Can Borderline Personality Disorder Spare Jodi Arias From The Death Penalty?

Jodi Arias’ defense attorneys issued a statement to The Arizona Republic, regarding their belief that Jodi Arias is mentally ill. Their point was that Dr. DeMarte, the expert psychological witness for the prosecution, had diagnosed Jodi with borderline personality disorder. They contended that since she is mentally ill, she should not get the death penalty.Jodimentalill

Bill Montgomery, the Maricopa County attorney, responded that Jodi “was found competent to stand trial and that any statement that she isn’t fit for the proceedings is simply inaccurate.”

Mr. Montgomery is correct. Jodi Arias is mentally competent. There is a big difference between being diagnosed with a mental illness and being mentally incompetent. In other words, mental illnesses vary in severity. Only the most severe, the psychoses, would make one mentally incompetent and thus not qualified for the death penalty.

The statement by her defense attorneys might be a preview of what we can expect them to argue at retrial. They might try and argue that she is mentally ill and should be spared the death penalty. Can having borderline personality disorder spare you from the death penalty? By itself no, unless you were also psychotic at the time. No expert witnesses have claimed that Jodi was at any time psychotic.

The Task Force on Mental Disability and the Death Penalty, established by the Individual Rights and Responsibilities section of the American Bar Association (ABA-IRR), has proposed that the ABA adopt three recommendations when considering mental illness or disability in capital cases. Four other professional organizations, including the American Psychiatric Association, American Psychological Association, National Alliance on Mental Illness, and Mental Health America, also recommend the prohibition of the executing individuals with severe mental illnesses.

As I will explain, the key word severe is important with regard to mental illness and the death penalty.

The first Task Force recommendation prohibits the use of execution or death sentences if “at the time of the offense, they have significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.”

As you can see, their first recommendation focuses on exempting those individuals with significant limitations in intellectual functioning from being given a death sentence. The Supreme Court concluded that individuals who are intellectually disabled are “not even as culpable…as the “average murderer” much less the type of murderer who deserves the death penalty.” An individual is considered intellectually disabled if before the age of 18, their IQ is approximately 70 or below. This exemption would not work for Jodi Arias because her IQ has been measured at above average, 120.

In the case of mental illness and the death penalty the Task Force has made the following second recommendation:

“Defendants should not be executed or sentenced to death if, at the time of the offense, he or she had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences, or wrongfulness of their conduct; (b) to exercise rational judgment in relation to conduct; or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision.”

In the second recommendation, the Task Force is focused on the term severe with regard to mental illness. Severe refers to the most serious disorders, including schizophrenia, or other psychotic disorders, mania, major depressive disorder, and dissociative disorders. On rare occasions, personality disorders may be considered severe but only if there is a psychotic component.

In the majority of cases personality disorders are excluded from death penalty exemptions. With regard to borderline personality disorder, those diagnosed “can experience psychotic like symptoms… during times of stress” but these symptoms can only be considered if they occurred at the time of the capital offense.  That was not the case with Jodi Arias.

The “significant impairment” requirement section of recommendation two, focuses on individuals whose disorders make it difficult for them to appreciate the wrongfulness of their conduct. For instance, an individual who is psychotic and who believes that God has ordered them to commit a crime, might be unable to appreciate the wrongfulness of their conduct.

The Task Force also explains what they mean by exercising “rational judgment in relation to conduct” during the commission of a crime. Irrational judgment does not mean that an individual lacked inaccurate, unusual or bad judgment. Irrational, in the context of severe mental illness, means that an individual was experiencing disoriented, incoherent and delusional thinking, the type of thinking that only someone with a severe mental illness could experience.  Not the prosecution nor the defense, nor did any expert witness suggest that Jodi Arias has or had incoherent, delusional thinking.

The third Task Force recommendation for individuals who should be excluded from the death penalty, is a “significant incapacity to conform one’s conduct to the requirements of the law.” This recommendation is meant to exclude individuals who experience significant cognitive impairment during the commission of a crime. The Task Force exclusively notes that “significant impairment” cannot be attributed to drugs and alcohol nor can it exempt individuals whose only diagnosis is antisocial personality disorder or a related disorder such as borderline personality disorder. There was nothing, in Jodi Arias’ psychological makeup that would have impaired her from conforming with the law. In fact all of the evidence stated that she was well aware of the law, knew that it was wrong to murder and did her very best to cover her involvement in the murder of Travis Alexander.

Each of the three recommendations, that I have listed from the Task Force, is attempting to make a distinction between individuals who cannot appreciate the wrongfulness of their actions due to a mental disorder or disability and “the average murderer.”

There’s no evidence to suggest that at any time Jodi Arias ever experienced psychosis or that she has a severe mental illness. Remember, borderline personality disorder or even antisocial personality disorder are not considered to be “severe mental illnesses.”

Psychosis is associated with disorders such as schizophrenia. I’ve written extensively about the fact that there is no evidence to suggest that Jodi Arias experienced any symptoms of schizophrenia or related psychotic disorders. Jodi Arias, in the context of an insanity defense, would be considered an “average murderer” and not someone who killed due to a severe mental illness.

In death penalty cases, juries are allowed to consider mental illnesses as mitigating factors when they are deciding whether or not to impose the ultimate penalty of death. Though the jury is allowed to consider mental illness, it must make a distinction between severe mental illness and other mental illnesses. Having a mental illness has never and is not at this time, a factor for the jury’s consideration in a death penalty case.

The law is very clear and consistent. In essence, it says that if you have a very low IQ or if you are delusional or if you cannot control yourself, then you should be spared the death penalty. It is of course very complicated and I have done my best, in this article and in previous articles, to discuss the details of the law. No one could build a case, that is based on law, that would exempt Jodi Arias from the death penalty.

Jodi’s defense team has struck out repeatedly in this trial. They will also go down swinging when their latest contention crosses the plate.

References:

Slobogin, C. (2005). Mental disorder as an exemption from the death penalty: The ABA-IRR Task Force recommendations. 54 Cath. U. L. Rev. 1133

Winick, B. (2009). The Supreme Court’s evolving death penalty jurisprudence: Severe mental illness as the next frontier. 50 B.C. L. Rev. 785.

57 thoughts on “Can Borderline Personality Disorder Spare Jodi Arias From The Death Penalty?

  1. If Borderline Personality Disorder is used as a mitigating factor by the defense, then they should be required to explain their *expert* witnesses who disagreed with that diagnosis. They should have to declare publicly that their defense was incompetent. They are also stressing the absence of witnesses to testify for her in the penalty phase. Womack was given every opportunity and protection to speak, on camera or off, and the defense declined, using “threats” as an excuse. Darryl was willing and ready to go and he was not called.
    The following link is long but it explains this legal maneuver:

    http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1037&context=aulr&seiredir=1&referer=http%3A%2F%2Fwww.google.com%2Fsearch%3Fq%3Darizona%2Bv%2Bdefense%2Bcounsel%2Bintentionally%2Bcreated%2Berror%2Bat%2Btrial%26ie%3DUTF-8%26oe%3DUTF-8%26hl%3Den%26client%3Dsafari&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Fsearch%3Fq%3Darizona%2Bv%2Bdefense%2Bcounsel%2Bintentionally%2Bcreated%2Berror%2Bat%2Btrial%26ie%3DUTF-8%26oe%3DUTF-8%26hl%3Den%26client%3Dsafari#search=%22arizona%20v%20defense%20counsel%20intentionally%20created%20error%20trial%22

    I think this penalty phase was decided by JA’s appearance. There are many on Death Row who have done a lot less. If JA was a rough-looking male, the deal would already been done. As crass as it is to say, Zervakos heard the *call* and based his vote on her presence and not facts. The facts he cited are so weak, unproven and one-sided that it makes no sense that it could even be consider against the weight of the aggravating factors.

