Sounds pretty fair and objective to me.
Discuss. Open thread.
On the other hand, we’re not just confused about Jodi Arias.
Ugh.
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Lawyers on Strike · Because the System is Broken
Lawyers on Strike 
I so agree with you. She considered the mitigating factors worthy of sparing a life. After listening to the other jurors, she seems to be the ONLY one who didn’t enter into her civic duty believing that her “job” was to find for the death penalty. The last sentence says it all: “Travis’ life mattered and I was asked to put my personal feelings aside and to just look at the evidence they presented. And to go with my honest belief.”
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Yes. But she must have forgotten she lives in Maricopa county, Arizona. She actually thought she possessed free will! I hope she finds a way to get to bigger media. I really do. I also wish someone would fetter out the other 4 lifers from the first trial. You know, if they’re still among the living.
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Were only pro-death penalty people allowed on the jury? Were you automatically disqualified if you were against the death penalty.
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Yes.
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I love the “usual question”: What if it was your son? Well if the victim were her son she could not make an objective decision as she would be emotionally affected. This is precisely why victims’ families can never sit on a jury. Furthermore, how can anyone ask such an inane question? The answer to this hypothetical question is impossible for anyone to answer, unless/until they actually find themselves in that situation. It’s worth noting that there have been many people who have lost relatives, including children, who have not wished for the death penalty of the convicted, even fought against it. Some people hold the view that an execution will not honor the life of their loved one.
http://www.deathpenaltyinfo.org/new-voices-victims-families
Everything we’ve learned to date tells us that the “11” went completely against the jury instructions and juror 17 is actually the only one who not only understood what she was tasked with but actually did it. It is a virtual certainty that the death at all costs jurors did not have the foggiest as to what the aggravating factor was, they have no idea what it was which actually made Arias eligible for the death penalty, and went on their merry way inventing aggravating circumstances. Ironically, the one thing they were allowed to do, as per instructions, is think of mitigating factors of their own, ones not given to them by the defense, this however they were not even remotely interested in. This is absolutely astounding as all the things the jurors were throwing around during deliberations had nothing to do with the single aggravating factor which made Arias eligible for the death penalty (and which coincidentally was the impetus for Horn’s little “typo” perjury as well as Flores’ “confusion” perjury). Autopsy photos, in and of themselves, reveal nothing about aggravation, intent or even crime, as anyone who has seen an autopsy photo from a fatal car accident will confirm. Book deals and time served are equally irrelevant. They were specifically NOT to invent their own versions of what is a prerequisite for the death penalty, but much like the first jury, this was completely lost on them. Their highly emotionally charged arguments, relentless pursuit of the ultimate penalty and their apology to the Alexander family for failing to deliver death was as if the alternate was a Club Med vacation in the Greek Isles.
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It is true: the question is completely inane, reflecting an appalling failure on the part of the questioner – a media person – to appreciate the nature of, well, not only the juror’s role but the very idea of the whole process itself. As I said (I think in response to Jessie), at some point if the legal profession or the judiciary were not every bit as unserious as the media, the public and the media would be taught an important lesson about their third branch of government when a judge presiding over a fiasco like this would simply dismiss charges against some murder defendant because of the conduct of the public and the media and resulting contamination of the jury pool.
As I think I’ve said before as well, one of the most remarkable things here is that objectively, and in a comparative sense, this was not even a close question. Even assuming guilt, which is itself doubtful, and granting every
favorable inference to the prosecution’s tirades, the DP was completely unwarranted here. When I’ve made the simple point with some twitterers that the lack of any prior criminal history all by itself is sufficient for a rational juror to nix the DP I repeatedly get the fatuous response that that would mean everyone gets “one free murder”, as if this was 1) even a remotely sensible objection when, after all, we’re talking about murder; and 2) a sentence of life in prison can sensibly be characterized as a free pass.
