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Saturday, May 25, 2013

Jodi Arias Verdict: What is a Death Qualified Jury?

Verdict in Jodi Arias Trial: Well Sort of

Does the Judicial System Work?


I've practiced law for over twenty years & I was blown away by Arizona's trial procedure.

Was the Jodi Arias penalty phase verdict a miscarriage of justice?
No, absolutely not! Was it the verdict we wanted or Travis's family hoped for? No, but that does not mean it was a miscarriage of justice.


Let me begin by warning you that is will be an opinionated post. I am going to discuss the Jodi Arias Verdict (or whatever the hell it is that they call a verdict) and the death penalty. I'm not including any stats on the death penalty.  I should also say, up front, that many of you will probably disagree with what I have to say and I don't expect my opinion to be a popular one. Okay...we got that out of the way.

After months of hearing testimony in the "trifurcated" trial, the jury in the Jodie Arias trial rendered their verdict. I don't know if you watched it, but listening to the clerk of court announce:

 "We the jury...after considering...unanimously agree that the defendant Jodi Arias should be sentenced to..." Okay, we're holding our breath here...the courtroom is silent, except for each person's own heart thudding against their ribcage


 "Should be sentenced to...no unanimous verdict" 

Okay, maybe I didn't get my quote exactly word for word, but the last line, the most important line, is word for word. WTF?

This post is not about how off the wall I think Arizona criminal procedure is. I want to attempt to explain the purpose of the death penalty, when it is permitted and how a jury can reach the decision to sentence a person to death.

In most states, a capital murder trial is a bifurcated trial. If the jury returns with a unanimous verdict of guilty of first degree murder, it is normally presumed that they have already found that at least one aggravating factor exist because without that aggravating factor, they would not have returned a verdict of first degree murder. The verdict would be second degree murder or another of the lesser included responsive verdicts. However in Arizona, after the jury makes a finding of first degree murder, they have a second mini trial to determine if one of the aggravating factors is present. If they find an aggravating factor they have a third mini trial- the penalty phase.
In most states, if the jury cannot come to a unanimous sentence of death, the sentence is then, automatically, life without parole. In Arizona the state gets a second bite at the apple. Skating dangerously close to unconstitutional, if you ask me. But, you didn't ask me, so...moving on.


The sole purpose of the penalty phase (the second portion of a capital trial in most states) is to determine the sentence. There are only two choices: life imprisonment without parole or death.

Here is where I'm having a big problem with the media and the general ~ public misunderstanding of a capital murder trial and what we call a "death qualified jury."

Yes, each juror sitting on a capital murder trial has been death qualified. What does this mean? It means that they have answered questions posed by the lawyers and the judge and that their answers indicate that if they find the accused guilty of first degree murder that they are willing and able to listen to the evidence presented in the penalty phase, consider the evidence and if they determine that it is warranted, yes they can impose the death penalty.

A death qualified jury does not mean that the jury will automatically impose death as the penalty, if they  return a verdict of guilty of first degree murder. In fact, a person who answers that they would automatically impose death would be disqualified as a juror, just as a person who answers that they would automatically impose life. Either one- a person who would automatically impose death or a person who would automatically impose life, would not be death qualified. That person would not be eligible, by law to sit as a juror in a capital murder trial

Do you see the difference? To be death qualified, you must be willing to impose the death penalty if you deem it to be the appropriate sentence & you must also be willing to impose life if you deem life imprisonment to be the most appropriate sentence.

A person who is opposed to the death penalty, for whatever reason, cannot be death qualified. A person who believes that every person convicted of first degree murder should receive the death penalty, likewise cannot be death qualified.

During the penalty phase, the prosecutor introduces evidence of the aggravating circumstances surrounding the trial. In addition, the victim's family offer testimony (called victim impact) telling the jury how the loss of their family member or loved one has affected them, physically, emotionally, financially, and psychologically.

