an awful lot. When I was an AAG I had an ADA lie in a case I was defending in federal court. When I found out about the lie, I asked the federal judge for a new hearing and disclosed the lie. It had nothing to do with guilt to innocence, but I had unknowingly presented false info because the ADA lied to me.
50 years after Mooney, the U.S. Supremes said the touchstone of the due process analysis on a Brady claim was the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209 (1982). So whether an ADA knowingly hides exculpatory evidence, or fails to disclose it for an innocent reason, like because Officer Schmutz never told the ADA, the analysis is the same: relevant, material, exculpatory, and the outcome might have been different had the jury only known.
Now, whether you get to keep your bar card or not very much depends on whether this was a knowing versus an unknowing withholding, as we saw with Judge Ken Anderson and D.A. Nifong. It’s the disappearing bar card trick caused by the knowing withholding of exculpatory evidence. Michael Morton spent 25 years in prison because Ken Anderson needed a conviction in a high profile murder case and did not give a rat’s ass that he was ruining the life of an innocent man. Politicians in positions of power can turn out to be really sick people.
I was also at a MNT hearing where Cynthia Orr proved a deliberate Brady violation in the case of an alleged salt poisoning by a foster mother, Hannah Overton. I knew for a fact that C. Orr had won that hearing. Then the judge announced that he would take the case under advisement, but in any event would not decide the case based on “political reasons.” When I heard that, my heart sank. I knew we were screwed. It would take C. another 7 years to get relief in the case Hannah was entitled to at the MNT hearing. The cheating ADA had already lost her mind and her job, but C. also had to get that cheating judge recused after the case was overturned because he was determined beyond all reason to hang on to that conviction.
As a coda, I was really proud of C. for killing it in Overton. She is also the brains in her office, even though she is basically a 30-year associate. So I was a little stunned when, 3 years after I left Texas, she and Gerry Goldstein took credit for the Michael Morton exoneration, which was not their case. I and another lawyer did the second DNA exoneration in Texas, & did not make a big deal out of it; but some people are so desperate to take credit for an exoneration that they are willing to misrepresent their role, if any, in a case. They stepped right up for the first post-exoneration hug while the cameras were rolling, and took credit for that case. I laughed when 60 Minutes showed that footage and never once mentioned those two. It’s sad and also crazy, but I guess that’s the nature of the biz. Look at us! Give us a lot of money! Criminal justice is just screwed at every possible level. No wonder I got so burned out.
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Karyl, appreciate the comment. It’s important to clear all this up, and if I can get to it I’m going to have a post on this subject today.
But briefly, this is not a matter of agreement or disagreement, this is straightforward and there’s only one way to look at it.
You have to read Mooney. Mooney included the suppression of exculpatory evidence in its calculus, not just the “knowing” (I prefer the term “deliberate”) use of perjury. Because when you think about it they are flip sides of the same coin.
But the essence of the Mooney case is deliberate conduct. And here’s how it works: when a prosecutor deliberately uses perjury, or deliberately hides evidence – acts in bad faith – that violates a defendant’s right to due process of law. The inquiry is focused on the intentions of the prosecutor. There is no “materiality” or prejudice issue. How could there be?
Brady, on the other hand, was a self-described “extension” of Mooney. And the extension was to hold that it was also a violation of the defendant’s right to due process of law if exculpatory, material evidence in the possession of the government is not disclosed at least by the time of trial, whether or not the prosecution meant to – that is, even if the prosecution was acting in good faith and just overlooked something.
The traditional due process analysis of this kind focused on the abuse of government power, deliberately used as an instrument of oppression, and Brady departed from that but of course did not qualify that in any way.
The reason this distinction is so important is that Brady has been subsequently qualified, practically to death, but Mooney has never been, and never can be. A prosecutor who commits a Brady violation is not necessarily a cheater and may not even be guilty of misconduct; but a prosecutor who commits a Mooney violation is necessarily a cheater and has also necessarily committed serious misconduct. But there are prosecutors out there, and I have unfortunately had to deal with them, who play it this way: fabricate evidence, lie and cheat and there’s only a tiny chance you will get caught; but in the unlikely event that you do get caught, the AG will argue that there was no prejudice or it was not material and the conviction shouldn’t be overturned.
