RECOMMENDED: Media Influence in Capital Cases

READ:  The Innocence Project’s Do New Legal Changes Give Prosecutors a Potentially Dangerous Amount of Power?

FURTHER READING:  The Economist‘s 2-part series on the super-sizing of prosecutorial power:

Dan Abrams of Good Morning America said of Jodi Arias, “It would take a special type of person to look forward to a trial that will determine whether you will live or die.”  But that might apply just as aptly to those who are watching the trial with glee, the seriousness of such a proceeding always seems to fall on deaf ears when a case becomes sensationalized.

He also said of the re-sentencing decision by the Maricopa County prosecutor’s office:  “So why is Arizona repeating this spectacle?…she is guaranteed at least life in prison, the only question would be whether she would ever be eligible for parole. So why not just offer her life without parole and end this sordid legal drama?  Many who support this new trial talk like failing to execute her would be akin to letting her walk. Beyond the absurdity of that on its face, it’s important to note that Arizona is one of only two states that would even permit this type of death penalty retrial.  Full disclosure: I have never thought this was a death penalty case. Not because I believe her far-fetched claims of abuse but because as horrible as it was, this is a somewhat typical domestic murder — hardly representative of the worst of the worst for which I believe the death penalty should be reserved. She was a jealous, troubled and spurned lover.”

Abrams went on to say that the case legally fits the definition of a death penalty case, but “just because they can pursue it, doesn’t mean they should…Is it really so crucial to ensure that this woman who prosecutors argued has a borderline personality disorder, sit on death row as opposed to just a maximum security prison for life? No.”

Many mention the cost of the case as one reason to have left the death penalty off the table.  The defense of Jodi Arias cost $2 million, that doesn’t count the prosecution or court costs.

“Is it callous to talk dollars or resources when discussing justice? Yes, but it’s also reality, and having taxpayers foot another enormous bill for this case ought to be of serious concern.  Maybe the most compelling argument in favor of moving forward is that Travis Alexander’s heartbroken family seems to want her to face the death penalty. While that should be a consideration, and I have great sympathy for this family…they don’t, and shouldn’t get to make that decision,” said Abrams.

The first jury deadlocked at 8 – 4 in favor of the death penalty.

Reporter Michael Kiefer made an interesting point recently in an article for The Republic, “who decides which murderers are the worst of the worst?”  It seems as though the media could be a factor.

On the same day that Arias was convicted (and everyone was watching that trial), Crisantos Moroyoqui-Yocupicio pled guilty to second-degree murder, and a Maricopa County Superior Court judge sentenced him to 14 years in prison.  You might not recognize his name because his case didn’t get much media coverage, but he is a member of a Mexican drug cartel and in 2010 he beheaded a man.

As Keifer explains it, “…it is almost impossible to draw a bright line between murders that should be punished by death and those that should not. So the U.S. Supreme Court, in 1976, approved a “narrowing” system ­using statutory “aggravating factors” to distinguish the extraordinary murders from those that are merely ordinary.”

Since 1976, despite the ruling that the death penalty should be applied less using a stringent list of aggravators to determine the worst of the worst fairly and objectively (instead of on a whim factors, including public opinion), the number of aggravating factors has doubled.

“The only narrowing function is ­prosecutorial discretion,” defense ­attorney Eric Crocker said, “You’re at the whim of the prosecutor’s office to ­determine which cases are capital and which are not.”

Maricopa County Attorney Bill Montgomery said that he looks at each case individually and that “you can’t have a formula”.  Instead, prosecutors weigh their chance of success of a death sentence.  Through that analysis, the office thought it had a better chance at getting a death sentence from Arias, a widely-recognized name, than Moroyoqui-Yocupicio.

“The death penalty should be ­reserved for the most extraordinary of cases,” former Maricopa County ­Attorney Rick Romley said.

Despite numerous attempts at defining that phrase, the definition is subjective.

Of the cases that are complicated Montgomery said, “…[those cases are] where prosecutors and defense attorneys are expected to do their work.”

Prosecutors wield their almost unchecked power differently.

In 1991, Randy Brazeal and Richard Stokley took two 13-year-olds to the desert, raped them, crushed them, poked out their eyes, and threw them down a well.  Brazeal pled guilty to 2nd degree murder and spent 20 years in prison.  Stokley was executed in 2012.  Brazeal’s attorneys negotiated a plea deal before DNA results came back, Stokley’s did not.

In 1987, Thomas West was burglarizing a home when he was caught by the owner.  In a completely unplanned reaction, West tied the man up and put him in a closet.  The man died.  West was executed in 2011.