Then,  the defense introduces what they consider mitigating factors. The law provides a list of certain factors that the jury must consider (notice I only said consider). This list includes, but is not limited to factors such as:

1. Remorse
2. Was the defendant acting under extreme duress or substantial domination of another
3. Age of the defendant
4. Mental health status (defense usually calls a psychologist or psychiatrist to testify during penalty phase

5. Lack of any significant prior criminal history
6. Prior good acts or honorable service in military or other groups/past contributions to the community & society as a whole
7. Was the defendant abused as a child
8. Likelihood that this was a one time occurrence & the defendant does not pose a threat of danger or violence to others
8. Any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime- court allows great leeway here for the defense, to offer just about anything

In other words, the evidence of mitigating factors does not justify the crime but will explain to the jury certain factors they must consider before deciding whether to give the death penalty or a life sentence


The jury must consider all the aggravating and all of the mitigating factors. The amount of weight that the jury gives each individual factor is up the the jury. It's not a contest of numbers. If one side has five aggravating factors and the other side only one mitigating factor, the jury can choose to give more weight to the one factor than a whole list of factors. The law only requires that the jury consider all the factors.

The next crucial issue to understand is that the death penalty is reserved for the worst of the worst crimes, worst of the worst offenders. It is not appropriate in every case. Who decides whether the particular case is the worst of the worst? The jury

Believe me, I know that for the victim's family, having lost someone they love deeply, the case that involves them, the case that took their loved one from this earth, forever...it is the worst of the worst for them. But, the jury has to consider the crime in relation to all crimes.

The death penalty is appropriate in my opinion for psychopaths and individuals who we know or believe will kill again, if ever given the chance.

Is brutally, butchering Travis Alexander, cutting his throat and shooting him in the face- the worst of the worst of all crimes ever committed? I don't know. It wasn't up to me. What do you think?

Personally, when I think of the very worst cases I think of child killers, people who torture others, kill the elderly, kill multiple victims, serial killers. Please do not misunderstand me. I'm not in any way deprecating the seriousness of what Jodi Aries did. It was a cruel and heinous act. I believe that was the aggravating factor that the jury found, cruel & heinous.


What the general public appears to be confused about: 

As soon as the verdict was announced HLN was outside the courtroom interviewing spectators and one woman's response worried me. This is what she said:

"I can't believe the jurors were picked knowing this was a death penalty case and they can't come up with the right verdict. It's just not right."

Think about that statement.  I mean, I want you to really ponder it, mull it over, connect it to something concrete. Do you see anything wrong with the statement?

Her statement implies that the only, right verdict- is death. That's not right and I am afraid that far too many people feel the same way and have the same misunderstanding about what a death qualified jury is.




I hope I don't get nuts here, but I'm about to talk about Nancy Grace. I watched her do the same thing with the Casey Anthony trial coverage.  I was shocked and proud with Dr. Drew actually called Nancy Grace on her sensationalized bias. 

Nancy Grace asked Dr. Drew, what went wrong with the the jury, or the legal system in the Jodi Arias case. Dr. Drew responded by saying something like, "Well, a better question is what went right?" 

Nancy Grace jumped his ass, just like she does every guest who does not agree with her and give her the answer she wants to hear. Dr. Drew finally called her on it by saying, "Well Nancy, it sounds to me like what you're saying is that the system only works if they jury returns a verdict of death." She got belligerent and told him to get his hearing checked. She never answered his question and you know what's so disturbing? Nancy Grace and so many others, media and also average citizens truly believe that the system failed because the jury failed to give Arias the death penalty.



That is wrong on so many levels. You want to know why? 

 The fact that this death qualified jury who spent four or five months listening to the witnesses and viewing the evidence and even questioned Arias on the stand, (she was on the stand eighteen days, I believe), the fact that they could not come to a unanimous decision is proof that the system can work and in this case, did work.


As attorney's we always ask this question during jury selection. I'm going to pose it as if from a defense attorney:

"Mr. or madame juror, if during the penalty phase, the vote is eleven to one for the death penalty, but after considering and deliberating you are still convinced that life is the appropriate penalty, will you stand by your abiding conviction or will you yield to the pressure of your fellow jurors?"
 In other words, will you remain strong & true to what you believe is justice or will you become a sheep and just follow the herd for the sake of making things easier & less confrontational in the jury room?

They usually say they will stand strong, but skilled attorneys watch their demeanor and body language. 

If your life was on the line, I am asking you, my fellow bloggers: would you want a juror who maintains her resolve and conviction and refuses to switch her vote just to give in to the pressure or just so the whole thing could finally be over? That's the type of juror we call a sheep?

