Jodi Arias Legal Question and Answer Thread *no discussion*

[Nezumi]

can you help me understand this? i don't get the distinction. you don't have a right to a parole hearing after 25 years, but you can't get one until you've served 25 years? i don't get it.

I understood this to mean that you have to serve 25 years before you can ask for a parole hearing but it's discretionary - they don't have to give you one.

 

[MidwestWoman]

By the way, if this makes anyone feel better, the more I've thought about it the more I think JM did cause reversible error in the last penalty phase by saying that if JA got 25-to-life she would have a vested right to a parole hearing in 25 years whether or not there was a procedure in place. At first, I thought JM was correct, but then (as I discussed a couple of pages back) I checked the statute and determined that the 25-to-life sentence did NOT provide for a right to a parole hearing after 25 years. It just provided that the defendant would have NO right to such a hearing, even if some procedure were in place, until at least 25 years had passed.

So if the jury had come back with a death sentence, IMO Jodi would have had a great appeal on that issue, and we would have been redoing this phase anyway, except about 2 years down the road.

Is there anyway to prevent/warn JM NOT to say that again in the next penalty phase? Very concerned. lease: Thank you.

 

[crime cases addict]

Yes, if a juror reports that another juror is saying that they cannot vote for death no matter what, then that juror could be removed and replaced with an alternate, at which point deliberations would have to start over. Actually, were the alternates even present during the mitigation phase? If not, the whole mitigation phase would have to start over.

Sorry I misunderstood.

AZ Attorney...Why is not considered double jeporady for a new jury for the penalty phase????? They could do this for guilt phase would have to have a whole new trial

 

[Hope4More]

AZLawyer... could you please provide a citation for the statute on life/parole you found that you thought might support reversible error? Also, another poster in another thread said that Beth Karas discussed this the day it happened in court, and that after checking her sources she thought it was not reversible error because of a 2008 change in statutes?

(I'm not an atty but DH is, and can help me translate). Thanks.
.

 

[AZlawyer]

can you help me understand this? i don't get the distinction. you don't have a right to a parole hearing after 25 years, but you can't get one until you've served 25 years? i don't get it.

Here's the thing I didn't know last week--AZ has completely ABOLISHED parole. Completely. So the statute says you can't be released for any reason sooner than 25 years. It does not say you have any right to be considered for release after that--just that, even assuming there is some parole procedure available, you're NOT eligible for it until 25 years have passed.

AZlawyer, thank you so much for your contributions to my understanding about the law and this case in particular.
My question is about evidence that will be admitted in the retrial of the mitigation phase. Specifically, JSS ruled on the admissibility of many, many pieces of evidence. Are those judgements directed only to what the JURY willl see/hear, or if the judge is to decide on life or LWOP (hung jury on retrial) can she consider evidence that she knows about but ruled that the jury was not to see/hear?
Thanks for being awesome.:blushing:

She can only consider admissible evidence. If evidence is inadmissible, it is inadmissible whether the trier of fact is a judge or a jury.

I must have read what you wrote 3 times. I see the "little" difference, but in my mind, they both sound basically like the same thing.

To the AZ Court of Appeals, I do not believe they will sound like the same thing.

Okay. So as it stands, 25-to-life is the minimum sentence for LWP, is that correct? And she doesn't automatically get a parole hearing after 25 years? If that's the case, would her lawyers have to petition to get a parole hearing at 25 years? (Ha! Imaging KN and JW working on this 25 years from now!) And that could be denied? Just trying to understand, because it seems like it's not so much life-with-parole as it is life-with-the-possibility-of-a-parole-hearing-after-25-years.

TIA!

No, Arizona has abolished parole completely. So if you get life with no possibility for release for at least 25 years, in reality, unless the law changes, there is no possibility for release at all, ever. So I think it would be proper for JM to say "the law could change, and parole could be reinstated," but not to say that she would have the right to a parole hearing after 25 years.