This needs to be burned into everyone’s brain, especially among the defense bar: if you catch a prosecutor deliberately cheating that’s the end of the prosecution. No further showing is required. That is what Mooney translates into, and that’s still the law, and that must always be the law, because otherwise we’re even more doomed than you or I might think.
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If you want a little more meat on the bones without studying too hard, try reading this:
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JMRJ, if you have 45 minutes to spare, I would love to hear your thoughts on the press interview with 8 of the jurors. I’ve always found it fascinating to listen to how jurors reach conclusions, and this was very interesting. I think it should be almost required listening for any criminal defense attorney.
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I listened to a little of it. So far, it just seems like this jury was a joke, caught up in the whole frenzy of everything. JA is a psychopath? The evidence of that is so poor and unbelievable – ALL after the fact rationalizing – I just don’t see how anyone can take it seriously. By way of contrast, if you have, say, some medical/psychological documentation from when JA was a child, or at least at some remove and PRIOR to the events she’s actually on trial for, containing opinions that, for example, “Gee, this girl is totally devoid of human feeling, a real psychopath who will probably kill someone some day!” – well, that would be good evidence that she’s a psychopath. But after we have her in the dock, getting a bunch of “experts” to opine that she’s a psychopath is just so much horseshit. It shouldn’t even be allowed into evidence, it’s so stupid.
The stupidity of this case is just really starting to get to me. I feel like I’m looking at the kind of mentality that enjoys championship wrestling.
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Well, Jodi’s behavior seems to be held up in contrast to the perfect Mormons. That’s played a huge part in the public perception. What would be seen as quirky or even cute behavior by many, like baking cookies or pretending to be Travis’ Christmas present by posing under his tree, are looked upon as evil and sinister. You’re spot on about the mentality, as well. Question, John, if a defendant is determined to dig their own hole, just what responsibility does an attorney have to prevent it?
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In context, Sandra, I’m not sure I can really give you a good answer. Early on you can quit, or try to, but the later in the process it is the less likely you should do that, and the less likely you’ll be permitted to quit anyway.
This was obviously an extremely difficult case for the defense from the beginning, but I blame the incredibly poor police work, prosecutorial stupidity and judicial fecklessness more than anything JA or her lawyers did or didn’t do.
OT, apparently someone is claiming that Laci Peterson was killed by a serial killer who may also have been the notorious Zodiac guy:
I didn’t follow that case much, but it had some common ingredients, in particular the missteps by the defendant early on from which public perception never recovered, because no amount of evidence could change their minds that Scott Peterson didn’t act like a grieving husband was supposed to act. Just like the JA handstands or the Amanda Knox cartwheels. People have an idea about how traumatized persons should behave, and there is indeed a way they do behave: bizarrely. But bizarre behavior + official accusation = guilt in an equation that becomes impervious to evidence. Especially when the defendant is a pretty girl, but it can also happen to a man (Scott Peterson)
Luckily these cases are one-offs, having little to do with the routine, but they do highlight the awful weaknesses the system has.
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Scott Peterson is a handsome man, if I recall correctly. Perhaps the public determines guilt or innocence based on level of attractiveness? The better looking someone is, the more likely it is they are guilty?
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Thanks, John. Yeah, the myth of the “pretty girl” …..Lisa Bloom immediately tweeted, after the verdict, that this proved juries have a hard time giving the death penalty to a “pretty girl”! Well, I tweeted back …that she was wrong. Well, in different words. Far more bad has happened to Jodi in this because of her looks than has happened good. She might get an extra minute of phone time or an extra scoop of peanut butter because of it, but in this debacle, it’s done nothing but energize the lynch mob. That’s interesting about Scott Peterson. Not too familiar with the case, but I can see where he’d be judged for being an asshole, but not necessarily a murderer.
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Well here’s a different point of view to Lisa’s theory:
http://digidyn.blogspot.cz/2015/03/the-reason-for-bloodlust.html?spref=tw
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I don’t know. The similarities of the bloodlust-frenzy aspect of this case with Casey Anthony and Amanda Knox suggest it has nothing to do with Arizona, per se.
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No JMRJ not Arizona per se but Both Florida and Italy could be considered conservative areas no? If so the guy’s point is that they tend to have more of an adverse reaction to “uppity” women who don’t behave like they should (ie like cca in the 1800 LOL), who get out of line. Marissa Alexander of Florida got 20 years for firing a warning shot into the wall while Zimmerman is touring gun factories as an honored guest.
