I mean, I hope they don’t go down that road, but the Maricopa County Attorney’s press release is not too reassuring.
To a lawyer, this benign sounding copy appears to be a veiled reference to an “investigation” focused on prosecuting juror #17, the sole hold out on sentencing Jodi Arias to death.
After the obligatory disclaimer that of course they do not want to single any juror out for their “decisions made in the process of jury deliberations” “[whether] those decisions are in favor of the prosecution or not…” – and that’s an odd way of phrasing the idea already suggestive of bias – the press release goes on to say:
“In instances where there is credible information of misconduct, the Maricopa County Attorney’s Office will review the matter, request an independent investigation and then seek an independent review for any potential charges and then for prosecution.”
What is “credible information”? That’s up to them to decide. But don’t worry, any investigation will be “independent” not to mention “independently reviewed”. How do you know? Well, they’ve said so in a press release, and surely the Maricopa County Attorney’s office can be trusted, right?
Seriously, there is little that could happen at this point that would make the Jodi Arias fiasco even more important, but this is one. And it’s not a good thing. We at Lawyers on Strike don’t think we have ever seen in our lifetime a more dangerous threat to the right to trial by jury than would occur if juror #17 were now put in the dock, even if she was guilty of some kind of misconduct.
Ugh.
Lawyers on Strike 
I personally think the defense should SEIZE this opportunity to have ALL the jurors probed, so to speak! You need to read Jen Woods’ interview of the jury foreman….before she deletes it. 🙂 Also, another question Maricopa attorney’s office needs to look into is WHO leaked juror 17’s name BEFORE the juror press conference…allegedly, the name was emailed to several journalists…There’s a trail, but will anyone follow it?
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But my dear Sandra, only “credible” allegations of juror misconduct count. Credible allegations are those made against jurors who voted to acquit, or who voted against the DP. Allegations against other jurors are not credible.
See how easy this is?
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I read it, I would just like to know where he was that he didn’t hear a word of this case, even the name. You’ve got people from Australia screaming for the death penalty here, and they don’t even have one. Couple of problems with his reasoning as well.
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Btw. Sandra or John, does anyone have an idea of what the foreman meant by the following:
“The sex tape was rather shocking and embarrassing.” The call happened on May 10th, 2008 and the Foreman noticed that during some of Travis’s statements in this phone call Jodi would stop and ask him to repeat what he said. “I heard her saying “what?” to Travis on the call” It was then the Foreman said it clicked that Jodi was recording this sex call and this is when the pre meditation began, “I felt this was evil planning.”
So if I understand correctly, the foreman believes the premeditation began in May 2008, she thought: I’m gonna kill him and I’ll use this tape as my defense when I’m caught? Is that right? Is that what the “scientific type” guy thought?
And what does premeditation have to do with what he, they, were tasked with? Premeditation was established in the trial, the issue here was aggravator vs. mitigating factors, am I wrong?
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The Jury foreman ‘happened’ to come across the Trial Diaries site and thought she gave a fair coverage? Red flag right there. So this guy never heard about Jodi Arias and he judged her demeanor on the stand and found it contradictory to what defense experts said? He is not a psychologist, doesn’t know what meds she’s on and six years have passed. Doesn’t he know that PTSD and meds change how you body and mind connect with your emotions?
He is constructing a scenario about the sex tape because she makes him repeat questions, which is the last thing you do at a resentencing trial.
He was supposed to look at mitigation factors. So the fact that the prosecution lied about porno and viruses and called Arias a liar because of their mistake didn’t bother him?
He liked Janeen DeMarte and Martinez. Geffner was just a funny guy. Case closed. Maricopa we have a problem.
And they have the nerve to say Juror 17 was biased.
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I could care less about Jodi Arias. However, I believe the integrity of the process should be upheld. I understand that it is a slippery slope to go down. But seriously, as a lawyer, I can’t believe that you think it’s okay if juror misconduct is proven. If she was a stealth juror, she wouldn’t be the first or last. What should we do? Just “gloss over it”? Refer to
Wardlaw v. State, 185 Md. App. 440,451 (2009).
“Upon discovering the juror’s conduct, the trial court refused
to declare a mistrial; however, the Court of Special Appeals
characterized the juror’s research as “egregious misconduct”.
The appellate court said that upon discovery of the juror’s
misconduct, the jury should have been voir-dired to determine
whether it could still render an impartial verdict based on the
evidence presented at trial. Since the jurors were not polled,
the court failed to rebut the presumption of prejudice which
attaches as a result of egregious misconduct by a juror.
