Arias’ mitigation specialist, who was previously banned from entering the Maricopa County Jail system for questionable reasons, will now be allowed back in.  An agreement was reached between the defense and the sheriff’s department, but it hasn’t been approved by a judge yet.

Arias’ mitigation specialist was banned from the Maricopa County Jail system after being accused by the jail of trying to smuggle out contraband (a colored-pencil drawing).  Arias’ defense lawyers say that the drawing would go toward the mitigation in the sentencing phase set for September 8th.  A mitigation specialist is an investigator who gathers evidence and witnesses to present to the jury in the penalty phase of a death penalty trial, to convince the jury the appropriate sentence is life.

Legal experts agree that keeping the mitigation specialist away from Arias and her other clients is a violation of the Constitution and the clients’ right to a fair trial.  The Maricopa County Sheriff’s Office says that the defense staff can’t act as a delivery service for their “most notorious prisoner”.  Maria De La Rosa, the mitigation specialist, was carrying the drawing in a sealed envelope addressed to Jennifer Willmott, one of Arias’ attorneys.  The drawing was accompanied by a note that stating it was to be used as evidence in the upcoming trial.  She has 6 clients facing the death penalty, including Arias, in the jail system.

The questionable saga started in February when jail personnel stopped De La Rosa after she met with Arias and confiscated the sealed envelope marked as evidence.  Last week, sheriff’s investigators upped the ante and visited De La Rosa at her home telling her she could no longer visit her clients.  They “snooped” around, peered in windows, and questioned her neighbors.

Arizona State University law professor Paul Bender said that they may have overstepped their authority, “They can determine what constitutes dangerous conduct in the jail and what is contraband. To completely stop her from coming in? Any judge would find it illegal and unconstitutional. It’s a direct interference with her constitutional right to counsel and to a fair defense.”

Since all defendants facing capital trials are placed in pretrial detention, De La Rosa cannot possibly create a mitigation case without meeting with her clients in jail.  The Sheriff’s Office is sticking by their actions, Deputy Chief Jack MacIntyre said, “When you start smuggling things out, you start smuggling other things out.  What’s to stop you from doing it the other way?”  Does McIntyre believe that gathering mitigation evidence in a death penalty case is smuggling?  MacIntyre said that mitigation specialists cannot be conduits “for whoever Jodi would like to correspond with.”

De La Rosa retained Dan Raynak to represent her in this matter, “The only material provided to Maria was legal material, and I find what the jail is doing is outrageous…I personally find it outrageous because Maria is beyond reproach and is one of the finest mitigation specialists I’ve worked with.”  Raynak added that all of her clients are entitled to present mitigation in their cases.

Jennifer Willmott, Arias’ attorney, confirmed that the drawing was part of gathering mitigation evidence, “This is nothing different than we have done for the past two years.”  Noting that they presented her art work in the first sentencing phase, which resulted in a mistrial.  Willmott also said that if De La Rosa wasn’t let back in then the death penalty would have to be dropped.  The Sheriff’s Office apparently “realized their position was untenable,” Raynak said.

The Superior Court Judge Joseph Welty is expected to approve the agreement soon.

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