When I get past the sheer stupidity of what went on in this fiasco from beginning to end, though, I’m of the opinion that it poses an interesting and important challenge to lawyers professionally, to the judiciary, to the media and to the general public. I guess we need to decide whether our court proceedings retain even a semblance of their proper function – a sober and systematic process for resolving disputes – or whether we are content that they have degenerated into a barbaric form of bread and circuses – the only one left where, as with the Romans of antiquity, death can be explicitly in play to slake the blood thirst of the mob.
It is rational to be disgusted, but we should still think this through for our own sake.
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Indeed we must think it through. After reviewing this fiasco, listening to and reading the interviews with these jurors, can we still believe that our jury system involves reasoned judgment and common sense? Why did 11 members of this particular jury not believe it was important to follow the judge’s instructions to them? This is the real time effect of trial by social media!
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They didn’t understand the jury instructions. The foreman was very upfront about that. And rather than ask the judge to clarify, they had one juror, who claimed to understand the instructions, interpret it for the whole jury. They didn’t have the foggiest idea what they were supposed to do.
And that’s not the worst of what happened in deliberations. That honor would have to go to either:
(a) The foreman deciding the murder was premeditated (a question outside this jury’s scope anyway) when he heard on the sex tape that Jodi asked Travis to speak up. Right then he KNEW — the way a dog knows it has an itch — that she created the sex tape as part of a scheme to murder him and then claim self-defense. (Hollywood called; they want their plot back.)
or,
(b) When the trauma nurse juror starts describing how the injuries were caused based off the autopsy photos. (Jurors are strictly prohibited from conducting any kind of investigation. Not to mention those autopsy photos were prejudicial. The injuries were terrible, but decomposition and autopsy made them look significantly more gruesome.)
http://thetrialdiaries.com/exclusivethe-foreman-from-the-jodi-arias-trial-speakshear-his-story/
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I totally agree, Jessie. In my opinion though, that’s perhaps of the most complicated aspects of a penalty phase retrial when looked at from from the perspective of a juror aka “ordinary person.” They weren’t tasked with decided guilt/innocence or premeditation. They were only tasked with deciding life or death. As an average every day person, how do you comprehend such a task properly? How can you not be tempted to revisit the guilt phase all over again? (Then again, had I been on that jury, I would have wanted to question so much of the “evidence,” I wouldn’t have been able to find Jodi guilty in the first place. I still scratch my head at the finding of felony murder and premeditated murder anyway. Another jury that didn’t understand its instructions!)
I have never truly understood why the autopsy photos were admitted as evidence in any phase of this fiasco. They were far too prejudicial. There were plenty of crime scene photos admitted. While still revealing decomposition, they weren’t quite as gruesome as the autopsy photos. In fact, that may well become an issue for appeal — assuming there was an objection to their admission and I would find it difficult to believe there wasn’t.
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Martinez wound up floating three theories for felony murder. Two of them were just stupid, but one was pernicious.
The idea with felony murder makes sense: If in the course of committing a felony, you accidentally kill somebody, that can be charged the same as first degree murder, including a possible death sentence. The idea of that makes sense. If you rob a bank at gunpoint and accidentally kill somebody, it offends one’s sense of justice that you might only be charged with manslaughter because you never MEANT to kill anybody while robbing the bank.
But Martinez’s theories of this concept made no sense. One was that, as soon as Jodi began killing Travis, she was no longer welcome in his home and was therefore committing burglary. The other was that, ok, if she says she used Travis’ own gun to shoot him, then the precipitating felony was that she STOLE his gun to kill him. He certainly didn’t give her permission to take the gun. Those are just asinine.
The one that is more dangerous than ridiculous was that, in the course of killing Travis, Jodi committed felony battery. (So he’s simultaneously arguing that she premeditated the murder AND that she didn’t mean to kill him but did so accidentally in the course of assaulting him. I gather lawyers are permitted to throw contradictory shit against a wall like that and see what sticks.)
The major problem with this latter theory is that ALL murders involve battery. So by Martinez’s theory, all murders are first-degree murders. There couldn’t be any other kind. The battery that kills the person would always be a precipitating felony to justify felony murder charges (essentially first degree murder).