Court of Special Appeals held that the trial court’s failure to
voir dire the entire jury was reversible error.”
Judge Sherry Stephens only polled 2 jurors. She should have polled all jury members.
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Hello Nancy.
I wouldn’t say it’s “okay” if there was juror misconduct. But as you say, it’s a slippery slope and a dangerous road to travel. If the prosecutor goes after a juror who has voted against him, you deter every juror from voting against the prosecution, and that would be the case even if going after the juror was warranted.
Doesn’t seem to be any reason to believe going after this juror would be warranted. Sounds like she was the only one who was keeping her head and giving serious consideration to the law and the evidence.
This was not a close death penalty case. The remarkable thing was that 11 of 12 didn’t figure that out.
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Hi JMRJ,
Thanks for your thoughtful reply. I agree that going after this
juror would not be fruitful, in the Arias case. I just wonder how we can maintain juror integrity with the increasing presence of social media. I realize that it is and always has been about the expectation of prospective jurors being honest during voir dire. The new ” trial by twitter” really is beyond the pale, don’t you think? There is no legal precedent.
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Well, I wouldn’t say there is no legal precedent. And you raise a prescient point, I must say.
Almost a century ago the Supreme Court tackled the question of “mob-dominated” trials as a matter of due process in a case called Moore v. Dempsey, opinion by Oliver Wendell Holmes. Succinctly, it was held that a trial dominated by a threatening mob deprived the defendant of due process of law.
That said, the principle has never been invoked much. But it did come up 30 years later (mid-late 1950’s) in the extremely high profile case out of Cleveland of Sam Sheppard, who was accused of killing his wife. There was a media circus around the case and eventually the Supreme Court ruled that the “carnival atmosphere” of the trial deprived Sheppard of due process of law. F. Lee Bailey successfully made the pitch to the SCOTUS, relying pretty much on Moore v. Dempsey, and became a household name.
I’d point to two significant things here. First, I’m not aware of any case, anywhere, overturning a conviction on due process grounds because the defendant’s trial was mob-dominated since the Sheppard case in the SCOTUS, and that was 1966, almost 50 years ago. More time has elapsed between then and now than had elapsed between the Moore decision and Sheppard.
The second thing is that the Sheppard case had an element of awareness that technological advances (television, radio) had produced a potential mass audience for a high profile trial that had not previously existed, and that had contributed to the ‘carnival’ atmosphere.
That era – the 1950’s to 1960’s – was a relatively brief period in which appellate courts regularly voiced concern for the fairness of trial court proceedings and the rights of the accused. There was a dramatic shift shortly thereafter: by the late 1970’s the culture of the legal profession and the judiciary had entirely changed.
So in sum, case law has reacted to technological and media developments affecting trials before. I think you’re absolutely right that the social media revolution has added a new dimension that deserves scrutiny and will probably receive it at some point. The difference with social media – unlike, say, telephones and mass broadcasts that have been around for much longer – is that “communities”, so to speak, were not able to spontaneously form, or at least nowhere near as easily: the telephone permitted only one-to-one communications, and the mass broadcasts were centrally controlled. I guess the significance of this is that people couldn’t feed off each others’ emotions and rhetoric, generating the irrational frenzy that we have seen in the Scott Peterson case, the Casey Anthony case, the Amanda Knox case, and the Jodi Arias case.
The frenzy phenomenon did exist before – think Salem witch trials – but ironically the growth of cities and media meant that that kind of thing could only happen in a small place where a real physical community actually existed and could be whipped up because they were a tight-knit group, independent of the particular controversy that enveloped them. It would never happen in a place like Cleveland, or New York, unless the media started whipping up the mob, and after the Sheppard case, and because frankly people were for a time more conscientious about being fair, both the media and the public were more responsible. That might also have had something to do with the media setting a good example.
Today the media sets a terrible example anyway, the restraints have come off and we have this new social media that allows a virtual “community” to form that has no identity other than its devotion to hanging this or that defendant, or exonerating them. It’s a community, if you will, formed around an idea, not geographical proximity.
Does this affect the fairness of criminal proceedings? I don’t think there’s any doubt but that it does. At the same time, I think this would be far more difficult to address than the media frenzy in the Sheppard case, and I think we also have a judicial culture that is far less inclined to weigh in on such an issue than it would have been 50 years ago. For the most part, appellate judges really don’t give a shit about fundamental fairness in criminal proceedings. About due process, in other words. For reasons having to do with a profound intellectual impoverishment, they are unwilling or unable to identify any criteria for it. Look at a few exchanges I have had with Judge Kopf on his blog and this one.