My problem with the media: Better said, my issue with Nancy Grace


She's upset with the jury because they could not agree on a unanimous verdict. What would be better, Nancy? Should the four who were against sentencing her to death, give in to pressure & betray their promise to the lawyers, judge and court, their promise that they would remain strong in their resolve, if not convinced to vote another way?

Yes, I agree this is horrible for Travis Alexander's family. It's sickening that they have to keep going through this, but the jury cannot vote against their conscious because of this.

How can this be remedied? I think it is utterly ridiculous for the prosecutor to select a second jury who, without the benefit of the previous four month's of evidence and witness testimony, will be asked to make a decision the first jury was unable to make. How does this help The Alexander family?

Even if the second jury gives her the death penalty, there is a strong likelihood that the sentence will be overturned on appeal as unconstitutional, kicked back to the trial court and then the family must begin again. I believe the best option is for the state to offer Jodi Arias a deal, plead guilty to life without parole. This should satisfy the Alexander family and eliminate the grief of enduring decades of appeals.


This is a long post & I want to share with you the reason I'm no longer the strong advocate for the death penalty as I once was, but I will have to write a separate post on the topic.  It has much to do with how unfair the process is. It all depends on the twelve men and women selected and that's often a crap shoot. One group of twelve could easily send someone to death while a different one could not. It's the luck (or misfortune of the draw) & to me that makes the penalty decision much too subjective and arbitrary.

If we cannot guarantee across the board standards and criteria for each person convicted of first degree murder (and how could we- when no two people are alike and no two panels of twelve will every think, act, react, respond the same way.)

I say lets put this case to rest and allow the Alexander family some closure and the opportunity to return home and begin to pick up the pieces of their shattered lives and try to move forward.

Don't give Jodi Arias one more trial...one more opportunity for her to hold court, stand up like she is important with her power point.


 She loves playing this role...all eyes are upon her. Let's strip that last ounce of power from her . Why allow her to try and con and sway a second jury? She loves the media attention as she's a natural in front of a crowd.

 Take this away from her. Tell her the show is over...her performance is over...the only role left for her is a jail house art teacher or better yet, an acting coach.

What's your opinion? Was justice served? Did the system fail because the jurors were hopelessly deadlocked? Any of you find the Arizona trial procedure, just a little off? Any of you from Arizona and feel like sharing what you know about the law? I'd love to hear your opinions.

Please continue praying for the Alexander family. As one family friend announced after the verdict, "the family needs your prayers more now than ever."








20 comments:

  1. It does, Alex, it cost an enormous amount more. The victim's family always thinks that a death penalty sentence will bring them closure, but it seldom does. The defendant in a capital murder trial is automatically entitled to so many appeals and the appellate process take decades (unless you live in Tx.) Each time an issue is argued and the court takes it under advisement, while they consider whether or not she is entitled to a new trial or a new sentencing, the family is subjected to the torture of waiting, all over again.

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  2. You're right Claire about the cost. In my opinion if the prosecutor and Jodi Arias would agree to cut a deal instead of bringing in a new jury, whereby she gets life without parole, it's a win/win for the victim's family. If she accepts the offer, she gives up all appellate rights and it's over...finally. If they go through another penalty phase, they jury could deadlock again and then she will get life, by the judge. The difference being that the judge could also make her eligible for parole in 25 years (30 because she already served 5) plus its actually less than that because state prisoners get good & gain time and they usually get a day for a day knocked off for good behavior. I thing the family benefits from a life sentence with no parole and no appeals.

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  3. I know the death penalty takes longer and costs more, so anything that ends the whole process sooner would actually be better for everyone. I do believe in the death penalty but life imprisonment is a pretty lousy way to go, too.


    And if I'm ever selected for that type of jury, I now know what to say to get out of it. Thank you!

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  4. Your choice of sheep photos was inspired. Clever!


    Nancy Grace should be prohibited from covering any on-going legal proceedings. The Casey Anthony case was disastrous, made doubly so by her coverage of trial and then post-trial.


    I believe Jodi Arias should be sentenced to life in prison without possibility of parole, forever for the rest of her mortal life. Nothing will make the Alexander family grieve any less. Arias should also be prohibited from speaking/blogging/writing about this & about her. Travis is forever silenced, and Arias should not have the privilege of communicating with the outside.


    I am a new follower! Love your blog.