But to the sort of cretins hassling John on Twitter, I’m sure the idea of maximum charges for all unlawful killings carries a certain cachet.
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There is actually a formal legal definition of what you describe Jesse, it’s called the merger doctrine, and Martinez knows it damn well, no matter how mentally deficient he may be.
” Felony-murder cannot be charged if all the elements of the felony are included in the elements of murder. This is known as the merger doctrine, which holds that if the underlying felony merges with the killing, the felony cannot constitute felony-murder.”
http://legal-dictionary.thefreedictionary.com/Felony-Murder+Rule
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The crux of the problem seems to be that Arizona changed their legal definition of “burglary”, now basically almost anything outside your own house qualifies as burglary and hence felony murder. Juan took advantage of this stupidity.
http://www.azcriminallawsexcrimes.com/violent-crimes/why-the-felony-murder-allegation-against-jodi-arias-is-nonsense/
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Actually, mn and Interested, Arizona has really fostered this prosecutorial over-reach through the legislature:
Felony murder is bad law to begin with, but apparently we can trust the good people of Arizona to make it worse.
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Martinez (along with multiple other prosecutors, especially those in AZ) seems not to be at all concerned with the very thin line between zealous advocacy and due process violations. While lawyers have a duty to zealously advocate for their clients, a prosecutor is held to a higher standard and has a duty to ensure that “justice shall be done.” JMRJ discusses Mooney and Brady all over this blog. Prosecutors cannot present false evidence or withhold evidence (even though they do, all the time). One would think presenting fundamentally inconsistent theories should fall somewhere under the doctrine of estoppel. But, as I understand it, prosecutors are allowed to present alternatives (even if patently inconsistent and irreconcilable) for the fact finder (i.e., the jury) to decide upon.
I’m very sorry to hear John is being hassled on Twitter. I find it difficult to read there because of all the furor and hatred.
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Actually, the better view is that inconsistency by the prosecutor is a due process violation, but you have to give Pyle v. Kansas a close reading. In any event, that’s what that case was all about:
But like a lot of things surrounding due process, this has gotten pretty confused. There are whole law review articles dealing with the problem of prosecutor inconsistency that don’t even cite Pyle v. Kansas:
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1442&context=californialawreview
Author is one of my professors. I’ll have to call her about that one.
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Jessie, a couple of quick things because I have a few other matters pressing.
First, I can’t see how an accidental killing, even in the course of committing a felony, can be death penalty eligible. I think it’s sufficiently harsh to characterize it as “murder” at all, and indeed my position is that the felony murder rule should be abolished. For me it has always corrupted and confused the very term “murder”, by applying it to a situation where the accused both did not kill anyone and did not intend to kill anyone, albeit someone was in fact killed.
Second, I don’t see how a voluntary manslaughter charge offends justice in the situation you describe. That’s in fact what it is: the defendant is guilty of armed robbery and voluntary manslaughter. Both are very serious crimes carrying long prison terms in just about every jurisdiction.
Bear in mind what felony murder really is: vicarious liability for someone else’s murder. You wind up liable for murder because you agreed to commit a felony with the murderer, but did not agree and did not even know that the murderer was going to commit a murder. If you knew, you’d be guilty as an accomplice to murder or as a co-conspirator.
The problem with felony murder is that it isn’t murder at all.
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Not all first-degree murders are death penalty eligible, John. Some states don’t even have the death penalty, but they still have a felony murder rule.
Yes, I think it offends justice to charge felony murder as manslaughter, but we should clear one thing up first. Most states are getting rid of its application for accomplices unless they were significant participants in the crime (and according to that link MN posted, the Supreme Court has disallowed the death penalty for felony murder accomplices). So let’s first be sure that we’re talking about the same thing here — its application to the person(s) who actually caused the death, not the getaway driver.
I just think there’s a qualitative difference between recklessly causing someone’s death (e.g., running a red light and killing someone) versus causing someone’s death in the course of committing a violent crime. And I think the latter should be considered murder. Regardless of the lack of intent to kill, that’s a foreseeable outcome of a violent crime.