In any case, you have raised a very interesting issue that at some point I hope people, and especially lawyers and judges, will seriously consider. I wouldn’t be too optimistic that this will happen in the near term, though.
Thanks again for the comment.
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Excellent answer and I appreciate the significant legal points you made. I tend to think of the internet as the modern day, “wild west”. But you are so spot on about the past media caused frenzies and jump on the band wagon mentalities.
You gave such significant legal arguments that I think you should be a lawyer. . .oh, wait, lol! Thanks for the thought provoking article!
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There’s no doubt mob mentality+social media affect due process, but I’ll even raise you one: It’s contaminating the entire nationwide jury pool, including those who have never heard of Jodi Arias (or whoever the particular celeb-defendant happens to be).
Because it’s through social media that the public transmits what is expected of jurors. The pro-DP 11 from the Arias trial have been throwing around the term “Justice for Travis,” which some see as proof positive those jurors must have violated the admonition and visited Facebook. Except they didn’t need Facebook, that’s the scary part! “Justice for ____” is interchangeable with every victim in these cases .
I missed the Scott Peterson thing completely and I didn’t hear of Casey Anthony until shortly before her trial was over. But I’m sure “Justice for Lacy” and “Justice for Caylee” were in the air. Never mind that that is not the duty of a juror, but the jury pool knows perfectly well what the public demands of them and it’s the public they have to go home too.
And the mob is dangerous. Some of those Casey Anthony jurors had to move away. There are people STILL hunting for Casey Anthony! The “holdout juror” this time is under police guard. And don’t you love the phrase “holdout”? As if a death verdict is the expectation — as, of course, it was.
Every potential juror knows what is expected of them these days, and it would be very hard to resist that over some high-minded ideal, and that in itself has contaminated the whole jury pool.
So what do you think the appellate issues are in the Arias case? (If any of them are non-specific, like “ineffective assistance of counsel,” what are some examples?)
And…..well….yeah, it’s me again…. I just can’t seem to stay away from here 🙂 But I’m sorry I stomped out in a huff last time. It actually had nothing to do with you. Somebody else had replied assuming I was “smitten by Travis” (or a “pedo-hugger,” as much of the pro-Jodi Internet charmingly puts it).
I didn’t object so much to the assertion as to the mindlessness and gullibility of the way people talk about these cases. Twitter is a real cesspool. These trials have turned into a vicious team sport with a vivid and violent imagination.
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Oh, and John, have you seen this yet? It’s one of the crime bloggers interviewing the retrial foreman:
http://thetrialdiaries.com/exclusivethe-foreman-from-the-jodi-arias-trial-speakshear-his-story/
The whole thing is overlong and, prior to the section titled “In the Foreman’s Words,” the only bit worth reading is where the foreman decided Jodi premeditated the murder (no, they weren’t making a finding on premeditation and it’s not an aggravating factor anyway — but just drop that kind of logic right now before you read any further)……he decided Jodi premeditated the murder when, during the famous phone sex tape, she kept asking Travis to speak up.
Don’t you see??? She wanted to make sure he could be heard on the recording, because she was creating the recording to lay a groundwork of false evidence for her future bogus self-defense claim once she’d murdered him! (Maybe it makes sense if you’re high….)
But scroll down. When he starts describing their deliberations in considerable detail, it gets really interesting. Some highlights:
–Only one of them understood the jury instructions and interpreted them for the rest of the jury.
–In an effort to “help” Juror 17 to “see things for what they really were,” the other jurors cussed at her, shoved autopsy photos in her face, and one of them (a trauma nurse) explained the injuries in prurient detail (!!).
–The foreman nurtured a fantasy of “what I would do when we delivered the death penalty verdict to the Alexander family.” Namely, he planned to swagger into the courtroom and give the family a smile and a nod. (Hey, if jurors can conduct investigation during deliberations…..then, fuck it, why not effectively release the verdict before its read in a blatant show of bias? Rules? Arizona don’t need your steenking rules!)
You really should read the whole disturbing thing, John.
http://thetrialdiaries.com/exclusivethe-foreman-from-the-jodi-arias-trial-speakshear-his-story/
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I like this quote:
If no criminal history of any kind whatsoever doesn’t qualify as a mitigating factor under the ‘criminal history’ category, then they have simply written this aspect out of the instructions. What a completely irrational conclusion.