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  5. Hi Melissa! Thanks for stopping by my blog. I've been a horrible blogger lately and trying to get back in the swing of things. :)

    To be honest, this kind of stuff aggravates me. There are definitely times when justice is not served, but other times when the law does it's job. I personally can't stand all the drama and BS that happens in between. Although I DO agree that we usually can't say where an answer or verdict is completely right or completely wrong. It's going to be a different opinion for everyone.

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  6. Melissa, I have not followed this trial and know nothing about the case. So I can evaluate your statements in the vacuum of ignorance on this one trial.
    I am can say I agree with EVERYTHING you said. People like Nancy Grace are a blight on society and create sensationalized skewing for many potential jurors out there. Someone may have watched this trial, got whipped into a frenzy by Grace's nonsense, and then receive a jury summons that in their mind allows them a "make up" verdict. (In sports sometimes refs are accused of committing a "make up call" after they realize they blew a previous call.)
    I believe the death penalty to be valid punishment for the types of crimes you mentioned and I would add any killing of a police officer or fireman.
    Arizona seems to have some interesting views on a lot of things (what, no Daylight Savings Time??). I guess it will be interesting if the state see fit to torture the Alexander family a while longer.,

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  7. Fascinating post and informative! The death penalty is not an easy decision and should be considered carefully.

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  8. Hi Melissa. It was a well argued discussion as one would expect of a lawyer. I was pleased there was such a list of mitigating circumstances. I could never agree with the death penalty, one reason being how many innocent people have been 'murdered' by the state.

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  9. Hey, the blog has changed! Looks great, and this was an epic post. Can't say I followed the Jodi trial, but I'm completely caught up now. Excellent post on the system and lost to think about. :)

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  10. Instead of commenting on the death penalty, I'll comment on jury selection. I remember reading that a jury of one's peers meant that (early in our republic) a farmer would be judged by farmers, a carpenter would be judged by fellow tradesmen, etc. Do you know if this was the original intent?

    I've been on jury duty eight times, I think. I would not want to sit next to some of my fellow jurors on a bus, much less let them ever decide my fate. Believe me, selecting six or twelve people by random yields really random results. I want better jury selection, but there is no easy answer to this.

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  11. That was never the original intent, at least not in the U.S. That's not the way our Supreme Court interpreted the language. I know exactly what you mean and I couldn't agree more.

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  12. Thanks for the comment. I try really hard not to get long winded and carried away when I write my post. I know that readers (including me) hate to see super-long post. I couldn't help it with this one. I was so angry about what everyone (mostly the media) was saying. There is not a doubt in my mind that she was guilty, hell she admitted doing it, but claimed self defense. I just have a problem with people who assume that every guilty person deserves the death penalty. If that were true then we would have no need for a penalty phase. And it's just wrong to bad mouth the jurors for not giving her the death penalty. It's one things to shout at the television that if we were on the the jury we would have voted for death, but it is a completely different thing to actually be the one to condemn a young woman to death. The jurors are human and some of them just could not bring themselves to do it. We have to accept and respect the jury's verdict.

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  13. That's a very good argument against the death penalty. The finality of it is real. You can't go back, at a later date, if the court realizes that a mistake was made. Once we kill (execute someone) it's over.

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  14. I agree. I've never been asked to consider it and I doubt I ever will because of my profession, but I know that it must be very different when you are actually back there deliberating than when you are just shooting the bull with your spouse or friend over coffee about whether you believe in it, in theory. It's got to be the hardest decision those men and women will ever make in their lives.

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  15. The killing of a law enforcement officer is one of the aggravating circumstances that allows the state to seek the death penalty. I agree that certain cases warrant the death penalty. My problem is with people like Nancy Grace who seem to believe that every case calls for it.

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  16. Well said. You sound like a politician, lol.

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  17. Thank you for following, glad to have you here. I agree with you. To make Travis Anderson's family go through the ordeal of another penalty phase will only prolong their suffering. I can't believe Jodi Arias was allowed to give all those jail house interviews, Az is very different.

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  18. That's the best thing a person could do-get out of it. I can't imagine living with my thoughts if I voted for it, but I can't imagine not voting for it if the case warranted it. It is a no win situation for everyone.

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  19. This was so interesting to read from your perspective!! You really made it understandable for even people like me who don't know much about how the whole court process works. Thanks for sharing!

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  20. Now...check out crime scene investigation web site.....MARTINEZ and Flores BOTH fail the basic procedures.....SELF PRESERVATION

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