    Can mental illness be used to save her? It is going to be how the defense plays it to the jury, the jury demographic, and how the prosecution can prove that BPD does not prevent someone from knowing right from wrong, and that it is not an excuse for premeditating a slaughter like this.

    • Thanks for posting that link! I haven’t finished reading it, but my jaw dropped when I read the following:

      To safeguard against a subsequent finding of ineffectiveness, however, counsel should undertake

      inquiries into social background and evidence of family abuse, potential mental impairment, physical health history, [any] history of drug and alcohol abuse,… [an] examination of mental and physical health records, school records, and criminal records… [and a] review [of] all evidence that the prosecution plans to introduce in the penalty phase proceedings, including the records pertaining to criminal history and prior convictions.

      Because of the substantial mitigating weight accorded to evidence of severe psychological problems, mental defects, and childhood abuse, the modern case law exhibits especially little patience for attorneys who fail to conduct at least a basic inquiry into these topics.

      Source: Tactical Ineffective Assistance in Capital Trials by Kyle Graham. American University Law Review, Vol. 57:1645, p. 1661-1662.

      • @Linda,

        I did read through the article and it is very interesting. Yet those factors are exactly what the Mitigating Specialist, Maria De La Rosa, was tasked to complete because of this being a capitol case for the death penalty. She was the one sitting behind Jodi. I would love to read her findings!

        • Elaine,

          Indeed, her findings would surely prove an interesting read. We may never know exactly how much investigation was done in the mitigation area. How wide was the net she was able/allowed to cast to find witnesses? The three witnesses she found ended up unable to take the stand. Two of the three (Womack and Brewer) had little contact with Arias in the years just prior to the murder and would have been unable to testify to the abuse allegations, either during childhood or by Travis Alexander. The third (LaViolette) apparently refused to testify out of personal concerns. Was LaViolette’s testimony critical for mitigation? I find that doubtful since any “evidence” she had of good character, mental condition or abuse had already been presented during the guilt phase of the trial.

          We can only wonder how many others De La Rosa might have interviewed during her investigation and what her findings were. The only conclusion we can make is that those three were the cream of the crop. And that speaks volumes.

          Because of the substantial mitigating weight accorded to evidence of severe psychological problems, mental defects, and childhood abuse, the modern case law exhibits especially little patience for attorneys who fail to conduct at least a basic inquiry into these topics.

          Assuming Nurmi and Willmott are competent attorneys, they likely did the best they could with this difficult case. They were stuck with self-defense as the theory of the crime because that’s the story their client gave them. I’m not an attorney, but it appears to me they went at least as far as the law required them to go. They conducted “at least a basic inquiry” into “severe psychological problems” and “childhood abuse” — if they discovered anything more than what we saw at trial but didn’t present it, they had a good reason.

          Sandbagging mitigation may be beneficial to the client but it’s risky. According to the article, if an attorney is caught doing it there will be hell to pay. I just don’t see either Nurmi or Willmott as being willing to take that risk for Jodi Arias, a client who has done nothing but lie to them.

          • I’m curious who says Laviolette refused to testify in the mitigation phase because of personal concerns. She has not right to refuse to testify, having been paid to be an expert on the case. The only way she could get out of it would be by court order and I see no such motions filed. I think this is pure fiction spread by the defense to make it appear as if she couldn’t testify. Remember Judge Stephen’s sharp answer to her when she wasn’t sure if she could show up on a Monday or Tuesday. The judge pretty much told her, chose one day or the other, but she’s under court order and must appear. That’s the same answer if the defense should want to call her in mitigation.

            She’s a PAID EXPERT, paid by Arizona State dollars no less. She has no right to say she can’t continue the case to the end. Don’t believe the rumor.

    • Did the defense consider the full ramifications for themselves? That’s what I question. Was their statement through the media a gauge for public opinion on costs plus, a test for acceptance of BPD as a “mental illness” to support a defense against the death penalty? I believe it was just that, a gauge and, I think it was a premature statement without significant considerations. I don’t think their statements have provided any reasonable feed back on those issues.

      But I also think Dr. Randle makes a greater point here; “Jodi’s defense team has struck out repeatedly in this trial. They will also go down swinging when their latest contention crosses the plate.” I think that is largely due to Jodi Arias alone. We’ve also yet to hear the courts ruling on requested delays due to pressing court cases for both Willmott and Nurmi. This could prove yet another dilemma for the defense if the court rejects those motions. At this point, they must be burning the candle at both ends, a “rush to judgement” so to speak, before the gavel of time comes down this coming week.

      If in fact this were “sandbagging,” as the article link suggests, I’d have to be convinced that Nurmi is a genius to secure additional pay to carry through the farce of an incompetent defense, a tactic to keep their client off death row. And what could Samuels or LaViolette recount that has not already been rejected by the jurors through their findings of 1st degree premeditated murder with cruelty? IF the defense considers an independent evaluation, I consider that an extreme risk for the same diagnosis which Dr. Randle has noted. The DSM-5 is damning evidence of that and yet, no mitigating factor exists there either. So what is left, character witnesses? Are they buried, with the gun?

      Quite frankly, the witnesses they’re seeking to support any contention about their client in a positive light is noted. Every opportunity was given by the court for a safe statement of facts as known by those witnesses. Including bringing Jodi’s parents, siblings and relatives into the fray. I don’t believe Womack wants to risk cross examination. I think the lawyer she consulted gave her fair warning. The prosecution made it clear, there are photos of her and the defendant and other “legal” matters still pending for Womack. That’s the fear she feels. This says as much about her own history as it does Jodi Arias’s. Brewer was left standing by the defense, just as Chris and Sky Hughes were though for different reasons. Brewer then chose to speak out to the media after the guilt phase. So, why wasn’t he presented as a character witness?

      Nurmi angrily stated in court that no witnesses would be brought forward and citing unfounded fears, among other gibberish. Was Brewer afraid? No. But he still risked further cross exam by the prosecution, especially about the gas can and his reluctance to admit on the stand about his statements made to a defense investigator long before the trial. I have a feeling Jodi believed she was her own best character witness. The defense knows too that bringing anyone from Jodi’s family is a huge risk. What’s left? Donavan? I bet the defense wishes witnesses came with the Clapper. They could turn off everything their client has done to everyone she has ever met and became involved with. Including her own defense team. Jodi rules.

    • Linda,
      Perfectly stated. The defense will throw everything out there and hope it sticks with the second jury.
      Will Jodi and her massive ego allow her defense to use that tactic. Hmmm..

