commentary by Patrick H. Moore
Maricopa County Superior Court Judge Sherry Stephens ruled on Monday that Jodi Arias can represent herself in the upcoming penalty phase of her murder trial. The trial is not a “bench trial” but is rather a trial by jury in which the jurors will decide whether Ms. Arias should be put to death for killing her ex-boyfriend, Travis Alexander.
I have no idea how the percentages break down but it’s very clear that a great many Americans feel very strongly about this case and the ultimate sentence. The “Justice for Travis” contingent, almost to a person, wants Ms. Arias to receive the death penalty, which in Arizona is administered by lethal injection for anyone sentenced after November 25, 1992. (To die in this manner in Arizona is certainly a scary proposition considering that Joseph Wood’s recent execution required 15 injections to kill him and was stretched out over an agonizing two hours. Even conservative Senator John McCain, who supports the death penalty, was horrified by Wood’s fate and suggested that what he experienced was tantamount to torture. It is noted that as a purported victim of torture while a prisoner of war in Vietnam, Sen. McCain’s remarks should be given all due consideration.)
Another large group of individuals, myself among them, believe that Ms. Arias should have been convicted of second degree murder or possibly voluntary manslaughter, and believe that under no circumstances should she receive the death penalty. There is also a relatively small group of folks who believe that the defendant truly was acting in self-defense and therefore should have been acquitted of the charges.
Arias, 34, who was convicted of first-degree murder last year for the 2008 death of Travis Alexander, has already been through one sentencing phase in which the jurors were unable to reach a decision on sentencing. What this means under Arizona law is that the murder conviction stands, and prosecutors have the option of requesting a second penalty phase with a new jury in an effort to secure the death penalty, which is precisely what they have done.
If the new jury is unable to reach a unanimous decision, the death penalty will be removed from consideration. The judge would then have the option of sentencing Arias to either spend her life behind bars with no possibility of parole or, alternatively, to sentence her to a life term with the possibility of being released after 25 years. (I suspect that if the jury “hangs”, thus taking the DP off the table, Judge Stephens will most likely sentence Ms. Arias to LWOP.)
It’s well-known that Arias has long clashed with her defense team and has lobbied for their removal previously. As is her legal right, she has now asked Judge Stephens to let her serve as her own defense counsel during the second penalty phase which is set for Sept. 8.
In granting the motion, Judge Stephens stated: “I do not believe it is in your best interest … I strongly urge you to reconsider.” Stephens further stated that there would be no further delays, which means that Ms. Arias, despite having no legal experience and no college degreem or even a standard high school diploma (she did get her GED in jail), has a mere four weeks to get ready for her momentous task of arguing why she should not receive the death penalty.
Her defense team will remain on as advisory council, which presumably means she can go to them with any inquiries she might have. They declined to comment on the latest developments, as did the prosecutors.
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Certain legal professionals have gone on record as saying the move might not be such a bad idea given the gruesome nature of the crime. At her trial, Arias admitted killing Alexander at his suburban Phoenix home, but claimed it was self-defense. There is no need to rehash the details of the killing, but everyone is painfully aware that it was not a pretty sight. The prosecutors argued that it was premeditated murder carried out in a jealous rage because the victim Alexander wanted to end their affair.
A San Francisco talk-show defense attorney named Daniel Horowitz weighed in with the following bizarre statement: “It’s actually probably a good idea to represent herself. She looks like a vicious psychopath with a ridiculous defense.”
First of all, I’m not sure what this means: “She looks like a vicious psychopath with a ridiculous defense.” Taken out of context, and I’m not sure Horowitz provides a context, it appears to be a meaningless and inflammatory statement. Is he suggesting she is a vicious psychopath, or that she is perceived as one by some observers? So I’m immediately skeptical about anything Horowitz may have to say on this issue.