Thanks so much for this explanation. I got super-confused between the original complicated legalese and mix-up in the original jury instructions, and the way it sort of sounded to me in JM's closing argument that Jodi would for sure be eligible for parole in 25 years if she didn't get the DP. I hope the instructions and arguments are much clearer to all juries in all cases in the future.

JM was saying she might get LWOP, and she might get 25-to-life, but I think where he was wrong is that it sounded like he was saying that a sentence of 25-to-life guaranteed the right to a parole hearing in 25 years.

During the prosecutor's closing, Willmott objected when he started to say something about the juror questionnaire that they had filled out in December, 2012.

Then there was a sidebar.

After the sidebar, Martinez continued, and reminded the jurors that the questionnaire informed them that a person sentenced to life in Arizona is eligible to be released after 25 years.

What exactly is the error that Martinez made? Whatever it was, it only happened after the judge presumably overruled an objection and she knew what he was going to say. Did he mischaracterize what was written on the questionnaire, or are you saying he quoted the questionnaire correctly but it was an improper argument to make?

I have no idea about the questionnaire, but yes, I think the judge approved his argument that a person who is sentenced to 25-to-life has the right to a parole hearing after 25 years. I thought he was right at the time, but after reviewing the statute I think he was wrong. Parole has been abolished in AZ, and it is not revived by that statute.

I understood this to mean that you have to serve 25 years before you can ask for a parole hearing but it's discretionary - they don't have to give you one.

No, as it currently stands, parole in AZ has been abolished for crimes committed after 1994. You can't ask for a hearing.

Is there anyway to prevent/warn JM NOT to say that again in the next penalty phase? Very concerned. lease: Thank you.

I have sent a message through what I hope are the proper channels.

AZ Attorney...Why is not considered double jeporady for a new jury for the penalty phase????? They could do this for guilt phase would have to have a whole new trial

It is not double jeopardy for the same reason it is not double jeopardy at the guilt phase to have a new trial after a hung jury.

AZLawyer... could you please provide a citation for the statute on life/parole you found that you thought might support reversible error? Also, another poster in another thread said that Beth Karas discussed this the day it happened in court, and that after checking her sources she thought it was not reversible error because of a 2008 change in statutes?

(I'm not an atty but DH is, and can help me translate). Thanks.
.

A.R.S. 13-751(A)(3). "If the defendant is sentenced to life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years..." It doesn't say anything about a right to be considered for parole after 25 years, just that you CAN'T be considered for parole during the first 25 years.

 

[MeeBee]

Didn't Willmott make the argument that there was no procedure for parole and didn't Juan indeed make the argument that there isn't now but there may be in 25 years? Would this being addressed in court negate the reversible error?

 

[Angelina Frost]

AZ, sorry to do this to you again, but I don't have the capacity to understand law.

All that matters is that JA doesn't get out of jail, ever. Do we have a guarantee that she will spend natural life there, or is there a chance of parole at some point should JSS sentence her to LWP?

TIA. Sorry for being a brick brain. :blushing:

 

[Shadowboy]

Can’t thank you enough for fielding our “layman” questions.

That said: I asked, during mitigation, why the DT didn’t present – at the outset -- the BPD diagnosis as a mitigating factor … You said it was a good MF, but the DT likely didn’t want to tip off JM. {At which time, my pea brain said, “Huh?”}

Then, the DT brought it in.

I think I get it: The DT waited until late in the Mitigation phase to introduce the ‘personality disorder(s)’ (as established in the guilt phase) to circumvent rebuttal testimony/witnesses being called by the prosecution?
{Sorry, that’s a question}

{Yes/No}

Will the prosecution now be able to introduce rebuttal testimony re: BPD (Wacked does not equal murder; knowing right from wrong) during the next penalty phase?

{Yes/No}

In this penalty phase re-trial, what mitigating factors can – in your opinion – be held valid? (Sorry, not a yes/no.)


I’m in no hurry. Answer when you can.