I don’t understand how the bank robber who accidentally shoots the teller could even be considered voluntary manslaughter. How exactly did the teller “provoke” their own death? How is that in any way mitigated?
Now, Jodi Arias (to get this back on topic) may have committed voluntary manslaughter. At least I think it’s the most serious potential crime she might have committed. Because there was a pretty clear element of provocation there, and then it would be up to the jury to decide whether her response was justified as self-defense or not.
Assuming for the sake of argument here that it was she who killed him, that’s a pretty clear example of voluntary manslaughter. But “Oops, I killed a man while robbing him, but honest I didn’t mean to”? Not so much.
And I don’t consider myself a bloodthirsty sort. I hope I’ve proven myself on here to not be a pitchforker. But conflating these two types of crimes also implies a heavier degree of culpability for someone who really does cause an unintentional death through reckless behavior, which rightly should be considered a lesser crime.
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But Jessie, the getaway driver would always be held to be “a significant participant in the crime”.
I realize that various codifications of the rule have muddied the water. And from your comment it seems we were not really talking about the same thing. I’m referring to the traditional, common law felony murder rule. It would only be applied to a participant in a felony that did not kill someone and did not intend to kill anyone. So, for example, a wheel-man leaves the scene at high speed, some elderly couple actually runs a red light in front of him and he plows into them, killing them.
Because the felony murder rule applies when someone dies during the crime “or in immediate flight therefrom” the wheel-man and every other participant is thus liable for murder under that rule. As you might have guessed, real case that I know of.
Let’s take your bank robber accidentally shoots teller example. Let’s say he has an accomplice with him in the bank, also holding a gun on everyone. Let’s say robber #2’s gun is unloaded and #1’s had only the one bullet he intended to fire into the ceiling, not hurting anyone. #1 fires warning shot into the ceiling but it ricochets and hits the teller, killing her.
Is there any genuine “murderer” in this scenario? Bank robbers and felons, certainly. Unsavory characters. The felony murder rule makes #2 a murderer on any interpretation I’m aware of. #1 could also be a “depraved indifference” murderer here in NY.
But in my opinion neither one is a murderer. The sane thing is Voluntary manslaughter for #1, and no homicide charge at all for #2.
But I don’t think anyone who thinks otherwise is blood-thirsty, Jessie. And certainly not you!
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Ok, definitions first: Enmund v. Florida specifically determined that the getaway driver is a minor participant (http://en.wikipedia.org/wiki/Enmund_v._Florida). So I think we can nix that the felony murder rule would apply to such a circumspect participant.
And according to that link MN shared with us (http://legal-dictionary.thefreedictionary.com/Felony-Murder+Rule), the traditional common law definition of felony murder — which could even be applied to a police officer who accidentally killed someone in the course of trying to stop a felony — was abandoned some time ago as obviously illogical.
Anyway, examples are useful. I’ll provide two that occurred in the town where I live. In the first, a man was driving home from work late one night. He’s on heart medication and he’s due to take a dose. He reaches into the armrest compartment of his car, and pops what he believes is his heart medication.
Except it was Ambien. Next thing he knows he’s waking up in the hospital, having fallen deeply asleep at the wheel upon which he struck and killed four people. He pleaded guilty to involuntarily manslaughter.
In the second scenario, two men ganged up on a woman of their acquaintance. One held her down while the other one raped her. The man restraining her didn’t realize — let alone intend — to choke her death. He didn’t realize he was pressing on her windpipe nor did they even realize at first that they had killed her.
Only one of the men raped her and only the other man killed her. Both were convicted of sexual assault and felony murder because both were significant participants in both crimes.
To conflate those two situations and call them both “manslaughter” is plainly illogical and unfair. The first man had culpability in those four deaths, but it was not murder by any reasonable definition.
Are the second two men murderers? In my opinion, absolutely yes.