But just in case you’re wondering why Horowitz believes this extremely negative perception in the eyes of the jurors could help her, Horowitz elaborated by saying that the jury “may find her pathetic” and that “if she can get just one juror to bond with her on some level, even if they hate her, they’re getting to know her, and it’s harder to kill someone you know.”
So what Horowitz seems to be saying is that no matter how awful Ms. Arias may seem to the jury, if she succeeds in personalizing her awfulness, it may actually work to her benefit. To me, presenting the please let me live because I’m pathetic defense seems like one helluva risk for Ms. Arias to take.
At her trial, Ms. Arias described her life story in intimate detail over 18 days on the witness stand, describing an abusive childhood, cheating boyfriends, dead-end jobs, her sexual relationship with Alexander and her contention that he had grown physically violent.
“They thought she was a liar. She was narcissistic. She was arrogant, and it made it easy to convict her,” Horowitz said. “But that’s a lot different than killing somebody.”
What Horowitz is saying is that Ms. Arias did not present well while on the witness stand, and I think this is probably correct, or at least this is the way she was perceived by the jurors and a great many people who followed the trial. This “perception” is probably the reason so many “true crime fans”, many of whom are no doubt generally reasonable people, and some of whom I’m in touch with on Facebook or by email, seem to despise the very ground she walks on. I also suspect that the tendency to put Travis Alexander up on a pedestal may be, in part, a reaction to the negative perception of Ms. Arias on the part of the trial watchers, a perception that was fostered in part by the frantic media witch hunt that already had her buried before she even reached the witness stand, and was further pounded into the mind of America by prosecutor Juan Martinez.
Phoenix defense lawyer Mel McDonald is a former Maricopa County judge and federal prosecutor. In his analysis, which is certainly more measured than Horowitz’s, he agreed that Arias doesn’t have much to lose.
“I think generally that anybody that represents themselves has a fool for a client, but it also gives her a way, if she’s out there making a fool of herself, to maybe invoke some sympathy from a juror,” McDonald said.
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One sometimes effective way to save one’s life in the death penalty phase of a proceeding is for the defendant to simply come clean, to stop making excuses for whatever they’ve done, to stop blaming others, to simply own up to the fact that they’ve screwed up royally; i.e., to explain to the jury that finally, at long last, they GET IT, and they’re sorry for what they’ve done. I’m acquainted with a recent death penalty case in another state where the death penalty mitigator spent the entire weekend with the defendant prior to him taking the stand. Somehow, the mitigator convinced the defendant to step up and take full responsibility which is exactly what the defendant did, and IT SAVED HIS LIFE. In fact, I think it was pretty much of a slam dunk on the jury’s part after his testimony; they were touched by his honesty and genuine remorse and wanted to give him a second chance (if you would call life in prison a second chance).
So I must say that in response to these two luminaries, Horowitz and McDonald, that I’m not at all convinced that Ms. Arias making a fool out of herself while representing herself is the best strategy. Of course, they’re probably assuming that given her alleged diminished mental state, that’s all she’s capable of and would not be capable of expressing true and genuine remorse while asking for a second chance.
My bottom line is that while Ms. Arias representing herself may make for good theater, I would be much more comfortable if she had expert legal representation and a compassionate mitigation team working day and night to convince her to apologize from the bottom of her heart for what she’s done. I believe that at some point, she must have LOVED Travis Alexander deeply. Otherwise, she wouldn’t have turned so passionately against him. Deep in her heart, she must feel awful about having killed him, the man who, for a period of time, was her knight in shining armor and her hope for a better life.
But most of all, I hope that whether or not she ends up representing herself, I hope the jury finds mercy in their hearts and votes to let her live. I long for a gentler, kinder America that is not convulsed with hatred, that does not take pleasure in watching a broken soul suffer further, and that gives up the ancient Old Testament monstrosity known as “an eye for an eye and a tooth for a tooth.” As a people and as a sovereign nation, we can do better than that, and a life sentence for Jodi Arias, rather than the death penalty, would be a step, however small, along that road.