 

[AZlawyer]

Didn't Willmott make the argument that there was no procedure for parole and didn't Juan indeed make the argument that there isn't now but there may be in 25 years? Would this being addressed in court negate the reversible error?

Yes, but IIRC Juan also said (incorrectly IMO) that if she were sentenced to 25-to-life she would, in 25 years, have the right to a parole hearing. Which she would not.

AZ, sorry to do this to you again, but I don't have the capacity to understand law.

All that matters is that JA doesn't get out of jail, ever. Do we have a guarantee that she will spend natural life there, or is there a chance of parole at some point should JSS sentence her to LWP?

TIA. Sorry for being a brick brain. :blushing:

If she is sentenced to 25-to-life, then there is a possibility that Arizona could reinstate parole procedures sometime in the future and she could be granted parole.

Can’t thank you enough for fielding our “layman” questions.

That said: I asked, during mitigation, why the DT didn’t present – at the outset -- the BPD diagnosis as a mitigating factor … You said it was a good MF, but the DT likely didn’t want to tip off JM. {At which time, my pea brain said, “Huh?”}

Then, the DT brought it in.

I think I get it: The DT waited until late in the Mitigation phase to introduce the ‘personality disorder(s)’ (as established in the guilt phase) to circumvent rebuttal testimony/witnesses being called by the prosecution?
{Sorry, that’s a question}

{Yes/No}

Will the prosecution now be able to introduce rebuttal testimony re: BPD (Wacked does not equal murder; knowing right from wrong) during the next penalty phase?

{Yes/No}

In this penalty phase re-trial, what mitigating factors can – in your opinion – be held valid? (Sorry, not a yes/no.)


I’m in no hurry. Answer when you can.

Yes, IMO they waited until the end to mention it because they didn't want JM to focus on it.

Yes, now that JM knows they plan to use BPD as a mitigator, he can introduce rebuttal.

Theoretically, there is an infinite list of mitigators. Here, you have "youth" (under 30), mental issues, and supposed abuse as the obvious ones, but as you've seen, silly things like "I can trace Dior ads really well" also count.

 

[Myvice]

Thanks again for all you do AZlawyer. I read about your work in the Anthony trial and have no words for what you freely give to see justice. You are amazing.

 

[Hope4More]

AZL... I should be sleeping, given it's 1AM, but my mind keeps returning to the life 25 parole reversible error question. I listened to JM again. In his first mention of this, he said that "life means the POSSIBILITY of release after 25 years, " which, as it is theoretically possible, is not a misstatement of current statutes so much as a rhetorical sidestepping of them.

Will keep listening for more explicit statements about parole, as I remember that subject came up
more explicitly further in.

The question I have though, is if parole has been abolished, what discretion does a AZ capital case judge really have in deciding a life sentence? Natural life-LWOP, or....what? Life with no parole for at least 25 years, and after that, life in prison anyway, unless AZ statutes have changed to once again allow for parole?

 

[dcsmyth1]

After hearing the foreman's comments about how Arias doesn't "look" like a murderer, I looked a couple things up. About 10% of murders are committed by women, but only 2% of death row inmates are women. And I'll hazard a guess that maybe only 10% of these DP women are attractive like Arias. And of those attractive ones, how many also have the sweet voice, intelligence, and poise that JA can put out there?

So, given all that, IMO the biggest obstacle to Arias getting the DP is who she is (at least on the surface). The state needs to recognize this and figure out a direct strategy to deal with it in front of the new jury.

Is Juan permitted to say all of the above in his argument? Or would that be deemed irrelevant or prejudicial?

 

[Sustained]

After hearing the foreman's comments about how Arias doesn't "look" like a murderer, I looked a couple things up. About 10% of murders are committed by women, but only 2% of death row inmates are women. And I'll hazard a guess that maybe only 10% of these DP women are attractive like Arias. And of those attractive ones, how many also have the sweet voice, intelligence, and poise that JA can put out there?