It’s just another point of view, I’m not sure that Bloom’s “Pretty Girl” theory has any validity, Darlie Routier sits on death row and she was considered a trophy wife, a Southern Belle. She sits in Texas, another conservative state, because she shot silly string over the graves of her boys, which tends to support the idea expressed in the article.
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Thank you for listening and for your thoughts. Considering this press conference was held moments after the jury left the court house, it really makes me wonder if they were truthful when asked if they had watched/read any media coverage during the trial. Note their key phrase “justice for Travis.”
As for the psychopath remark, not even the state’s psychologist came to that conclusion. She diagnosed Jodi as borderline personality disorder.
I often found that those who serve on a jury are NOT those with the highest IQ in our society, but really was astounded at the remarks made by this jury and, in particular, their wrath at the juror who did not agree with the “mob.” Now, that poor juror is in fear for her life.
By the way, championship wrestling is, apparently, very popular in that part of AZ.
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At least everyone knows that championship wrestling is fake.
I mean, they know that, right?
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Thought provoking question there John (how pathetic!). Do they know it’s fake? I would hope anyone over the age of 12 would know that. But, I’m not entirely certain.
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It starts off: “We will all try to get through this. This has been a very emotional week for us, a very emotional day…” Yeah, no shit, maybe that’s the problem: EMOTIONAL? Why are they all crying? Even some of the male jurors were sobbing. They’re acting as if she just won the lotto and is moving to the Caribbean.
This group, exactly as the first one, didn’t mention ANY evidence, none, it’s as if they didn’t even remotely understand the most basic principles of law. “Justice for Travis”? justice is not for Travis, justice is for all. Are they Travis avengers or an impartial jury? When a question about evidence was posed by Beth Karas, major chaos ensued.
They were there to decide if the aggravating factor outweighed the mitigating factors, to my understanding, and I did not hear anything specific from them indicating an understanding of this being the central issue nor of the factors themselves. All the whining about their lives and emotional burdens is almost as if they did not understand the gravity of this situation.
One juror mentioned he discounted all of Arias testimony because she said she and Brewer were looking for a house in a school district and that was a lie, I don’t even know where to start with that one. One mentioned that they went through all the letters, all the journals, texts, etc. and that they were nothing like portrayed. All before Thursday, really? One mentioned that Jodi’s parents not taking the stand indicated what she said about her childhood was not true, I would argue that it exactly confirms what she said.
The absolute betrayal and pillorying of juror #17 stems not from any “fact” that she is fundamentally against the death penalty and hence refused to consider it but rather from the fact that the initial split was 50/50. The more persuasive (aggressive) jurors managed to bring the other half to their side very early on (Thursday) but could not overcome one lonely, principled woman by force. They even requested an alternate substitute, obviously not understanding their mandate or how far beyond its scope they ventured. They, as the rest of the nation, should accept they were hung instead of speculating (with out any basis) on the mindset of a dissident (unless of course they are clairvoyant). Juror #17 has not spoken, the 11 cannot speak for her and stating she had an agenda is disingenuous at best as there is no way they can know that. How about the fact that one of the jurors is a Mormon, and her agenda? Had this jury been hung instead by 11:1, eleven against the DP, we would not be having this discussion, and juror #17 wouldn’t be in the witness protection program.
Just a question, how is the jury issuing an apology to the family a sign of impartiality? Given they’re not even supposed to know who the family is and given they issued this statement before the sentencing, I’d say that’s a big red flag. In addition, stating that they felt pressure from the Alexander family as well as the media is also not a great endorsement of their impartiality or moral fortitude.
To compare this bunch to wrestling fans would be a compliment.
As a watchdog the press is just useless.
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Oh, I hope this “one shy of a dirty dozen” keeps talking! Jodi’s defense team needs to take advantage of this, and give one more shot to making a very bold move….demanding an investigation into ALL the jurors, maybe from the first trial, too if that’s possible. Jodi needs a new trial. She either falsely confessed under duress or self-defense was given to her as her only option. OR, Jodi decided to make lemon out of lemonade, and take CREDIT for a murder, hoping she could beat it in the first trial. Crazy as that sounds, her behavior is telling me that is a possibility. I don’t believe Jodi’s story in entirety. It was the “simple truth” perhaps, but not the whole truth. Does she know the “whole truth”? Or is she protecting someone else? Or is she afraid? Juror 17 opened the door…now it needs to be opened completely….on this clusterfreak of corruption and criminals in Maricopa county, AZ!