  2. I’d be interested to learn whether or not the defense could, within the Arizona law, go back to the drawing board and try to find an expert witness to proclaim Jodi’s mental state possessed an element of psychosis on 4 June 2008. If they can and do find such an expert, how will that alone impact a potential 18 July re-start on the penalty phase of the trial? I have to believe it would blow it out of the water.

    Willmott and Nurmi have already requested a postponement until January 2014 due to other trial commitments. If granted, that would give them time to conduct further psychological evaluation. If postponement is denied on scheduling conflicts alone, I could imagine Judge Stephens granting them time to conduct further evaluation on the basis of effective assistance of counsel. The prosecution pretty much opened that door, I suspect.

    • Wonderful information from the article KR and from all the comments! I wouldn’t put anything past the defense team. I do agree w/others here Jodi probably nixed a defense based on mental defect or even one explicitly based on “sudden heat of passion” during the guilt phase as she wanted to portray the killing of Travis as HIS fault, not hers. Nurmi DID suggest heat of passion when talking to the judge about the sex tapes (see article on this site) and to me, that implies that defense had been explicitly discussed.

      So far as being able to find a mental health professional to say she was psychotic at the time of the crime, @Linda K, I can’t say what AZ law allows but that approach seems unlikely to work to me. The defense has portrayed Jodi as a normal (abused) woman who was forced to defend herself. Samuels came as close to mentioning anything like psychosis as he could, claiming she was in a “dissociated state” AFTER the crime (to explain her memory “fog”) It’s become obvious during this trial some “professionals” in the mental health field will say anything for money (I’d put all 3 of the defense “experts” in that category), but to claim with any degree of (scientific) certainty 5 years after the fact Jodi was psychotic that day even though there has been no evidence of psychosis since (and there is evidence to the contrary in the days after the crime, during Jodi’s incarceration, and during the trial), it seems that would be unlikely to succeed. We know that the judge didn’t allow Samuels to testify to “analysis of the crime scene” to go to show lack of premeditation so it seems unlikely to me that sort of analysis could be used to suggest psychosis at the time of the crime either as that sort of analysis isn’t scientifically accepted. So what evidence could there be of psychosis at the time of the crime? I realize BPD MAY include periods of psychotic-like symptoms (in fact, the term “borderline” initially was used to mean “on the border” between neurosis and psychosis) but it is my understanding based on more recent research, full-blown psychotic symptoms in BPD are actually rare. When they do occur, they are usually attributable to the presence of a second diagnosis such as substance abuse or bipolar disorder. While I’ve heard some TV pundits and internet posters opine Jodi is bipolar, if she’s not been taking meds for it, she doesn’t have it (because she’s been way too calm and emotionally stable for the past 5 yrs to possibly have untreated bipolar disorder.)

      One disorder I’ve not heard mentioned that MIGHT fit is intermittent explosive disorder. That diagnosis requires multiple incidents but if we count the slashed tires in addition to the killing, we have 2 that we know of. The out-of-the-blue screaming phone calls the father mentioned might fit too. The full clinical picture is not there because individuals with this disorder are usually very remorseful after the explosive incidents (but they do experience pleasure/relief during the explosions—something the defense wouldn’t want to claim!) That dx also doesn’t fit with premeditation (but the defense contends the killing wasn’t premeditated anyway)

      • lizzie,

        I think you read my mind perfectly!

        – Nurmi DID suggest heat of passion

        Indeed he did, on more than one occasion, including during his summation where he boldly said the most she was guilty of was manslaughter. I suspect Nurmi and Willmott both tried to convince Jodi that was her best defense, especially after her disastrous 18 days on the stand. She likely nixed the idea at first but relented and allowed Nurmi to go for it… his argument to add manslaughter to the initial charges came relatively late in the trial (after her testimony, if I recall correctly). And Samuels did manage to insinuate heat of passion during part of his rambling discourse about something else. I don’t remember exactly how he worded it, but I about jumped out of my chair at the time.

        Here is where I question whether the law will permit the defense the latitude to reevaluate her mental state. Would it be fruitful to assert that the client’s permission for the argument came so late that there was inadequate time to switch horses during the guilt phase and that, only now, is there time to do so. Just curious how that would play and whether the addition of the manslaughter (heat of passion) theory opened any doors that weren’t already closed by a finding of premeditation.

        – It’s become obvious during this trial some “professionals” in the mental health field will say anything for money.

        See me nodding? I considered one might use the “fight or flight” state Samuels testified to as a foundation for evidence of something more. But, as you said, his diagnosis of dissociative amnesia wouldn’t be helpful.

        – One disorder I’ve not heard mentioned that MIGHT fit is intermittent explosive disorder. That diagnosis requires multiple incidents but if we count the slashed tires in addition to the killing, we have 2 that we know of. The out-of-the-blue screaming phone calls the father mentioned might fit too. The full clinical picture is not there because individuals with this disorder are usually very remorseful after the explosive incidents (but they do experience pleasure/relief during the explosions—something the defense wouldn’t want to claim!) That dx also doesn’t fit with premeditation (but the defense contends the killing wasn’t premeditated anyway)

        We have at least two instances of tire slashing, maybe three: I seem to recall testimony that she slashed his tires twice (in addition?) to the time she slashed them when he was at Lisa’s house (and slashed hers, too). Then we have her kicking her mother, kicking the dog, breaking down doors… all very disturbing behavior. But, as you noted, remorse is a bit of an issue where Jodi’s concerned. She did express some remorse in her journal in the passage where she describes breaking down doors. And she expressed remorse for kicking the dog, saying something like “I need to apologize to him.”

        Premeditation… I have no suggestions on how to jump that hurdle. Looks like Mt Everest to me. Makes my brain hurt.

        • Linda, Dr. Samuel’s insinuation made me jump out of my chair too! He initially wanted to claim that as an expert he can examine the crime scene and determine whether the murder was premeditated or an impulsive act in the heat of the moment. Can you imagine this charlatan??!!

          Well, it just so happens that the law does not allow an expert in a criminal case to give an opinion as to the intent of the defendant during the commission of the crime. An expert is precluded by the law from giving an opinion as to the mens rea (mental state or intention) of the defendant. So this charlatan pretends he can just slip into his testimony that the crime scene gives off clues as to what happened and he has some crystal ball that can see what happened from seeing the crime scene photographs.

          It is a settled matter of law that the expert cannot opine on whether or not the defendant acted with premeditation. The reason for these rules is that only the jury can determine whether the defendant had the requisite intent in the commission of an offense. It’s a farce to bring in hired guns working for one side to claim expertise on whether the person had the intention.

          In fact, in this case, Juan obtained a pretrial order against Samuels doing this very thing. But no matter, Nurmi, Willmott and Samuels were determined to try to slip it in through whatever deceptive means possible. I too jump off my chair when I Samuels slither it in pretending he was not violating the court order. (I don’t remember specifically, but I’m sure there was an objection by Juan and Samuels was re-directed away from his nonsense.) Could he be any more of a charlatan?

