Jodi Arias Trial: Arizona Death Penalty Law and Mitigating Circumstances

 As readers know, Terry Lenamon is a nationally known expert in mitigation trial work on death penalty cases.  For those watching the media coverage of the Arias' case, the work to which Terry has dedicated his life is exemplified in the stage that this trial entered when the jury verdict returned with a guilty verdict.  

Here are some reference materials that those following the Jodi Arias' trial as it enters the sentencing phase may find helpful.

Jodi Arias is scheduled to take the stand on Monday as her mitigation counsel puts on their case for why the jury should exclude capital punishment for her in the death of Travis Alexander 

For those following along with the media coverage next week:

The Arizona Legislature has passed legislation (A.R.S. § 13-751) that requires two things to be found by the jury before a person can be sentenced to death in that state:

1.  proof beyond a reasonable doubt of at least one aggravating circumstance as set forth in Arizona law (A.R.S. § 13-751(F): read that law here) and

2.  finding that there are "no mitigating circumstances sufficiently substantial to call for leniency.” Mitigation is defined as evidence relevant to “any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense."  (A.R.S. § 13-751(E): read that law here.).

The Arizona Supreme Court has published its Capital Sentencing Guide online and further information is provided there, including a discussion of case law pertaining to mitigating circumstances in death penalty sentencing trials.

Both the statute and the court opinions discussing and ruling upon mitigation will be applicable to the mitigation case presented by the defense team.  

New York Times Begins New Year With Editorial Against the Death Penalty

The New York Times began 2013 with an editorial published today that details the reasons for its public stance against capital punishment in America.  

You can read the editorial here. 



Florida Killings May Be Solved Through This Week's Exhumation of In Cold Blood's Percy Smith and Richard Hickock for DNA Testing of Skeletal Remains

 Most folk interested in the death penalty, whether they are for or against capital punishment, have read the non-fiction novel by Truman Capote, In Cold Blood, or seen the film based upon that book which starred Robert Blake and Scott Wilson as the two men executed by the State of Kansas for the killings of the Clutter family back in 1959.  

Most people know that Perry Smith and Richard Hickock were sentenced to death by hanging for the killing of an entire family in their rural family home but not as many people are aware that after the Kansas crime, the two men left Kansas and roamed the country -- including stints in Nevada and Florida.

Which means that it is very possible that Smith and Hickock were in the State of Florida at the time of another set of homicides close to Miami: that of the Walker family, crimes that have remained unsolved even today.

Through a set of facts tying Smith and Hickock to the Walker homicides that has been deemed sufficient to support a court order allowing exhumation of their bodies, the two In Cold Blood killers may now be tied by DNA evidence to the Walker homicides as well.

For details, read the continuing coverage at the Huffington Post or the Miami Herald.  The bodies were exhumed yesterday and DNA testing has already begun.  It's not clear when any results or findings will be announced.  


This New York Times Editorial - "There is No Humane Execution" Should Be Required Reading For Everyone. Yes, Everyone.

This past Sunday, the New York Times responded to the horrific execution of Ken Biros by the State of Ohio last week.  Yes, where Biros was killed in the same way that your vet euthanizes dogs and cats.  Yes, where Ohio ran ahead and used a new method of execution that hasn't been vetted, allowing Biros to be a human guinea pig.

In a succinct, well-written opinion piece, the New York Times shares in the horror of what Ohio has done.  From its offices in Manhattan, the Times states it plainly:  "There is no Humane Execution." 

Of course, the editorial has its critics.  At Sentencing Law & Policy, for example, the New York Times piece is challenged -- most interestingly, for its suggestion that the Texas case of Cameron Todd Williamham is a fluke:  

"Finally, as serious students of the death penalty know, the Willingham case is the closest we've gotten to a clear showing an innocent person may have been executed; to suggest that a large number of innocent people have quite likely been put to death is especially misguided."

Really?  Currently on Death Row, a number of men set waiting to be executed, and the Innocence Project is monitoring this list.  Surely we're not to wait until they are killed before we have enough justification to stop capital punishment in this country. 

From our post dated 09/11/09, here are the names of the innocent setting on Death Row per the Innocence Project as of that day - visit our earlier post for links to each man's individual story, as told by the IP:

Kirk Bloodsworth

Rolando Cruz

Alejandro Hernandez

Verneal Jimerson

Dennis Williams

Robert Miller

Ron Williamson

Ronald Jones

Earl Washington

Frank Lee Smith

Charles Irvin Fain

Ray Krone

Nicholas Yarris

Ryan Matthews

Curtis McCarty

Kennedy Brewer

Michael Blair

I'm On Nancy Grace Tonight

Tonight, I will once again be questioned by Nancy Grace on recent issues developing in the Casey Anthony case.  For my position on the news of Andrea Lyons joining the Anthony defense team, check out today's Orlando Sentinel: 

I've Been Invited to Be on Issues with Jane Velez-Mitchell Tonight

I've been invited to be on Issues with Jane Velez-Mitchell tonight.

I consider it a privilege to be asked to participate on a show of this quality and I look forward to tonight's discussion. Jane Velez-Mitchell is a formidable talent and it's an honor to be on her program.

Nancy Grace Program Change: Tomorrow, Not Today

Just a brief update: I will appear on Nancy Grace tomorrow night, Tuesday May 12, 2009, not today, as originally scheduled.

I've Been Invited Back to Talk with Nancy Grace

I'm honored to report that I'll be returning to the Nancy Grace Show this Monday, May 11, 2009. It is always a privilege to be asked by Nancy Grace to participate in her cutting-edge dialogue, and I look forward to the opportunity.

Please Check Out My Op-Ed Piece in Today's Orlando Sentinel

I have written an article concerning the impact of media coverage on our constitutional rights to a fair trial - and the presumption of innocence, which appears today in both the print and web versions of the Orlando Sentinel.