And none of them found it to be a mitigating factor? Including juror 17? I suspect that in the foreman’s mind “us” didn’t include her.
Ugh.
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The jury isn’t instructed to count any particular factor as aggravating or mitigating, are they? Isn’t that the point they are charged with deliberating and deciding for themselves? So there would be nothing wrong with overlooking criminal history as a factor either way.
In any case, Juan could mansplain to you why Arias’ youth and clean record are not mitigating: Because she’s just too young to have acted on her criminal impulses yet! See how that works?? Give her time and surely she would off the next person who crosses her. Ergo, no criminal history is actually an aggravator because it shows the defendant is sneaky enough to avoid detection and, with time, will accrue a rap sheet. I mean, she is a psychopath, right? You can diagnose that just by looking in her evil, dead shark eyes.
/sarcasm
My hunch is that Juror 17 wasn’t buying the state’s case at all. She supposedly identified the domestic violence as a heavy mitigating factor for her. That suggests to me that she may believe the killing of Travis Alexander was precipitated by him attacking Arias, from which she had to defend herself. What does a retrial juror do if they’re instructed to accept the guilty verdict but they don’t believe the defendant is guilty?
I don’t think the foreman is suggesting the jury was originally divided between life vs. death. The first vote was 7 for death, four undecided, and 1 for life. The next poll was split 11 for death, one for life. Then (in an interesting twist) after they reviewed the journals and text messages, they were split 10 for death, 1 undecided, 1 for life. So somebody leaned towards death, then jumped back to undecided, but we can’t necessarily conclude that all those undecideds were favoring life all along.
But, yeah….the foreman seems to be describing a high-pressure, coercive deliberations setting, with a lot of browbeating to which the foreman seems completely oblivious — e.g., he blithely describes trying to “persuade” Juror 17 by shoving autopsy photos under her nose and (more alarming) having the juror who is a nurse explain how terrible the injuries were. So they were taking on an investigative role, considering facts not in evidence, deliberating questions that were not before them, etc.
But, what the hell? Why not? Mr. Foreman admits upfront that only one of them even understood the jury instructions and, rather than ask the judge to clarify, they had that one juror interpret the instructions for them. They had no idea what the hell they were supposed to be doing. Maybe even Juror 17 didn’t understand, but she seems to have been persuaded by the defense’s initial self-defense argument of an attack precipitated by Travis.
Further evidence of the foreman’s lack of self-awareness: In the course of describing how Juror 17 “refused” to deliberate, he offers specific examples of her deliberating — taking notes, creating a chart of mitigators vs. aggravators, answering questions, etc. But because she didn’t come to the same conclusions and she stuck to her guns about it, the other 11 define that as “refusal to deliberate,” meaning “refusal to acquiesce.”
Q.E.D., The nationwide jury pool is contaminated by the hostile environment created by these social media spectacle trials — even if the potential juror happens to be unfamiliar with one specific case — and, as a result, the jury system itself is in deep shit.
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Jessie, once again a very thoughtful comment. Let me quickly address two things. First, when you say:
“The jury isn’t instructed to count any particular factor as aggravating or mitigating, are they?”
I don’t know what the jury was instructed, but the jury foreman’s interview describes a deliberation process where they were systematically considering enumerated mitigating factors, and they found the lack of a criminal history not to be a mitigating factor, apparently without too much difficulty since it’s a one liner. The impression given is that they were instructed to consider the mitigating factors systematically like that, and that’s probably in the statute, but it could be otherwise and they just came up with it on their own. The latter seems unlikely, though.
Second, with respect to the contamination of the jury pool, you are quite right. If the judiciary were not a completely broken and feckless institution, the public would be instructed to be more somber and serious about these things when a judge dismissed a criminal case because the social media frenzy had contaminated the process beyond repair, so it could never be the process that is due. That would quickly tame the barbaric blood-lust, in my opinion, because the more those types of people ginned themselves up, the more likely their very base desire would be thwarted. In fact, the Arias case would have been nearly perfect for this.
But of course all that’s a pipe dream. For the foreseeable future we are going to be stuck with degenerate circuses in this or that case, dominated by the most febrile and pandering twitter commenters.
Other than judges taking charge – which isn’t going to happen – the only thing I see is that it eventually plays itself out and we accept whatever damage has been done to our institutions and our collective soul. And the damage could be considerable, unfortunately.
Ugh.
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The other thing that’s kind of interesting is that the reported 11-1 isn’t really accurate. The first vote was much close, I think he said 7-4 and 1 not sure.