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“As a watchdog the press is just useless.”
That too. Mainstream media, imo, is a party to this entire debacle. Some of them know, I am quite sure, that they are witnessing a modern day lynching, but they’d rather get paid than do the right thing when it’s SQUARE in their faces!
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This is an excellent comment, both in and of itself and in its prompting me to make another observation that I wouldn’t otherwise have thought of.
One of the truly striking things about how this whole JA thing has transpired is the complete lack of mental discipline. Maybe these people aren’t as stupid as they seem, because a lack of mental discipline resembles and is sometimes the equivalent of stupidity.
The important point about this is that it’s not the jurors’ job to bring rigor and discipline to the process; that’s the job of the lawyers and judges. Because this was not only not a death penalty case, but not even colorably a death penalty case, the question should never have been submitted to a jury. That gives the question a legitimacy it never had in the first place, and from there the jury can’t be entirely faulted for treating the question seriously, in whatever manner seems to bring meaning. Since rationally speaking there was nothing to talk about, “deliberations” degenerate into self-indulgent emotionalism.
You have this buffoonish prosecutor throwing things in the courtroom and signing autographs during breaks; the usual feckless judicial presence; a defense pushing every emotional button they can think of because they’re trying to save their clients’ life (the most forgivable, obviously); pandering media everywhere looking for any salacious detail to command ratings and attention. Nobody’s showing any discipline. Well, the judge maybe a little.
That we would put a question of life and death in the hands of such a mess is beyond deplorable.
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It’s like everyone just gets punch drunk whenever Jodi’s around. It’s comical in a very dark way.
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That’s a bizarre video. It’s like they thought it was their job to find for the death penalty, that was why they were there. It’s weird that they completely lack self-consciousness, that the single juror had an agenda. Really you guys don’t have an agenda, you’re completely unbiased in your race to find for the death penalty.
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Yes, Buck, exactly. And isn’t that frightening? Since when is it the “job” of the jury to work to find for the prosecution? In fact, why do we even have juries if their ultimate job is to deliberate in hopes that they will find for the prosecution? Something is very wrong here.
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Reblogged this on Wrongly Convicted Group Website and commented:
More than a reasonable prospect, the craziest trial I ever saw is over.
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Hi George. Yes, kind of inexplicable, other than maybe fallout from the Casey Anthony thing. I noticed a lot of JA twitter zealots were also Casey Anthony frenzied, too.
Ugh.
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I watched very little of the case. The comments calling Arias a whore were shocking. I am really old and to read young people use language that went out 30 yrs. ago was beyond shocking. Travis came from the most horrific childhood. Crack parents, one didn’t even have a two lime obituary.
Everyday after a crack binge, the mother beat those kids. I’m a retired clinical social worker, of course he hated women but the Mormon religion doctrine that requires denial of a young person’s strongest drive, sex, and then shames and ex- communicates them from their church was just mind blowing to me.
What they both wanted was the “50 Shaes of Grey” type of sex which was not only before the release of those hugely popular books and movie and so sought after in the general population, they were sold in my local Costco!
There were 500 pans of Alyce Devoitt’s ( sorry for misspelling) book immediately after she testified. It seems those Mormons were not going to tolerate any evidence past Travis was an angel and Arias was the devil. And prosecutor was a rockstar signing autographs.
The tiny bit I could stand reminded me of our old history of the Salem witch trials that brought out the craziness in people.
He certainly was of above intelligence and would know to lock his doors if he had a stalker. And his emails were bordering on cruel. The one thing he excelled at was selling, which means he knew how to let people down gently.
His friends cared so little, they didn’t return from their vacation when notified of his death and how in the world does he stay de-composing upstairs with a dog and, I believe, a roommate downstairs.
My interest in watching the little bit I could stand, was centered on how a religion blocks any negativity or sunlight from exposing their belief.
When Mitt Romney was interviewed by the money people in Idaho, they had 3 questions: Mass. Health ins., political party change, and his Mormon religion. Ms. Romney left room furious but the Idaho monied backers knew his religion would need to be addressed in a way Americans would not see it as a cult similar to Scientology.
Thanks for your very intelligent analysis of this trial!
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