Jodi Arias to Represent Herself in Penalty Phase Retrial

The latest news that Jodi Arias will act as her own attorney in her upcoming penalty phase retrial shouldn't come as any surprise to those of us who have been following this ongoing saga for the last 6 years - yet I was indeed surprised!  What is this woman thinking?  She sought to represent herself early on, long before her case went to trial but she seemed to realize then that she was way out of her league in the legal ring.  Can you imagine Jodi Arias going toe to toe with Juan Martinez in a courtroom showdown? I can't believe this isn't going to be televised, as this would surely make for must-see TV.

It's not exactly breaking news that Jodi Arias did not see eye to eye with at least one of her attorneys (Kirk Nurmi) but she seemed to have a better rapport with Jennifer Willmott.  Both Nurmi and Willmott have unsuccessfully petitioned the courts to be removed as her attorneys, perhaps this is their solution?  Will this give her more ammunition on appeals?  As we all know, Arias set up that "Jodi Arias Appellate Trust" last year, so what happens to the money she managed to get from Joe Public?  Will she represent herself on appeals and keep the funds?  This just went from a three ring circus to a all out sideshow.  Here is the minute entry from the Maricopa County Superior Court's website:

08/04/2014

2:54 p.m.
State's Attorney: Juan Martinez
Defendant's Attorney: Kirk Nurmi & Jennifer Willmott, Advisory Counsel
Defendant: Present

This is the time set for Defendant’s pro per Motion to Represent Herself Pro Per.

The Court proceeds with waiver of right to counsel hearing.

The Court advises the Defendant of the responsibilities of counsel such as asserting legal defenses, interviewing witnesses, doing investigation, doing legal research, filing and arguing motions, examining and cross examining witnesses, giving opening statement and final argument to the jury.

The Court further advises the Defendant that he/she will be held to the same standard as an attorney regarding the presentation of the case. This standard includes knowledge of courtroom procedure, applicable state law, Arizona Rules of Evidence, and Arizona Rules of Criminal Procedure.

The Court advises the Defendant that she will not be granted a continuance of the trial setting based on her request for self-representation.
In asking the Defendant if she still wishes to give up her right to counsel and represent herself, the Defendant responded affirmatively.

The Court advises Defendant of her right to change her mind and obtain an attorney anytime during the proceedings, however the retained or appointed attorney will not be allowed to repeat any part of the case already held or waived without their presence.


The Defendant acknowledges understanding her waiver of right to counsel.

The Court finds, based upon the totality of the circumstances, that Defendant knowingly, intelligently, and voluntarily desires to waive the right to representation by an attorney and to represent herself.

IT IS ORDERED pursuant to Rule 6.1(c), Arizona Rules of Criminal Procedure, that Defendant’s waiver of right to counsel is accepted.

IT IS FURTHER ORDERED assigning Kirk Nurmi and Jennifer Willmott as advisory counsel to assist defendant in preparation and trial of the case, consistent with the guidelines announced in McKaskle v. Wiggins, 465 U.S. 168, 178-179, 184 (1984) and State v. DeLuna 110 Ariz. 497, 520 P.2d 1121 (1974)
FILED: Waiver of Counsel with attached Letter

IT IS FURTHER ORDERED affirming Capital Case Management Conference on 
8/13/14 at 8:30 a.m. in this division.


3:08 p.m. Matter concludes

What do you make of this move?  There are those in the legal world who say she doesn't have much to lose at this point.  Arias attempted to bond with the jurors by testifying for 18 days during the case in chief - does the fact that jurors didn't hand down a death sentence evidence that it worked?  Many people were stunned the jury was conflicted over the punishment for such a brutal and vicious attack, but as statistics seem to support juries have a notoriously difficult time sentencing women to death.  