          • Here’s a link to the May 20 public hearing held outside the presence of the jury where Nurmi is denied the mistrial and withdrawal motions. You can of course listen and see if you interpret Nurmi in the same way I did. It’s brief, only fifteen minutes in length.

            Paraphrasing: Nurmi is alleging that both Womack and LaViolette declined to testify in the mitigation phase because of intimidation by the prosecution. He mentions an ex-parte hearing was held with regard to LaViolette’s concerns and the record was sealed.

            I don’t know what else to think other than both witnesses were refusing to testify and that if either could be compelled to testify, they likely would have been.

          • Now for the correct reply to your post… lol

            I don’t know if there was a pretrial motion to exclude the “crime scene = heat of passion” testimony but I do remember Willmott making the argument for it mid-trial, just before Samuels testified. She sounded like a nut, claiming it wasn’t being presented for the truth of the matter asserted. Give me a break. Nice straw grasp but no cigar.

        • Yes, we certainly are thinking alike Linda K!

          It may be that they can make a case for Jodi having a change of heart re: strategy. I don’t know how that would play out legally but it seems the judge does have evidence that Jodi was driving the bus during trial to the dismay of her attorneys at times. But since Jodi did participate in defense “psyc evals” already, and evidence from her defense psyc experts was already presented, I’m not sure what would come of that. Would the defense be saying (in effect) forget what ALV, Samuels and Geffner said because they were wrong? Or would they be saying they were wrong because Jodi lied then but NOW she’s telling the truth? (Haven’t we already been down that road?) And I still don’t see how the defense could find anyone but a true bottom-feeder to say she was psychotic 5 years ago. As discussed in other articles on this blog, it’s not that easy to prove “insanity” during the guilt phase of a trial, and so to be able to show “temporary” psychosis as a mitigator AFTER a first degree verdict and after so much time has passed since the crime seems unlikely. When defendants are successful in using insanity as a defense against guilt, I think there is usually pretty convincing evidence the person was psychotic before the crime (e.g, Andrea Yates and one from my state of NC—Wendall Williamson) and/or is quite mentally disturbed after the crime. Or if the person is found guilty regardless, at least the “insanity” evidence is on the record before sentencing. None of that applies to Jodi given that, at best, she has only a personality disorder and MAYBE some post-crime amnesia on record. (And even those have been argued over) Of course, all that is needed is one juror to buy in, so maybe an obviously incompetent mental health professional will do the trick.

  3. Nurmi and Wilmott knew exactly what Dr. Demarte’s testimony was going to reveal. They interviewed her prior to trial and were fully aware of her BPD diagnosis of Arias. They had the benefit of Dr. Samuels being able to review Demarte’s diagnosis and to concur or to disagree. Are they now saying that they agree with Demarte’s diagnosis? Are they saying that they believe Arias is mentally ill? No, they are not. They’re not conceding anything. They’re merely saying that since the State believes Arias has BPD, the State must therefore believe she is mentally ill and it’s wrong to seek the death penalty for a mentally ill person. Nurmi and Wilmott can’t state that they believe Arias has BPD or that she is mentally ill, because to do so opens the door to incompetent counsel. What kind of lawyers put their mentally ill client on the stand for 18 days? What kind of lawyers refuse to call witnesses to speak on behalf of their client in the penalty phase? What kind of lawyers allow a mentally ill client to wax eloquent about a T-shirt business, a recycling program and bilingual lessons for inmates? Nurmi and Wilmott want to spare Arias the death penalty, but not at the cost of ineffective counsel on THEIR record. They really just need to shut up. There’s no logic behind their argument.

    • I’m not disagreeing, but…

      I think most would agree Jodi “Einstein” Arias is driving this bus. “I’m not crazy.” “Oops, okay, maybe I am.” “Now go defend me so I get a hospital bed rather than death row.” /shrug

      Just sayin’

      • I think you are right. Jodi does not want to be known or even appear to be mentally ill. Whatever works for Jodi the chamelian will change. She will then hold a presser and say she is not mentally ill . She had no choice but to go along with the recommendations of her defense team for her family’s sake.

    • Patty, I agree with a lot of what you’re saying here. My point of departure would be the ineffective assistance of counsel point. Under the law a lawyer MUST allow the defendant to testify if they want to. The decision can only be made by the defendant regardless of whether they are mentally ill or not. The court personally asks the defendant outside the view of the jury (and the cameras) if it is her decision to testify or not testify as opposed to that of her lawyers.

      If a client were mentally incompetent, the court would step in to stop the trial altogether until they were competent. But Nurmi & Willmott face no consequences if they let a mentally ill client testify (as opposed to the court allowing a mentally incompetent defendant testify.)

      There is case law and a trend recently of defense lawyers deliberately setting up ineffective assistance during death penalty cases to get the client off on appeal even if they are accused in the appeals of ineffective counsel. It’s become a problem that appellate courts recognize and they specifically look at whether the attorneys’ ineffectiveness was strategic (for a benefit to the client) and if they believe it was strategic, they find there was EFFECTIVE counsel because a strategy shows effectiveness.

      Nurmi did this exact thing with a bold face when Judge Stephens denied his motion for mistrial at the moment he was supposed to put on mitigation witnesses. He accused the judge of denying Jodi effective assistance of counsel by denying him the ability to represent her in a fair trial (cause Juan was mean to everybody!). And as a consequence, he would not put on any witnesses on purpose. If you ever get a chance to see that video again, Judge Stephens was taken aback and paused as never before. I think its because she realized at that moment that Nurmi had set up a reversal of any death sentence on grounds of ineffective counsel by refusing to participate fully in mitigation as the law REQUIRES. Nurmi could not prevent Jodi from giving her allocution because that decision is hers alone. Once she was questioned by the judge and said she was speaking, Nurmi could not say that since he’s taking his ball and going home, Jodi won’t be playing either.

      I’ve always thought one reason Judge Stephen was quick to accept the jury’s impasse and declare a hung jury rather than keep instructing them to go back and deliberate further is because she knew a death sentence would be reversed on appeal because of what Nurmi did. As painful and disappointing as it was for everyone, it was the best possible result because a decision of death would have resulted in reversal and re-trial of the penalty phase in 2-4 years.

      Nurmi doesn’t have this same trick in his arsenal the next time, because the appellate courts look at the circumstances closely to decide if it was strategic (for benefit) or just plain incompetence of a lawyer. If he tried again to say “I won’t play” and not put on mitigation, the appeals court would have to find it was a strategy and therefore not ineffective counsel.

      • You’re the attorney and I defer to your legal opinion. But, in reading the legal review article linked by Linda Moore, I came away with a new understanding that put my old notions in the dumpster.

        I, like you, had thought that Nurmi did exactly as you described… deliberately provoked an appeal or tried to. After reading the article, I think what he did wouldn’t matter even if the jury had come to a unanimous verdict. Here’s why I now think that (based on what I just read):

        1. If the defense attorney is aware of and fails to investigate a potential mitigating factor, it must be later shown that the mitigating factor had significant merit and failure to present caused prejudice.
        2. The attorney has an obligation to make a “reasonable” effort to investigate mitigating factors. It is not necessary to pursue all possible investigative leads to their conclusion on the mere hope of finding something useful.
        3. If it’s determined the attorney made a “reasonable” effort to investigate but that the findings were deemed to be “double-edged” (as likely to aggravate as mitigate), a decision not to present such evidence will be respected by the courts.
        4. The defendant must prove that any mitigating factors not presented outweighed the aggravating factors and therefore created prejudice in order to get a sentencing retrial.
        5. Mitigating evidence must be additional evidence not presented during the guilt phase, not just a repetition of that evidence.

