commentary by Patrick H. Moore
Numerous media services are reporting that Jodi Arias’ key Mitigation Specialist, Maria De La Rosa, has been barred from visiting her client as Ms. Arias’ defense team prepares for the much-anticipated second penalty phase of her trial. Ms. De La Rosa is accused of smuggling (or attempting to smuggle) one of Jodi’s drawings, a pinwheel drawn with colored pencils, out of the Phoenix County Jail jail with the apparent intention of turning it over to her attorneys to be used as evidence at the upcoming penalty phase deliberations. The jail officials are claiming the watercolor is contraband. As folks who have followed this case from the beginning are aware, some of Ms. Arias’ artwork was introduced as evidence at the first trial.
De La Rosa has allegedly done what courageous (AKA foolish) lawyers, mitigation specialists and private investigators have done on occasion from time immemorial. Here’s how it works: You’re visiting your client in a legal visitation room and your client informs you that he/she has brought you a document that you both agree is key to a successful defense. Naturally, you want to covertly tuck the document into your folder of legal papers in order to transport it posthaste back to your office.
Here’s how it’s supposed to happen: Your client shows you the document. You realize you need it for whatever purpose. What you should do is direct your client to get it to you in one of two approved ways: A. Client mails you the doc as legal mail; B. Client calls a guard and asks him/her to take to the front desk and mark it with your name so that you can pick it up on your way out. That way it can be checked for contraband. (Note: This approach only works in user-friendly facilities that are set up to grease the wheel of justice as opposed to erecting barriers.)
What typically happens if you get caught smuggling docs? I’m not sure. I’ve never been caught. It would depend somewhat on what facility you are dealing with and how stringent they decide to be. In some cases, your visiting privileges might be suspended for a week or two and then they would let you come back with a warning.Yeah! Give a (wo)man a second chance!
The Maricopa County prison system, however, is apparently not in favor of giving Ms. De La Rosa any type of break.
Maricopa County Sheriff’s Office Chief Deputy Jack MacIntyre rationalized their unbending approach:
“She basically was acting as a conduit. She can’t circumvent the rules. She’s not a rookie at this business. She is very experienced and she knows the rules and regulations. You have to make sure you re-impress upon people that they aren’t visiting someone in grade school – this is serious business. She knows what the contraband rules are for the jails.
Mr. Macintyre took the words right out of my mouth. “She’s not a rookie…” Exactly. She’s a highly respected member of the Arizona legal defense community. She should be warned, perhaps suspended briefly. If this were LA and if one of our finest got popped for smuggling docs out of a Federal facility, the officers eyes would light up. They might roast him. They might threaten him with permanent ex-communication. But they would let him back in. Almost certainly.
This does not seem to be the case with the Maricopa County folk and Ms. De La Rosa.
De La Rosa’s attorney, Dan Raynak, strongly disagrees with the decision. “I believe that it’s a stupid publicity stunt by MCSO that is consistent with their harassment of inmates at the jail. She can’t have any private calls from jail and can’t send or receive any letters from her clients. That undermines the attorney-client privilege.”
The MCSO has rarely never been publicity shy and it’s not really surprising that they have over-reacted to this situation.
This decision could cause serious problems for Ms. Arias’ defense team. A Death Penalty Mitigation Specialist’s job is to collect evidence and real life stories from the defendant’s life which will then be presented to the jurors in the most persuasive manner possible as part of the attempt to persuade them to not impose the death penalty.
As you might suspect, high quality Death Penalty Mitigation Specialists do not grow on trees. Based on my experience doing Federal mitigation work, I know beyond the shadow of a doubt that any defense effort would be severely hamstrung without the trusty (and trusted) mitigation expert.
Therefore, the MCSO’s decision strikes me as dirty pool. Jodi Arias needs a level playing field if she is to have any hope of escaping the death penalty at her second penalty phase trial.
Update: It is reported that the MCSO has already realized it over-reached by banning Ms. De La Rosa for such a minor infraction. and have agreed to reinstate her. A judge still has to sign off on the order.