In the penalty phase retrial, Jodi Arias will be dealing with a brand new jury. These jurors won't see Arias as the first jury may have after seeing her for 5 months during the trial and weeks on the stand.  Is this her solution to that problem? Does she hope that putting herself front and center will forge a bond, sympathy or empathy from just one juror? I can't imagine she feels her knowledge of the legal system makes her a better qualified attorney than Kirk Nurmi or Jennifer Willmott and taking on Juan Martinez in this way will almost guarantee some fireworks in that courtroom!  Oh if I had the time to drive to Phoenix I'd love to be in that courtroom to watch this unfold.

In an interview with Foxnews.com, San Francisco defense attorney Daniel Horowitz said "it's actually probably a good idea to represent herself.  She looks like a vicious psychopath with a ridiculous defense".  Horowitz also noted that the jury "may find her pathetic".  We all know that Jodi Arias has seemingly relished being in the spotlight from day one of her arrest.  Who smiles in their mugshot?  Who would, after being charged with the first degree murder of someone who supposedly meant so much to you could smile at all under these circumstances? A narcissist could.  And Arias' answer to that very question about the mugshot doesn't ring at all true - I believe she told a reporter that she thought about "what Travis would do" under similar circumstances.  Wow, really?  I doubt Travis Alexander or any other normal person would be smiling at such a dire and somber moment.

I am so very curious about how this retrial will go on, and how they will frame the first trial to the new jury.  We know the verdict is not in question, nor is the circumstance that makes the crime eligible for the death penalty.  Still, they will have to reference the crime, the trial and I'm wondering how this will be done given the length of that first trial.  Will only witnesses that go to mitigation or aggravating factors be heard in the penalty phase?  Given that it's been more than a year since the mistrial was declared this seems like it will be a daunting task to bring the jury up to speed and get to the heart of the matter - punishment for Jodi Arias. Can the defendant make statements that challenge the prior guilty verdict? What is and is not allowed to be brought in during this phase?

I found an interesting publication online about sentencing retrials - the fact is that when David McCord talked to dozens and dozens of prominent attorneys across the country, he found few that had experience in this area. It's not the norm.  The article is called "Switching Juries Midstream - The Perplexities of Penalty-Phase Only Retrials" and it talks about problems and issues inherent in penalty phase retrials.  Here are a few interesting findings from that piece: ( http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/McCord-PDF-11-29-04.pdf)  Sorry about the format here, it's a lengthy read and I'm cutting and pasting parts I think are interesting and relevant to this retrial.  There are quotes from various prosecutors and defense attorneys who participated in the discussion:

Moderator: Prosecutors, how do you try to get the jury up to speed on the guilt/innocence facts? Obviously, you want to do more than simply present the prior verdict form showing the conviction. But do you need to re-present all the guilt/innocence phase evidence, to the extent it is still available? 

Prosecutor Laeser: In Florida when a case is sent back for resentencing, both parties start from square one, except for the fact of conviction. Indeed, the prosecution can even prove additional aggravating circumstance(s) beyond what it presented at the original trial. Under Florida law, we do not labor under the hearsay rule at the penalty phase, so in a penalty-phase-only retrial, I can put on summary witnesses. I can use a lead investigator to summarize parts or all of the investigation—this is important because it limits the cross-examination the defense 
can do. So I could put up a very bare bones case, but I do not do that. 
Strategically, I put on as much evidence as possible. To convince a jury that a death sentence is appropriate is a difficult task. I have to put on as many important witnesses as possible. I have to pull emotional heartstrings. This takes a huge amount of pretrial preparation. Usually it is a very old case; witnesses’ memories are not all that sharp. You do not like to refresh their recollection in front of a jury. 
So it takes a lot of witness preparation. 