        Putting Darryl Brewer, Patrisha Womack and/or Alyce LaViolette on the stand in the penalty phase would have no effect if they were unable to give new evidence regarding (a) Jodi’s mental health or (b) childhood abuse or (c) any other significant mitigating factor. Furthermore, putting a member of the Arias family on the stand would arguably be double-edged and strategically omitted for cause.

        Does that sound right?

        • Linda, just shooting off a quick response cause I didn’t read the article and my mind is off on something else today. Your points are good. The difference in what Nurmi did and what the analysis a court would make about prior evidence is that because Nurmi refused to put on ANY EVIDENCE the court has to look at ineffective counsel rather than analyze what merit the evidence would have. Appeals courts have repeatedly said that in death penalty cases you must put on mitigation. The court will not second guess in all cases if the mitigation that was put on or not put on was good or bad. But if NO EVIDENCE is put on, the whole process has to be re-done and the attorney’s choice to ignore the law is ineffective assistance of counsel.

          That is why Nurmi had no excuse not to put on Daryl Brewer but said to Judge Stephens that since she will not declare a mistrial and since he cannot put on “the whole picture” he would not put on even a partial picture. He knew that if he put on any witnesses, the appeals court would be less likely to reverse. But no witnesses is the equivalent of him sinking the ship on purpose and courts will not hold that against the defendant whose sentenced to death.

          If he does put on evidence and complains that he needed more with Laviolette, or Patty or whatever the analysis of the appeals court then does look to whether it would have made a difference. But no mitigation evidence is ineffective counsel because the law actually requires mitigation evidence to be put on. Its not his choice to say no. But the court will not hold it against Jodi.

          • I think the defense should be scrutinized, fined, and held accountable, for some of the tactics they used in Ms. Arias’ trial. I know they originally did not want to be there, and granted, for what they originally had to work with, I give them credit for doing the best they could, but some of the weird things that have taken place and disrupted the entire procedure, they need to be held accountable for trying to set up a mistrial.

          • Gotcha! If that fine point was included in the article, I didn’t pick up on it.

      • Maria Cristina,
        Judge Stephens made arrangements for one of the mitigation witness’s to speak on off camera and the other was waiting to be called and never was. He was waiting at the hotel and never called. How can the defense get away with that?
        They have had 5 years to find their mitigation witnesses!!! God it makes me mad!

          • Maria,
            During Jodi’s interview after the verdict on her murder conviction, she stated that her attorneys
            told her she had NO mitigating factors.The reporter (Troy Hayden) asked her if her attorneys actually said that to her and she stated yes. She claimed that they joked that her mother did not hit her enough with the wooden spoon. Could this interview be used against the defense in the future if she gets the death penalty and they try to appeal?

          • It’s an interesting question, Chris. I always thought the reason Nurmi and Willmott were so pissed about that interview, marching into Judge Stephen’s chambers demanding to withdraw, was because she revealed publicly what her attorneys had told her. The first rule of the attorney client relationship is that you never tell other people what your lawyer says to you especially about strategies.

            I wondered why she did it. I thought at the time that she was devious enough that she was setting up a public record of them giving up on mitigation so she could blame them later on appeal. I thought she was setting up the scenario that they were just leaving her to her fate of death. If they did say she had no mitigation, yes, she could use it on her appeal, because everyone has some mitigation even if they have to bring in her cell mates to say she shares her crayons.

            If you noticed, after that interview, Willmott refused to look at Jodi anymore, no matter how much she leaned in trying to get eye contact. She didn’t start interacting with her again until the closing argument when she asked the jury, “Should you kill her?”

          • I look at it this way: they did the best they could with what they had. Further, it is an interesting idea – the idea that a witness was made unavailable due to threats (and which threat trumps – the safety threat or the threat of arrest). It makes for another pretty interesting route for appeal.

            The idea behind the defense’s presentation in the penalty phase is to paint a complete portrait of the Defendant with the idea that something or everything presented will mitigate, i.e. sway the jurors to believing that the Defendant isn’t the worst of the worst and is deserving of some leniency. Leniency in this case is LWOP or a lesser sentence. It’s not a pass on the conduct that got the person a guilty of first degree – it’s merely a showing that the person should be given something less than Death, even if it’s just barely less than Death.

            To create that portrait of the entire person, the Defense has to put on evidence of the person’s life that suggests she is not Death worthy. This usually entails putting on experts, but it also entails putting on those who can speak to the good things about the person, in some senses transforming the Defendant back into a person.

            In this case, the defense was limited, and excising the one person willing to come forward and speak to a personal, long term relationship with the Defendant would be catastrophic. Yes, there was another person willing to speak (former boyfriend of a few years, if I remember correctly), but he could not speak to the Defendant as a girl, or as anything other than a former girlfriend. And, yes, they could probably find another jail inmate willing to testify that the Defendant lent her crayons, but would you really want another inmate testifying to the last little bit, and crayons, or a long time friend who shared a lot of growing up?

            So, with the woman who wouldn’t testify, the problem became one of putting on a half assed mitigation (not that there were many options to humanize the woman to begin with), or putting on no evidence, virtually guaranteeing a retrial in the penalty phase.

            Nurmi at least had faith in his convictions, opting to put on no evidence rather than a half assed mitigation case. (kind of ironic, isn’t it – putting on no mitigation may be a better assistance of counsel than putting on what was left).

            What should be informative to Martinez is that despite putting on NO mitigation, the jury still hung on the issue of life or death. If he wants Death, he’s going to have to deal with things a bit differently (including getting into BPD, and why that isn’t enough of a mental disorder to mitigate against death in favor of life).

            And while you’re railing at Nurmi, et al, remember, he’s doing the best he can with what he has. He has a Defendant who changes her story more than she changes her underwear. He’s had to deal with her suicidality, which is possibly an indication of her BPD, or is the natural phase that Defendants facing death go through, some during the trial, some after the trial when suddenly they drop all appeals and “volunteer” for death. He’s had to deal with a trial that has gone from a local sensation to a national sensation. Further, he has to deal with a Defendant who controls some aspects of the Defense (e.g. the Defendant has sole control over whether she testifies or not at trial or at the penalty phase, the Defendant can nix strategies like using the mental health issue, and a Defendant who’s so understanding of Attorney/client confidentiality that she blabs her understanding of aspects of strategy on national tv). It’s difficult enough to defend a murderer; it’s even more difficult to defend a murderer who won’t shut up.

            The Defense brought up the BPD aspect in closing on the penalty phase, using what the State brought to the case as an argument for mitigation (remember, we’re not talking getting off, or going to a mental hospital; we’re talking the difference between life and death). It wasn’t adequately addressed by the State as something other than a mitigator. Further, it’s also an issue ripe for appeal as mental illness and the death penalty will be decided by SCOTUS in the near future.