So, given all that, IMO the biggest obstacle to Arias getting the DP is who she is (at least on the surface). The state needs to recognize this and figure out a direct strategy to deal with it in front of the new jury.

Is Juan permitted to say all of the above in his argument? Or would that be deemed irrelevant or prejudicial?

Maybe a jury instruction should be added to disregard the defendant's appearance when weighing the mitigating versus aggravating circumstances ?

 

[AZlawyer]

AZL... I should be sleeping, given it's 1AM, but my mind keeps returning to the life 25 parole reversible error question. I listened to JM again. In his first mention of this, he said that "life means the POSSIBILITY of release after 25 years, " which, as it is theoretically possible, is not a misstatement of current statutes so much as a rhetorical sidestepping of them.

Will keep listening for more explicit statements about parole, as I remember that subject came up
more explicitly further in.

The question I have though, is if parole has been abolished, what discretion does a AZ capital case judge really have in deciding a life sentence? Natural life-LWOP, or....what? Life with no parole for at least 25 years, and after that, life in prison anyway, unless AZ statutes have changed to once again allow for parole?

Juan's first statement was fine I think--the "possibility" of release in 25 years. Where I got concerned was after the "missed" jury instruction was read during deliberations and they had that mini-argument to the jury in which he said (can't remember the exact words) that 25-to-life would mean Jodi would have a right to a parole hearing in 25 years, even if currently AZ didn't have a procedure for that.

I think the jury should have been told (by the judge, not the lawyers) that Arizona has abolished parole but that, if it is reinstated at some future time, and if JA had been given a sentence of 25-to-life, then she would be eligible.

After hearing the foreman's comments about how Arias doesn't "look" like a murderer, I looked a couple things up. About 10% of murders are committed by women, but only 2% of death row inmates are women. And I'll hazard a guess that maybe only 10% of these DP women are attractive like Arias. And of those attractive ones, how many also have the sweet voice, intelligence, and poise that JA can put out there?

So, given all that, IMO the biggest obstacle to Arias getting the DP is who she is (at least on the surface). The state needs to recognize this and figure out a direct strategy to deal with it in front of the new jury.

Is Juan permitted to say all of the above in his argument? Or would that be deemed irrelevant or prejudicial?

Maybe a jury instruction should be added to disregard the defendant's appearance when weighing the mitigating versus aggravating circumstances ?

JM can make the argument to the jury. I would start by echoing the foreman's statement that it's almost impossible to believe when you look at her that she could have committed such an act. But she's admitted to committing the act, so apparently appearances are deceiving. Then I would segue into not allowing her appearance to influence the death penalty decision. I would point out to the jury the categories of things they can consider (defendant's character, propensities, etc. etc.)--nothing in there about attractiveness and poise.

 

[ladymoonlake]

AZL... I should be sleeping, given it's 1AM, but my mind keeps returning to the life 25 parole reversible error question. I listened to JM again. In his first mention of this, he said that "life means the POSSIBILITY of release after 25 years, " which, as it is theoretically possible, is not a misstatement of current statutes so much as a rhetorical sidestepping of them.

Will keep listening for more explicit statements about parole, as I remember that subject came up
more explicitly further in.

The question I have though, is if parole has been abolished, what discretion does a AZ capital case judge really have in deciding a life sentence? Natural life-LWOP, or....what? Life with no parole for at least 25 years, and after that, life in prison anyway, unless AZ statutes have changed to once again allow for parole?

...does that mean that every criminal given a sentence in AZ must serve every day of that sentence?

 

[AZlawyer]

...does that mean that every criminal given a sentence in AZ must serve every day of that sentence?

Well, I think they get some time off for good behavior...1 day for every 6 served, I believe.

 

[LinTX]

Juan's first statement was fine I think--the "possibility" of release in 25 years. Where I got concerned was after the "missed" jury instruction was read during deliberations and they had that mini-argument to the jury in which he said (can't remember the exact words) that 25-to-life would mean Jodi would have a right to a parole hearing in 25 years, even if currently AZ didn't have a procedure for that.