Deputy Pima County Attorney Ken Peasley called a “death-penalty machine” by The Republic was the prosecutor of West and was subsequently disbarred for ethics violations. That title passed to Andrew Thomas who filed several death notices during his career in the 2000s.  He is responsible for the Arias case being labeled as a capital case. In 2012, he was unanimously disbarred by the Arizona Supreme Court because he “outrageously exploited [his] power, flagrantly fostered fear, and disgracefully misused the law”.

In Pinal County, Arizona, the number of death penalty cases per year has more than doubled after Lando Voyles took office last year.

Montgomery, who himself has never tried a capital case, attended several as a victims’ rights attorney.  He has filed capital charges in about 17% of first-degree murder cases.

The battle over the arbitrary application of the death penalty caused a 4 year moratorium of the death penalty in the mid-1970s.  The system of aggravators that came out of the moratorium was supposed to equalize the death penalty, but years later, the system has essentially returned to its old self, some would argue has become worse. The result, says defense attorney Susan Corey, is that the current aggravators cover nearly all murder scenarios, ”The statute as a whole basically makes every case a death case.”

Prosecutors argue that death penalty cases can’t be compared, but it’s hard not to compare cases when such a serious penalty is attempting to be applied.

In 2011, William Null bludgeoned his aunt to death over $50 of cigarettes.  He pled guilty to 2nd degree murder and burglary even though he had 6 prior felony convictions.  Montgomery defended the decision by saying the facts of the case were hazy.

That same year, Jacob Torres stopped a man on his bike and shot him to death, stealing his cell phone.  Montgomery says the murder was a thrill kill and has charged the death penalty.  The trial has not occurred.

Robbie Brown thought his girlfriend was cheating on him, so he hit the man over the head with a hatchet and then chopped him up.  He had prior felonies, but he pled guilty to 2nd degree murder.  Montgomery said that it is unclear whether he is actually guilty.

Ryan Foote kicked in the door of a man dating his ex-girlfriend and shot him to death.  Prosecutors are seeking the death penalty.  His trial hasn’t happened yet.

That is just a handful of cases in Arizona in just 2011.

Corey and her colleague, Garrett Simpson did a study of every murder case in Arizona over the last decade.  Under the 14-aggravator system, every single murder qualified as a death-penalty case.  Clearly not the point of the system.

Superior Court Judge Joseph Kreamer has ruled that the argument that the statute is unconstitutional “needs to be taken on from a policy perspective,” but that as a judge he could do nothing about it.

In April, Governor Jan Brewer surprisingly vetoed a new aggravating factor, the likelihood the defendant is a continuing threat to society or the likelihood the defendant would commit more violent crimes.  This aggravating factor has caused many controversial rulings in Texas.  Brewer said the law was “overly broad”.

In the Arias case, there is only one aggravator:  excessive cruelty.

Marissa DeVault was charged with the same aggravating factor and an additional one, financial gain.  She used a hammer to attack her husband in his sleep.  He survived the attack for a short time.  She killed her husband to collect insurance money, but the jury did not find the financial gain to be an aggravating factor.  She did not receive the death penalty.

In 1992, the U.S. Supreme Court found that Arizona’s aggravators were not overly vague because judges, who had vast experience overseeing many cases, could determine which ones were the worst of the worst.  Courts had hearings to determine the proportionality of the death penalty compared to other cases meted out by prosecutors.  In 2004, the U.S. Supreme Court ruled that defendants had a right to have juries determine their aggravators.  Juries unlike judges have no prior experience in what constitutes proportionally the worst of the worst.  The Arizona Supreme Court has since turned over many cases based upon the same aggravator as Arias’ case due to its vagueness.

The case that most closely resembles Arias is the case of Martin Soto-Fong.  He was one of three men sentenced to death for the Tucson market murders of 1992.  All 3 death sentences were overturned.  Fong’s was overturned because “where shots, ­stabbings, or blows are inflicted in quick succession, one of them leading rapidly to unconsciousness, a finding of cruelty, without any additional supporting ­evidence, is not appropriate.”

According to testimony in the Arias case, Travis Alexander was unconscious within one minute and the medical examiner testified that he was unconscious within seconds if his throat was slit first.

The re-sentencing began Tuesday.

  1. Absolutely, the media has played a huge part in the continued quest for Jodi Arias’ death. But more than that, in my opinion, is Teflon Juan Martinez’ lust for another notch in his death penalty belt. His book and other commercial ventures, once this trial is over, will fare much better if he gets to send Jodi Arias to death row. Any true and fair quest for “justice for Travis” was abandoned a long time ago. It’s all about ego, bragging rights, and money now.


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