            Listen, they’re trying to do everything they can to save their client’s life, or at least postpone her death as long as possible. If you were on trial for your life, wouldn’t you want the best defense possible? If you were sentenced to death, wouldn’t you want an almost automatic appeal issue built into that verdict?

            Nurmi is not my style, but I do respect the man for doing what he can with what he has. I do not envy him for his client or the case that landed in his lap.

          • Of course if I were sentenced to death for murdering someone I would want all of that..and more. I would want to be free, rich, not punished at all and famous.

            Some of what Nurmi has done should be expected–the experts, the fabricated self defense syndrome, he-put-it-in-her-ass-and-she-lost-her-mind-and-killed-him-and-can’t-remember-because-of-the-trauma. But some things are actually unethical and not allowed because he is first and foremost an officer of the court. That means that he serves as an attorney as a privilege invested by the highest court of the state whereby he must obey the rule of law in everything he does. As an officer of the court, he must not lie, must not subvert the rules of criminal procedure or the rules related to how a death penalty case is defended. In all cases, MITIGATION EVIDENCE IS MANDATED BY LAW. There are many articles out there on this new phenomenon of attorneys unethically and in open contempt of the court are setting up ineffective counsel by refusing to put on evidence.

            Yes, if I am a murderer, he’s my main man! But he’s an officer of the court, not just Jodi’s personal confidant trying to save her life. He must save her life only while abiding by the ethical rules and rule of law. My problem with Nurmi is his dishonesty, the way he lies right in front of the cameras.

            I am the first to defend that many people assume all us lawyers are corrupt and evil because they don’t understand that the system only works if each person gets the best defense possible.

            But yes, I’m feeling murderous tonight…get me Nurmi on the line, please. :) I’m playing with you, of course! :)

  4. Personally, I think she’s crazier than a rat in a coffee can, to the point of raw evil — but she is fully aware of every single thing she does and says and why she does and says it. It is always for her own benefit and there’s no other reason why she does or says anything, ever. If it’s of use to her own advantage, she will say or do it, up to and including committing a brutal slaughter of another human being. As always, she was perfectly aware of what she was doing to Travis too. She’s also a blackmailer. Love me or I will expose you as anything I want to decide you are to all your friends and your employer and church. Or maybe instead, I will just carve you up, because if I can’t have you, nobody will. I have believed all of this since Day One of that trial. She most certainly knew then and knows now what is right from what is wrong. She simply chooses not to allow it to apply to her own Narcissistic self. Jodi Arias is without a sliver of conscience. That makes her dangerous to everyone else around her, including the general prison population. She deserves to die so that others might be safe.

    Let’s just say Jodi’s crazy but she’s not stupid. She will use any tool, including her own defective mind, to save herself. As I have said before, I would love to see her in solitary for the rest of her life, with nobody as company but her own horrible self. But if the last jury is a sampling, I’d say she’s going to find a way to entrance at least one juror during the next round just like she did in the last round. Watch her carefully as she studies each member of that jury like a spider watching for a fly–and then adjusts hers web accordingly for the “kill”.

    • “But if the last jury is a sampling, I’d say she’s going to find a way to entrance at least one juror during the next round just like she did in the last round. Watch her carefully as she studies each member of that jury like a spider watching for a fly–and then adjusts hers web accordingly for the “kill”.”

      And that is the truth. I think every time she looked at the jury when answering a question she was looking at WZ and whomever else she deemed weak. She will do it again. She now probably feels she is as good as the professionals if not better in choosing jurors.

  5. Thanks Dr. Randle for explaining why Borderline Personality or Antisocial disorders won’t save Jodi Arias from the death penalty. Serial killers Ted Bundy and Charles Manson were both sentenced to death and they were crazy as bedbugs. Bundy was executed and Manson’s death sentence was commuted to life.

    The 12 jurors believed DeMarte and didn’t let her BPD diagnosis stop them from finding her guilty of first degree murder with extreme cruelty and eight of the 12 voted for the death penalty despite the diagnosis. So I doubt if it would work with a new jury. The jurors who voted for death said she is evil, rather than mentally ill.

    It will be interesting if Jodi will allow mental illness as a mitigating factor in the retrial. Her age of 27, no criminal record, her lies about Travis verbally and mentally abusing her and her dysfunctional family worked on four jurors so maybe she won’t take a chance on being perceived as mentally ill. When asked by a juror if she got help for her mental problems, Arias answered that she didn’t think she had any mental problems.

    However, the new jury will see her as a convicted murderer and not innocent and not spend five months with her and 18 days of listening to how abused she was by her parents and the Big Bad Mormon Pedophile Abuser so they may not be so easily manipulated as Zervakos and the other three.

    The talking heads and news pundits have criticized the defense for using self defense instead of heat of passion due to mental problems. Most legal pundits believed the defense should have embraced Dr. DeMarte’s diagnosis of BPD instead of trying to prove she was wrong.

    ABC TV’s Amy Murphy was one of the journalists handpicked to interview Jodi Arias while the jury was deliberating whether she lived or died. Murphy told HLN after the interview that she concluded Jodi Arias was insane. Murphy, who does not have a degree in psychology or psychiatry, based her insanity diagnosis on:

    1- Arias’s flat affect. She believed Jodi was being given anti psychotic drugs.
    2- Murphy asked Arias why she did a headstand in the police station after she was arrested and she replied that she liked doing handstands on carpet, saw the room was carpeted, figured there was no carpet in her jail cell and so she did the headstand.
    3- Jodi admitted to Murphy that there was something wrong with her and when asked why her attorneys didn’t use an insanity defense, she said she didn’t know.

    Arias also told Murphy it was her defense team’s decision not to have her mother talk. Arias said her mother had written a letter and her father was “fired up” to talk. She said she made a record of that with the court in sealed proceedings. A lot of good it will do her now since the jury hung in the sentencing phase. I doubt if any members of the Arias family will speak in the retrial because like with Pothead Patty Martinez will find too many skeletons in their closets.

  6. Surely, Jodi was checked for competency to stand trial, can they not go a step further right when someone is arrested and find out “what is wrong mentally” with the defendants in such cases? All defendants should be checked and given proper treatment whether it be an antidepressant, anxiety pill, or other meds for whatever it is they are afflicted with. Their problem is NOT an excuse to kill, or do horrible acts to another and they need to be punished, but more important, they need “mental care” just as a person needs medical care for any disease they might have. It irks me to see “alcoholics” go to jail without be treated for their alcoholism, or “drug addicts” with the thinking that “time out” will do the trick, no it does not.

    • I totally agree and it’s important to recognize there are tens of millions (many of them children) who go undiagnosed and untreated who’ve committed no crime. JA was an adult and chose not to deal with her problems as I’m sure her mom suggested. Even if tragic, spending limited resources on a death row/lwop inmate is not justified in my eyes.