It is entitled "Media zap right to fair trial: To wit, Casey Anthony et al. " and you can read it here.

I welcome your thoughts and opinions.

Five Questions to Ask Yourself about the Casey Anthony Case

1. In your jurisdiction, if you are charged with a state crime, will the state's discovery in your case be accessible as a public record, like the "document dumps" made famous in the Casey Anthony case?

2. In your jurisdiction, if you or a family member is charged with a state crime, what are your protections against people going through your trash and demonstrating in front of your home 24/7, as occurred at the Anthony family home after Casey Anthony was arrested on charges of filicide?

3. If you are interviewed by the local authorities, are you being videotaped? Is that videotape available to the media? In the Anthony case, interviews were videotaped and those videotapes have been provided to the media.

Continue Reading...

I'm Setting Up Rules for Published Comments to the Blog

When I checked my blog this morning, I was surprised to find a large number of responses to my posts. I was also pleased to find that the majority of the posts were thoughtful, measured, and reasoned responses.

Predictably, a number of responses were in regard to the Casey Anthony case. Although this case has touched deep emotions in those who follow it, this blog is not, and cannot be, about any Anthony family members. There are many good forums out there for that topic. This is not one of them.

This blog will talk about recent events and cases in the context of the death penalty. Hopefully, this blog will be a resource for you on capital punishment. This topic has ramifications at many levels in our lives: legal, moral, religious, social, and psychological. We can learn from each other as well as recent cases. There is more than enough to explore in these areas.

That said, here are the rules for getting your comments posted in the blog.

1. First, no responses that proclaim the innocence or guilt of an accused party will be published. That is not our job. It is ultimately the job of twelve good citizens who are willing to undertake that task.

2. Second, no comments speculating about evidence is likely to be published. Evidence is not the latest news report. It is not our job to determine what is evidence. That task is at the discretion of the trial judge, subject to codes such as the Florida Rules of Evidence or the Federal Rules of Evidence.

3. Third, off topic posts will not be published. Assuredly, there are blogs out there in the blog-o-sphere on those topics. Please post to them.

4. Finally, critical comments will be published but no responses containing pejorative comments about other posters, lawyers, judges, public figures, etc. are likely to be posted. This topic deserves critical thinking. Please give it the dignity and depth of thought that it deserves.

Responding to the Comments

I will make every effort to respond to comments promptly. However, I am an active trial lawyer with a family deserving of my time, as well. I hope to turnaround responses to comments within 24 to 48 hours - with the caveat that if I am traveling or in trial, that time frame will have to bend.

Lastly, thank you for reading and participating in this blog.

When I was on Nancy Grace last week, talking about the Casey Anthony case....

First of all, let me just take this opportunity to say that I'm always honored to be invited to appear on the Nancy Grace show. Nancy Grace is a true star of the airwaves today, and a heroine to many. It's very humbling to be appearing before millions in one of those little rectangular talking-head cameo boxes on screen, along with Sue Moss and the rest of the lawyers. I was proud to have been invited once and I'm always thrilled to be asked back again.

And, no - Nancy and I don't agree on many things. Respecting your colleagues doesn't mean you necessarily see eye to eye with them. This is especially true among attorneys, and exceedingly true among the criminal bar. Prosecutors and defense attorneys may fight viciously in the courtroom, but we'll shake hands in the hallway. You know a good lawyer when you see one, even if they're on the other side.

Now, back to the Casey Anthony case ....
Last week, I was on the Nancy Grace show for a couple of nights, because Nancy was talking about the death penalty as it applies in the Casey Anthony matter. Specifically, the fact that the prosecution had taken the death penalty off the table in the Casey Anthony case and Nancy Grace's arguments that the "tot mom" should have a jury decide whether or not the death penalty should apply to her.
Now, before this goes any further let me reiterate: I will not discuss the Casey Anthony case, itself, in any detail or particular. As the attorney who represented Casey Anthony in the death penalty discussions with the Florida state attorney's office, I cannot do that - it violates my work product privilege, attorney-client privilege ... well, you get the idea.
That doesn't mean that I can't discuss generalities, and the law regarding the death penalty today. And with that caveat, there are lots of lessons popping up in the Casey Anthony matter.

The Casey Anthony case - it's revealing many things. Here's one.
One lesson that I'm learning from all this media coverage of the Casey Anthony case is this: the need to know WHY -- why did a beautiful baby, Caylee Anthony, die? Why ... why...why? A hundred questions come to mind.
Well, in all this questioning and need to understand, there's a great many people that are looking at judgment. And that's good. Our society, as with all successful societies, must have rules and judgments that are assessed against those who break those rules. Without this basic structure, we'd live in chaos.
But along with judgment, there must come mercy. At least, in America, we believe in the consideration of mercy before the imposition of judgment.
That is why we have things like probation and parole and personal recognizance. Mercy.
Mercy is my job.
That's my focus, it's the raison d'être of my practice. Death penalty considerations come in the sentencing phase of a defendant's case. Whether or not to impose the death penalty is a decision made only after the defendant has been found guilty of the specific charges that bring with them the possibility of capital punishment.
Judgment and Mercy

In the Casey Anthony case, there's a tremendous amount of airtime and forum group time (think Websleuths) with energies being placed upon judgment.
I'm not seeing much on mercy. Are there considerations that may explain and mitigate this woman IF (and that's right: IF) she did the crime of which she has been accused?
Journalists are taught that to get the whole story, you must ask "who, what, where, when, why, and how."

In the Casey Anthony case, I'm not hearing many people asking that question WHY.
And, to me, that's the most important question. Why. Why did this death happen? Because that's the real answer we all want to know, I think, in any crime. And, because that's where mercy is found.

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