I was also wondering if Arias will be able to challenge her guilt finding on first degree murder, will she be able to argue self defense or battered woman's syndrome again.  I found this:

To the extent a defendant at a resentencing attempts to present evidence to undermine a guilty verdict, or an aggravating circumstance inherent in a guilty verdict, the governing law from a constitutional standpoint is that relating to “residual doubt,” a.k.a. “lingering doubt” or, more pejoratively, “whimsical doubt,”43 “Residual doubt” is a term to describe the phenomenon that a juror who has found the defendant guilty beyond a doubt still may be unwilling to sentence the defendant to death if there is the slightest doubt in the juror’s mind about the defendant’s guilt.44 While the defendant is entitled to present penalty phase evidence concerning “the circumstances of the offense,”45 and doubt about the defendant’s guilt is arguably relevant to the circumstances of the offense, the 
Supreme Court long ago rejected this argument. In Franklin v. Lynaugh46 the Court held that “residual doubt” does not relate to the “circumstances of the offense,” and thus a defendant has no constitutional right to a jury instruction that the sentencer can consider residual doubt in determining the sentence.

 Most states have followed the Court’s lead on this issue, and refuse to permit the defendant to introduce evidence at the penalty phase to suggest a doubt about the defendant’s guilt, or to require an instruction that the jury may consider residual doubt in determining the sentence, although somewhat paradoxically, a fair number of states do nonetheless permit defense counsel to argue residual doubt in summation at the penalty phase, even though the defense is not entitled to present 
any additional evidence to show lack of guilt, and is not entitled to a jury 
instruction. 

Prosecutor Hawkins: In the case I just finished, at the original trial the 
prosecution presented over a hundred witnesses. At our new penalty-phase, we presented only forty witnesses. The prosecution still needs to put on a full case, but we are able to dispense with a good deal of foundational evidence. For example, we put in the beginning and end of the chain of custody for physical evidence, like a cartridge case, but not the middle. Actually, that feels weird for a trial attorney who is accustomed to laying a complete foundation.

Prosecutor Morton: With new juries, we are not limited to just aggravating and mitigating circumstances. We put on as much guilt phase evidence as needed to put the crime in its context. Juries want to be assured that the person they are going to sentence did in fact commit the crime. Live witnesses are my preference. Otherwise we have to use a detective to summarize the evidence, or transcripts of the original trial will be read back. But that just does not have the same emotional 
impact (often including tears) that you get from live witnesses. 

The concept of residual doubt is normally associated with an original trial 
where the same jury determines both guilt and sentence. But for the sort of cases that are the subject of this article—resentencings years later before a new jury that is instructed that the guilt finding is binding—perhaps we should coin a new term, like “belated residual doubt.” Even this may be a misnomer, because how can there be “residual” doubt when the new jury does not have any “residue” in its memory? In this matter, as in so many others, capital defenders feel put upon. Even though residual doubt has no constitutional status even at an original trial, 
there are still ways a good lawyer may sub silencio seek to invoke its benefits. But if there is no residue of doubt to draw upon, and no constitutional right to try to create a residue of doubt, even good defense lawyers may founder. But there is a practical consideration that cuts at least somewhat the other way: prosecutors generally have an incentive to present guilt/innocence phase evidence at the resentencing to familiarize the jurors with the case—and to energize their outrage so as to induce a death verdict. And once the prosecutor presents evidence relating 
to guilt, the defense may be able to undermine it by deft lawyering. 
Now, getting back to our panel discussion, I am sure you all agree that the issues of law of the case and residual doubt loom large with respect to resentencings. From a practical standpoint, death penalty litigators know residual doubt is a real and important phenomenon.49 The peculiar thing about the new jury in a penalty-phase-only retrial is that they have no basis for having a residual doubt, since they have not heard the guilt/innocence phase evidence. I am guessing, though, that prosecutors still have to worry about the defense attempting to inject doubt about the conviction, and any inherent aggravating circumstances. 
Am I right about that? 

Prosecutor Benito: The residual doubt phenomenon is very real. If one jury hears both phases of a capital trial the jury wants to make sure that justice is handed out and a guilty verdict is handed down. If it was a close case of guilt or innocence, the jury is not going to then recommend the death penalty. They may have lingering doubts about guilt or innocence and they can feel like they have served justice by handing down a guilty verdict but helped the defense by not recommending a death sentence. But that dynamic just does not exist for the new jury. And if the defense tries to inject it, and the prosecutor objects, the judge may reel the defense in and admonish the jury that they are not dealing with guilt or 
innocence regarding this phase. 