I think the jury should have been told (by the judge, not the lawyers) that Arizona has abolished parole but that, if it is reinstated at some future time, and if JA had been given a sentence of 25-to-life, then she would be eligible.

I just watched it again, and the only person that argued "parole" was JW. Matter of fact JM never even uses the word "parole". A sentence was included at the very end of the instructions to say that there is no procedure at this time for parole, even though in the body of the instruction it consistently reads "release" and never "parole". Odd, IMO, that that sentence was even there. Cynical me suspects it was the defense that requested it in order to imply that there was no possibility of her getting out, and that's exactly what JW did in her argument - assuring the jury that if she got life she would die in prison. That's just not true - she would be eligible after 25yrs to accrue points for release. This is a semantics game, like many the defense played throughout the trial, IMO. I transcribed it so we can see what was actually said:

JSS:
It has come to my attention that a jury instruction was inadvertently left out of the instructions you received after the guilt phase. The baliff is going to hand each of you a copy of that instruction. The instruction should be inserted after paragraph 3, on page 10 of your final penalty phase instructions. Everyone have a copy?

I'm going to read the instruction to you, it reads:

If you unanimously find the defendant should be sentenced to life imprisonment the judge will sentence the defendant to either life imprisonment without the possibility of release, or life imprisonment with the possibility of release after 25 years.
“Life without the possibility of release from prison” means exactly what it says. The sentence of “life without possibility of release from prison” means the defendant will never be eligible to be released from prison for any reason for the rest of the defendant’s life. At the current time, there is no procedure for granting parole if the defendant is sentenced to life with the possibility of release from prison after 25 years.

Now at this time the attorneys will be given an opportunity to make a brief argument about this instruction.

JW: Good morning. The question with regard to this judge’s instruction is the fact that it’s telling you that if you sentence her, if you choose life in prison, you are sentencing her to die in prison. She will never get out. She will never walk out of prison if you choose life in prison. It means she will stay there for the rest of her life. The other part of the instruction tells you that it is up to the judge to determine whether or not that if you give her life in prison, whether or not the judge can give her the possibility of parole after 25 years. The last sentence of this instruction is very important, because at this time there is no procedure, there is no system in place to grant parole after 25 years. What that tells you is that if you give her life in prison, she will die there, she will never walk out – she will only be carried out. And so the question is before do you sentence her to die in prison or be sentenced to kill her. We ask you to sentence her to prison.

JM:
The jury instruction speaks for itself. You don’t need any of us to tell you that when the instruction says (begins reading from instruction here) “If you unanimously find the defendant should be sentenced to life imprisonment the judge will sentence the defendant to either life imprisonment without the possibility of release, or life imprisonment with the possibility of release after 25 years.
The decision as to whether or not it’s going to be a natural life sentence, without the possibility of release or an eligibility after 25 years is the judge’s, not yours. And there is a mention there that there is no procedure, however once the defendant is vested, or has been given the right to be eligible to be released at the end of 25 years – just because there’s no procedure now, doesn’t mean there isn’t going to be a procedure when that come up - if a defendant is vested with that right to be considered for release after 25 years. Because at that point, she can have a legal right – a legal right - to be considered for release after (JW:Objection) 25 years.
JW: Improper argument, misstates the law.
JSS: Overruled
JM: And that being the case, that’s an issue for another day – what procedure is going to be used at that time. However, the sentence is clear, or the statute and the jury instruction is clear that it’s the judges province – it’s the judges role to decide whether or not the defendant be eligible for release at the expiration of 25 calendar years, or whether the defendant will spend natural life. It doesn’t say that automatically if you say life, it’s going to be a natural life sentence. It just doesn’t say that, thank you.

JW:
The jury instruction is very clear, and the last sentence tells you that there is no procedure in place to grant her parole. There is no procedure that exists, so all that you can learn from taking this instruction is that if you are merciful and give her life in prison, she will not get out.