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Jessie, you pick one of the best examples for your argument. But I still think voluntary manslaughter, which is a serious crime, covers it. Voluntary manslaughter is more serious than involuntary, and was specifically meant to cover situations like the one you describe. Like someone who assaults another person, but the other person has a heart condition and dies. That’s voluntary manslaughter, almost the classic case of it. How is that different from your rape example?
I guess I just don’t think anyone is a murderer without intent to kill. Holding someone liable for something he didn’t intend is a rare thing in the law. Or should be.
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Or how about this scenario: A lone robber enters a bank (his gun could be a BB gun for all I know), he robs the bank at “BB gun” point. While in progress, Dirty Harry the security guard starts shooting up the joint and accidentally shoots a teller, the teller dies. BB Gun is charged with felony murder, Dirty Harry is given a desk job.
Or how about this: BB Gun goes into a bank and robs it at “BB gun” point, while in progress the bank manager has a massive heart attack and is pronounced DOA at hospital, BB Gun is charged with felony murder.
BB’s a single, unemployed father with no record just two starving kids at home, now he’s on death row.
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But then by your principle, John — that someone should not be liable for an unintentional act — involuntary manslaughter shouldn’t be a crime at all. The driver who runs a stop sign and kills someone should receive nothing more than a ticket for running a stop sign. I think for most people that would offend their sense of justice because the consequences are so much more serious. The whole reason we have laws against running stop signs is because you might kill somebody, and thus doing so should be punished more steeply than just running a stop sign and lucking out.
I can think of lots of examples where intent doesn’t matter. The drunk driver who believes they’re sober and doesn’t intend to drive drunk is still committing a DUI. The parent who uses physical discipline and doesn’t intend to go overboard but breaks the kid’s arm has still committed child abuse. Statutory rape doesn’t even require that the older party know the minor is underage, let alone any intent to commit statutory rape.
That latter one has resulted in some injustices, particularly when both parties are minors, but it defies all logic and fairness for “I didn’t mean to” to erase the consequences of one’s actions, especially when those consequences are as serious as death. In some situations, it’s certainly mitigating, as compared to a mindset of intent, but that’s wholly different from saying the law should not hold someone liable for something they didn’t mean to do.
How is choking a woman to death while raping her different from someone who dies of a heart attack during an assault? In pretty much every way possible. No one caused the heart attack; it’s not a foreseeable outcome of assault. By contrast, the choking was indisputably caused by the person restraining the victim and it is a foreseeable outcome of crushing someone’s windpipe. The fact that he didn’t happen to know he was crushing her windpipe while holding her down so his buddy could rape her is immaterial.
If you’re robbing banks or raping women, you’re taking the chance that if you or those acting with you happen to kill somebody, you’re now in even deeper shit. But unlike with manslaughter, there are no precipitating events (such as driving a car) that were perfectly innocent until somebody stopped breathing. That’s the moral distinction between these two types of non-premeditated killing.
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Jessie, maybe you should go to law school. You’re certainly smart enough.
But you’re just missing something here. The classic fundamentals of a crime are “actus reus” – the bad act itself – and “mens rea” – guilty state of mind. Traditionally, murder is understood as intentional killing, and felony murder was the exception to that.
We are not talking, of course, about an accidental killing in the course of committing a different crime as being not blameworthy or not criminal at all. Indeed manslaughter is a felony, and a homicide, whether voluntary or involuntary. Voluntary manslaughter essentially involves either an ill-formed intent to kill or inflict serious bodily harm, so because of the latter it fits your rape example to a “t”. You’re basically taking the very situation voluntary manslaughter was intended to address and arguing that it should be murder instead. Or also.
But maintaining these distinctions is important. You’ve seen how quickly and easily legal proceedings can degenerate into incoherence, and one of the things that helps, or should help, is observing and understanding traditional bright line distinctions.
In most places, by the way, there is probably more of a distinction between voluntary and involuntary manslaughter that there is between voluntary manslaughter and murder. That is, voluntary manslaughter is similar both in character and penalty to murder anyway, but the level of intent is less blameworthy and so it is punished less. But it is punished.