  7. Another most interesting article, Dr K., and thank you for such a lucid explanation of Arias’ situation.
    It seems the defense team has no ethics at all, since having character assassinating Travis unmercifully throughout the trial, they now wish to contend that their client is mentally ill. She was mentally competent enough to spend eighteen days in the witness box, or whatever it was, and go jousting with the prosecutor for much of them, while continuing to slaughter her victim remorselessly again at every opportunity.
    It wasn’t so long ago either that she was playing martyr to her sympathisers , professing a desire to die as the ultimate release, but now she is clutching at any straw to avoid it.
    I would agree that all indications are that Arias is mentally competent, though there is one aspect of her which would really concern me – those eyes. I have seen rather similar eyes on a couple of other remorseless killers. They are rather like those of some denizen of the deep waiting to drag you under and devour every last morsel. Actually, Upity’s analogy to a spider watching for a fly is quite apt.
    But then again, we can rest easily knowing that there is no proof of an evil, vicious person, and that she is not a danger to the community. And how do we know this? Well, from no less an authority than the jury foreman himself – though interestingly, he did describe her as delusional.

    • Don,

      If we lost points for typos on this site, I would be the first person who would be in deep trouble. No offense taken at all. Just be glad I’m not Jodi, though. lol.

  8. @Maria

    Well, I see I messed up trying to reply to your post where you question my source for saying LaViolette refused to testify during the mitigation phase. The reply latched onto the wrong post, but you can find it here. Sorry about that. I know it makes no sense out of context with your other post. /facepalm

    • Thanks for posting that video,Linda. I do see where the suggestion that Laviolette might be a mitigation witness seems to have started with Nurmi during that argument. He merged separate things to show a pattern by the judge. But I don’t hear that he’s saying Laviolette is one of the witnesses for mitigation that can’t come. He’s making a record for the appeals court by repeating prior mistrial arguments that were made ex parte to show a pattern by the judge of “endorsing” witness intimidation and an unfair trial for Jodi. This motion relates solely to “a key mitigation witness, Ms. Womack” and he throws in examples from the past of how Laviolette had also in the past been intimidated.

      Judge Stephens denies the motion as to Womack and responds by saying she cannot speculate as to “other possible witnesses” because Nurmi implies without facts that all witnesses would be intimidated because of the environment “endorsed by the court.” But he only names one “a key mitigation witness.”

      On the other hand, even if Nurmi were to say straight out that Laviolette cannot come because of intimidation, he can’t accept the excuse from her and expect the court to give Jodi the benefit of an expert saying she can’t come. It would actually be the basis for mistrial if an expert just quits and cannot be found. But as long as she’s not missing in the Alps, the court has the power to require the expert appear or hold them in contempt (arrest and bring them) rather than grant a mistrial. If it were otherwise, any expert could really help the case by just backing out with no consequences to them. That’s also why Nurmi could replay his argument that Laviolette was intimidated when he first asked for mistrial ex parte but would not now stand and say Laviolette refuses to come for mitigation. Because it does not work that way with an expert who has already participated in the trial and wishes to not continue. The court would issue an order holding her in contempt and/or to bring her in.

      But yeah, I realize Nurmi started this rumor. I just think it’s a rumor.

        • So far as ALV not wanting to testify at the mitigation phase, I agree with @Maria that was a sleight of hand by Nurmi during the hearing. It was my impression ALV originally was supposed to be a mitigation witness and would appear only if Jodi was found guilty, but she then got drafted for the guilt phase instead. I don’t have reliable information as to why that happened (I THINK I heard/read someone else the defense planned to use either pulled out or became unavailable but I’m not sure) but if it’s true ALV wasn’t supposed to appear during the guilt phase, then once ALV had testified, she really wouldn’t have had anything new to say at the penalty phase re: mitigation, would she?

          • You’ve obviously “heard” things that I have not regarding the circumstances leading up to ALV’s testimony in the guilt phase. I do know we heard the name of a Dr. [Carr? Card? Carp?] who did an evaluation but who did not testify. Her report was mentioned a few times during the trial but, for the life of me, I can’t remember who was on the stand at the time or the context of the questions. I did, however, come away with the impression she was hired by the defense.

            But yeah, as I argued in an earlier post, ALV would have had nothing new to say during mitigation — unless she had held something back. LOL

          • Dr. Sheryl Carp was the expert that evaluated Jodi and wrote a report but did not testify. Dr. Janeen DeMarte was questioned about the report by Juan Martinez during the State’s rebuttal case in the guilt phase. Testimony revealed that Jodi reported significantly more instances of abuse to Dr. Carp than she did to Dr. DeMarte and that Carp concluded Jodi had PTSD resulting FROM THE THE ABUSE (i.e. not from killing Travis as Samuels concluded).

            FWIW.

          • There doesn’t seem to be a “reply” button for Linda K’s June 18, 2:06 post but this msg is intended to follow up on that post.

            What I “heard” may have been wrong Linda K, or maybe I “heard” it wrong :) but this link shows that in May 2012—a year before the verdict—the defense gave notice of intent to call ALV during mitigation. That doesn’t mean they didn’t intend to call her also during the guilt phase, of course. But the request from the State for ALV’s notes/file seems to suggest to me that the State didn’t already have her materials in 5/12. But that’s a guess on my part and it may have been defense strategy to make it seem that she was to be called only during mitigation.

            http://www.courtminutes.maricopa.gov/docs/Criminal/052012/m5249880.pdf

          • @lizzie,

            Nice catch on the court document showing ALV was, at least at one time, intended to be a mitigation witness.

            It appears Dr. Cheryl L. Karp (I think I finally have her full name correct here) was hired prior to 6/21/2011 as indicated in this motion to turn over the files of Samuels and Karp to “Janine Demante” [Janeen DeMarte].

            I don’t know where this leaves us… more speculation, I guess? lol

      • LaViolette would rather walk on hot coals than face Juan again. She took a beating on social media and was never going to come back and speak for Jodi. She was a paid expert, and not a good one at that.

  9. Nurmi and Wilmott asked for a postponement to January because of their schedules and they need time to find witnesses for their mitigation phase.

    I doubt if they can find any witnesses that Martinez won’t be able to easily impeach. If Arias’s mother and father testify, all Martinez has to do is play their interrogation tapes. Her mother told Flores she told Jodi she needed help because she kept saying she had a bad childhood and she didn’t. Both parents say she grew pot on their roof when she was in the eighth grade and they called the cops on her. She wasn’t beaten to unconsciousness with a belt, fists or wooden spoon. When she kept sneaking out of the house, she was grounded, not beaten to a pulp. And her parents didn’t drag her home and beat her when she dropped out of high school and moved in with Daryl before she turned 18. They probably were glad to get rid of her. May have been the only time they had peace since the bad seed was born.

    Sandy Arias said Jodi had mental problems and her friends would call and say she needed help. She also said Jodi was falling apart when she lived in Mesa and she tried to get her home so she could take care of her. Her mother even said she asked Arias if she killed Travis and she said no, she wasn’t even in Mesa and had the receipts to prove it. Her mother also said she couldn’t believe her daughter could commit such a horrific murder and appear so normal afterwards. Her father said Arias was strange, obsessed with Travis and wanted to marry him. That all contradicts the testimony of Arias. Samuels and LaViolette who said she was passive and never got angry and was abused by her parents and Travis Alexander.