JSS:
All right, ladies and gentlemen you may retire and continue your deliberations

 

[cosmos]

To me, the key question seems to be this:

Is a life sentence with the possibility of release after 25 years a less severe sentence than life without the possibility of parole?

In this recent Arizona appeals court decision, it was held that the possibility of parole in a life sentence does not reduce its severity, only the actual sentence determines severity: http://scholar.google.com/scholar_case?case=9515308343817678779

Martinez was arguing, in essence, that the defense had used the severity of a life sentence as a mitigating factor, and he tried to refute that mitigation by claiming the possibility of early release.

So could that be specifically where the problem is? That he tried to make a sentence with possibility of parole less severe when it is not less severe?

 

[DollyPardonMe]

If the Jury is given the sole responsibility of deciding on the Murder and aggravating phase, Why are they limited to the penalty phase in AZ by only being given the options of the DP or Life. Why aren't they allowed to decide on DP, LWOP or Life with possibility of parole?

 

[AZlawyer]

I just watched it again, and the only person that argued "parole" was JW. Matter of fact JM never even uses the word "parole". A sentence was included at the very end of the instructions to say that there is no procedure at this time for parole, even though in the body of the instruction it consistently reads "release" and never "parole". Odd, IMO, that that sentence was even there. Cynical me suspects it was the defense that requested it in order to imply that there was no possibility of her getting out, and that's exactly what JW did in her argument - assuring the jury that if she got life she would die in prison. That's just not true - she would be eligible after 25yrs to accrue points for release. This is a semantics game, like many the defense played throughout the trial, IMO. I transcribed it so we can see what was actually said:

This is the part that JM said that was incorrect IMO and would have been grounds for appeal if JA had received the death penalty:

"[O]nce the defendant is vested, or has been given the right to be eligible to be released at the end of 25 years...at that point she can have a legal right- a legal right- to be considered for release after 25 years."

The way the statute is written, this is incorrect. She would not have any legal right to be considered for release after 25 years, because parole has been abolished in AZ and the sentencing statute does not grant any such right.

JW immediately objected that this statement misstated the law. JSS overruled that objection. Now that I read the transcript, I suspect that JM meant to say that, if parole is reinstated in AZ and she has a 25-to-life sentence, then she would have a right to ask for parole. He didn't quite say it that way, though, and the way he said it sounded a lot more like she would have a right to a parole hearing in 25 years, so they would have to come up with a procedure by then.

Just to make sure everyone understands, there would be no problem IMO with him just saying that 25-to-life involves a "possibility" of parole after 25 years, or that the law could change in the future to allow parole again. But the way he worded it, it sounded like "there may not be any procedure now, but if she gets 25 to life they will have to come up with a procedure then, because she'll have a legal right to it."

To me, the key question seems to be this:

Is a life sentence with the possibility of release after 25 years a less severe sentence than life without the possibility of parole?

In this recent Arizona appeals court decision, it was held that the possibility of parole in a life sentence does not reduce its severity, only the actual sentence determines severity: http://scholar.google.com/scholar_case?case=9515308343817678779

Martinez was arguing, in essence, that the defense had used the severity of a life sentence as a mitigating factor, and he tried to refute that mitigation by claiming the possibility of early release.

So could that be specifically where the problem is? That he tried to make a sentence with possibility of parole less severe when it is not less severe?

No, the defense was not using the severity of a life sentence as a mitigating factor, and JM was not trying to make a life sentence sound less severe. The defense was saying, in essence, you don't need to sentence her to death, because if you give her life she will never ever get out, don't worry. JM was saying, well, actually you do need to worry, because she might get out one day, so you'd better sentence her to death if you want to be safe.

If the Jury is given the sole responsibility of deciding on the Murder and aggravating phase, Why are they limited to the penalty phase in AZ by only being given the options of the DP or Life. Why aren't they allowed to decide on DP, LWOP or Life with possibility of parole?

The legislature could have written it that way, but chose not to.