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What does being smart have to do with being a lawyer? 😉
Seriously….I work with lawyers, so I have an unusual number of IRL friends who are lawyers. Every single one of them has told me I would love law school and hate being a lawyer. For the most part, they are not happy professionally and it’s worse if they’re in litigation — the very thing most of them pictured themselves doing when they started out.
You might get a laugh out of this essay (“Do you really want to practice being the kind of prick who demands that pleadings be thrown out for being one day late?”): http://lawandletters.blogspot.com/2007/11/why-you-shouldnt-go-to-law-school.html
Anyway, so, the definition of voluntary manslaughter: My understanding is that it rests on the idea of mitigating provocation with a lack of intent to kill. Two people get into a bar brawl, for instance, and one throws a punch that hits the other one just right and kills him. That would be voluntary manslaughter.
Or the Jodi Arias case. After degrading her and using her sexually, boyfriend flips out because she dropped his camera. She responds by whacking him with a knife. Provocation but no intent=voluntary manslaughter.
Here’s the definition from that website MN shared:
http://legal-dictionary.thefreedictionary.com/Voluntary+manslaughter
In all the examples I’ve brought up, the victim couldn’t reasonably be considered to have provided provocation. And of course none of them fit involuntary manslaughter, nor first or second degree murder.
Felony murder fits a hole in the types of unlawful killing that is calibrated to the severity of the action. Accidentally killing somebody in the course of a violent crime should carry a higher degree of culpability on par with first or second degree murder. The fact that the actor didn’t specifically mean to kill doesn’t invoke much sympathy in me considering what they were getting themselves up to in the first place.
That’s entirely distinct from the bar brawl scenario or to self-defense gone awry. The definition at that link doesn’t bear much resemblance to the definition you’re providing. There are no provocation circumstances that mitigate the killing if you kill someone in the course of attacking, robbing, or raping them.
Two things at least we can agree on: Juan Martinez’s felony murder scenarios were ridiculous, and even using the most uncharitable and damning interpretation, Jodi Arias did not commit felony murder.
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mn, does merger apply here? (I chuckled out loud at your description of Martinez as potentially mentally deficient!)
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It should apply InterestedBR, IF the predicate felony is assault. If however the predicate felony is burglary then it should not apply imo. The problem is that Arizona, since their revised (Arizona Revised Statute ARS 13-1506 and 13-1507) legal definition of burglary, classifies virtually everything as a burglary, hence making one eligible for felony murder under a myriad of scenarios (which was no doubt the intent of the revision). One of the problems is that Martinez argued both, he’s very flexible that way. The other problem is that the judge seemed to have no problem with this. I’m not even sure the defense fought this in any meaningful way, perhaps they feel it has no real practical implications for Arias (after all, the 7 who voted for felony murder also voted for premed, that’s the absurdity imo). The question here is if Arias was in fact in the dwelling illegally, and how that presence came to be illegal. I’d say the dwarf sold a fantasy to the seven jurors (#jurors =#dwarfs purely coincidental). 😉
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I initially missed your additional link there JMRJ. I am thoroughly disgusted that MO (perhaps it should rename itself the “kill-me-state”) executed a mentally and intellectually impaired man last night in Cecil Clayton. I shouldn’t have, I guess, but I really held out hope that the Supreme Court would grant a stay in this particular case. I do not understand why mentally incompetent people are being executed recently with more and more frequency, it seems (Andrew Brannan, John Errol Ferguson, Warren Hill). How the Supreme Court justices can NOT intervene in these types of cases is beyond me. Does anyone remember Panetti? Was 2007 lifetimes ago? How can anyone say this man killed last night, or the others I’ve mentioned, had any rational understanding of why they were put to death? Just how “crazy” does someone have to be not to be executed? Is wearing a purple cowboy suit to court while representing yourself and subpoenaing the pope, JFK and Christ really the only way to prove that you should NOT be executed?
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