Prosecutor Laeser: Even though the jurors are told they have to assume guilt, some jurors are very hesitant to accept someone else’s finding. Some feel they have to be absolutely certain of guilt before assessing a death sentence. As a practical matter, we usually do present enough evidence to persuade them, but we do not take anything for granted. 

Defense Attorney Gelman: You cannot challenge a finding of guilt, although you can subtly try to inject some doubt. But it is usually better not to because the prosecutor can really slam you on that. Plus, I do not think it is likely to be effective to try to get this jury to say the first jury made a mistake—that is just not going to happen. So you proceed with the assumption that they have been convicted and try to show more mitigating circumstances than aggravating. 

Defense Attorney Silver: I think trying the penalty phase to a new jury may give the defense a slight advantage in contesting the aggravators, over the original trial. It would be very hard to attack the aggravators right after you had just tried and lost the guilt/innocence phase of a trial that included the aggravating evidence. If you started trying to water down what they heard, I think the jury will resent you. But before a new jury, it is possible for the defense to present evidence concerning 
why the crime is not as bad as it seems. You are telling the jury, “I’m not asking you to say he’s not guilty, just that there is something about the crime that is not that horrible.” 

Defense Attorney Kerns: 
For one of my clients I was able to present some unusual mitigation: he had received some notoriety as a writer while in on Death Row. We brought in writers and editors to testify he had social value as a writer. In fact, in that case the victim’s closest relative actually testified for the defense in the retrial. My client had killed this person’s great aunt. The niece originally corresponded with my client and then met him because she was trying to understand how someone could do what he had done to a wonderful person like her aunt. She found him to be a human being, and became interested in his writing—she was also a writer. A relationship developed between the two. The niece testified how he helped and 
assisted her. I have seen victims and defendants reconcile on a number of cases. But the jury apparently did not receive any of that well—they returned a death sentence.

Moderator: Another aspect of the lapse of years is that the defendant will have built up quite a record of behavior in prison—either good or bad. Does the defense often offer evidence of good prison behavior,56 and do you think it is effective? 

Prosecutor Williams: That is pretty standard defense strategy—get the prison records—virtually all inmates have had some infractions after that length of time, but usually they are pretty minor. But then, there is not much opportunity for Death Row inmates to get into trouble; they are kept in individual cells and only let out one hour a day. 

Prosecutor Laeser: I agree. When the defense puts on testimony that he has been a model prisoner, that is pretty easy to counter: if he is locked in a small room twenty-three hours a day, there is not much of an opportunity to be a bad prisoner.   

You get the idea?  I'm sure we can expect Jodi Arias to talk up her hair donations, Survivor T-Shirt sales/donations and any other things she considers to be good acts to this new jury.  As for her conduct while in the Estrella jail? What is her conduct record like there?  Seems to me I read she's been in at least one altercation while behind bars. We can't forget that Arias was caught red-handed trying to smuggle out contraband from the jail, once in the form of encoded messages in a magazine many believe was meant for Matt McCarty and the "artwork" found with Maria de la Rosa's legal paperwork that got the death penalty specialist banned from the Estrella jail for some time!

As the trial date approaches, I'm sure we will start hearing more news about what to expect from this trial.  I'm guessing this will be another long and drawn out court battle, with Jodi Arias representing herself anything goes.  Will she start suffering from her headaches again once the trial begins? Will Arias try to emulate Jennifer Willmott's style in the courtroom? Will the sheriff's office be sure Jodi Arias has a nice bag lunch every day so she isn't complaining of hunger this time around?  We will soon see.  

(It's hard to believe it's been more than 6 years since Travis Alexander was murdered in his home.  He would have been 36 years old, he may have been married with kids by now.  I hope the new jury doesn't forget that Travis was the victim, not Jodi.)