In other words, the death people really “persuaded” most of the non-death people. An interview with one of those who changed their mind might be enlightening, but I’m not holding my breath.
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JMRJ, Perhaps this will help. This is the jury instruction regarding mitigating factors given to the jury during the first penalty phase of the trial. While the mitigating factors presented this time around vary slightly from last, I assume the jury instruction would have been the same otherwise (other than the portion that addresses disregarding instructions given during other phases).
“Mitigating circumstances are any factors that are a basis for a life sentence instead of a death sentence so long as they relate to any sympathetic or other aspect of the defendant’s character, propensity, history or record or circumstances of the offense. Mitigating circumstances are not an excuse or justification for the offense but are factors that in fairness or mercy may reduce a defendant’s moral culpability. Mitigating circumstances may be offered by the defendant or state or be apparent from the evidence presented at any phase of these proceedings.
You are not required to find that there is a connection between a mitigating circumstance and the crime committed in order to consider the mitigating evidence. Any connection or lack of connection may impact the quality and strength of the mitigation evidence. You must disregard any jury instruction given to you at any other phase of this trial that conflicts with this principle.
The fact that the defendant has been convicted of first degree murder is unrelated to the existence of mitigating circumstances. You must give independent consideration to all of the evidence concerning mitigating circumstances despite the conviction. The circumstances proposed as mitigation by the Defendant for your consideration in this case are:
1. Defendant was 27 years old at the time of the offense.
2. Defendant has no prior criminal history.
3. Defendant was a good friend.
4. Defendant lacked support from her family.
5. Defendant suffered abuse and neglect as a child and as an adult.
6. Defendant tried to make the best of her life.
7. Defendant consistently tried to improve herself.
8. Defendant is a talented artist.
You are not limited to these proposed mitigating circumstances in considering the appropriate sentence. You also may consider anything related to the defendant’s character, propensity, history or record or circumstances of the offense.
The defendant bears the burden of proving the existence of any mitigating circumstance that the defendant offers by a preponderance of the evidence, that is, although the defendant need not prove its existence beyond a reasonable doubt, the defendant must convince you by the evidence presented that is more probably true than not true that such a mitigating circumstance exists.
In proving a mitigating circumstance, the defendant may rely on any evidence already presented and is not required to present additional evidence. You individually determine whether mitigation exists. In light of the aggravating circumstances you have found, you must then individually determine if the total of the mitigation is sufficiently substantial to call for leniency. Sufficiently substantial to call for leniency means that mitigation must be of such quality or value that it is adequate in the opinion of an individual juror to persuade that juror to vote for a sentence of life in prison. Even if a juror believes that the aggravating and mitigating circumstances are of the same quality or value, that juror is not required to vote for a sentence of death and may instead vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence even if the defendant does not present any mitigation evidence.
A mitigating factor that motivates one juror to vote for a sentence of life imprisonment may be evaluated by another juror as not having been proved or if proved, as not significant to the assessment of the appropriate penalty. In other words, each of you must determine whether in your individual assessment that mitigation is of such quality or value that it warrants leniency in this case.
The law does not presume what is the appropriate sentence. The defendant does not have the burden of proving that life is the appropriate sentence. The state does not have the burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide what you individually believe is the appropriate sentence. In reaching a reasoned, moral judgment about which sentence is justified and appropriate, you must decide how compelling or persuasive the totality of the mitigating factors is when compared against the totality of the aggravating factors and the facts and circumstances of the case. This assessment is not a mathematical one but instead must be made in light of each juror’s individual, qualitative evaluation of the facts of the case, the severity of the aggravating factor and the quality of the mitigating factors found by each juror.
If you unanimously agree there is mitigation sufficiently substantial to call for leniency, then you shall return a verdict of life. If you unanimously agree there is no mitigation or the mitigation is not sufficiently substantial to call for leniency, then you shall return a verdict of death. Your decision is not a recommendation. Your decision is binding. ”
By the way, have you seen the interviews with Juror 17? It appears she’s the only one on that jury who bothered to actually read the instructions!
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Well, from the foreman’s “interview”, there were initially 4 juror who were undecided. But, by the end of the first day of deliberation, there was only 1. However, at some later point, one other juror became undecided again for a brief moment.
I had the same thought as you. I would really like to hear from one of the undecided jurors as to what exactly persuaded him/her. Since no one has come forward thus far, and given the persecution of Juror 17, I think those 4 are going to remain quiet and live their lives.
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