    I doubt if Samuels or LaViolette will testify again and endure questioning by Martinez after all the public ridicule and outrage they faced the first time. Besides none of the jurors believed a word Samuels or LaViolette said except the foreman. I doubt if a new jury would buy the PTSD and domestic violence nonsense especially after she was already found guilty of first degree murder of an especially cruel murder.

    I doubt if Jodi would allow a real psychologist to give her a real diagnosis.Patty won’t testify because she could go to jail and Daryl only knew her four years and probably never met her parents or Travis Alexander. Her brother has been tweeting that she taped the sex for blackmail purposes. And he advertises on Facebook that he smokes pot. Hardly a credible witness.

  10. Personality disorder does not a severe mental illness make!!.
    Great commentary everyone. Thanks! @Elaine: loved the line about the character witnesses being buried w/the gun. Awesome.

  11. Jodi’s case is eerily similar to the case of Susan Wright who was convicted of second degree murder for stabbing her husband, Jeffrey, more than 200 times and burying his body in the backyard. She was sentenced to 25 years in 2004 in Texas. The prosecutors had charged her with first degree murder and asked for a sentence of 55 years.

    In 2009, the Texas Court of Criminal Appeals granted Wright a new sentencing hearing, after determining that Wright’s “counsel rendered ineffective assistance during the punishment phase of trial” in 2004 because they didn’t call any expert witnesses.

    Wright was a 26 year old topless dancer and mother of two when she murdered her husband who was 34. Like Jodi Arias, Wright testified she stabbed him to death in self defense because of years of physical abuse after he said “Die Bitch.” Prosecutor Kelly Siegler brought the blood soaked mattress into the courtroom and demonstrated that Wright seduced her husband and convinced him to allow her to tie him to the bed and then got on top of him and instead of making love proceeded to stab him over 200 times. They also said she may have drugged him with a rape drug because traces of it was found in his system as well as cocaine.

    Psychologist Jerome Brown, who interviewed Wright days after the killing diagnosed Wright with Post Traumatic Stress Syndrome, and said she was in a “dissociative state” while attempting an elaborate cleanup after the killing.

    Wright’s attorneys in the 2004 trial did not call Brown to testify because they realized the night before he was to testify that Wright had told him her husband was asleep when she stabbed him, which was contrary to the story she told on the stand. But Brown did testify in the retrial of the sentencing phase that she told him her husband was asleep when she retrieved a knife from their kitchen and began to stab him.

    After a two week trial November 20, 2010, Wright was re-sentenced to 20 years in prison, five years less than her original sentence. Barring another appeal, Wright will be eligible for parole on February 28, 2014, after serving only 10 years. She will be 38 years old.

    Arias was hoping to get a plea or verdict of second degree murder and only serve ten years or less.

    • Interestingly, these cases on ineffective assistance for not putting on experts make up one of the theories under which Nurmi tries to get mistrials. He has repeatedly made a record for the appeal that the defense has been rendered “ineffective counsel” because the prosecution is so mean to the experts that the experts cannot effectively present their opinions and that transfers over to the lawyers being rendered ineffective. Got that? The lawyers are deemed ineffective by appeals courts if they are incompetent in the manner in which they chose experts or chose not to put on experts. But this idea that if the experts are intimidated by the prosecutor (for being idiots) this translates into reason for reversal on appeal because it renders counsel ineffective for reasons outside their control is mind-boggling to me. I suppose there must be some Arizona or US Sup Ct case he’s stretching to fit to his proposition.

      Come to think of it, I wonder if not asking an expert to testify in the mitigation phase is intentional for this same reason. I’m just amazed at how dishonest and deliberately obstructionist Nurmi is. Obstructionist is what he is.

      • Maria, I wonder if the state would be ahead if they just take the death penalty off the table with the understanding that Jodi Arias will get LWOP. It worries me that Nurmi is purposely not present any experts in the retrial since Samuels and LaViolette didn’t fool the jury with their obvious bias for his client, ridiculous lies, incompetence and sloppiness. They also made a fool out of him in front of millions of people watching it on TV including attorneys, mental health professionals, PTSD and domestic violence victims and people with common sense who knew they were full of BS. Several experts turned them down the first time. No one can testify she was abused by her parents or Travis without perjurying themselves. Even if the jury sentences her to death without any real witnesses, the courts may reverse the sentence and they’ll have to do it all over again.

        • I ask myself these questions too. It would be a much easier question if they had the same jury who convicted deciding mitigation because then it’s obvious they know what the experts said during the guilt phase and since they’re instructed to consider everything that might be mitigation, including what they heard during the guilt phase, there’s no requirement the experts be called again for mitigation specifically.

          I have no idea if the new jury gets to hear the expert opinions or how the information from the guilt phase is presented, whether its limited to the facts of the murder or if the defense gets to communicate what their defense was. It does seem like a problem although I don’t think she has to put on experts in mitigation if she’s not claiming that a mental illness merits leniency.

          I wonder if now that Judge Stephens has had time to reflect on the surprise Nurmi sprung that day, if she might issue an order to the defense that they must put on witnesses in mitigation in compliance with the law or be held in contempt. Even appellate courts have issued orders to judges in the past requiring that they not allow the defense not to put on witnesses. So I wonder if this is not being played out behind closed doors. I would be very surprised if it isn’t.

          I don’t know if the state gains or loses in taking the death penalty off the table. Sometimes I think they lose in the long run because it sends the message that if you obstruct and play dirty you’ll win by attrition. I’m conflicted on offering her LWOP too bcause she still gets to appeal the underlying conviction. There’s no way to close the door on appeals because she did not plead guilty.

  12. Pingback: Prosecutors Request Judge Deny Defense Request to Delay Retrial

  13. @Maria

    In reply to @stacey you wrote, “In all cases, MITIGATION EVIDENCE IS MANDATED BY LAW.

    Here’s where the effect of the law could be contrary to the intent of the law. I hear what you’re saying, that mitigation always exists. But then always is an absolute. Theoretically, what if a defendant has lead such a despicable life that all reasonable efforts to find mitigation evidence yield nothing useful? Doesn’t that back the attorney into an impossible corner?

    • I don’t think the attorney is placed in any more difficult situation than they are in taking on any case where the evidence is not good. I think one of the policy reasons that appeals courts mandate evidence be put on is that neither the attorney, nor the defendant facing death, should be allowed to prejudge the cause, or prejudge whether mitigation exists. So they must put on evidence from a list of possibilities that could apply to anyone and leave the judgment to the jury.

      As an example, the Night Stalker, Richard Ramirez, the most despicable worthless human being. But an attorney could put on evidence that Ramirez was exposed to severe violence by his uncle who showed him photos of raping and killing women in VietNam when he was only 11 or 13, I forget. Or in Ted Bundy’s case they could put on his mother, an old mother who would be devastated by her son being executed. Or in another case a child who would be scarred knowing a parent was executed. Because the impact on a third party can be mitigation. There’s a general list of those kinds of mitigating factors even for the most worthless human. Doesn’t mean any of that SHOULD merit leniency. It shouldn’t but the lawyer is precluded from deciding it won’t work and giving up.

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