As the penalty phase of the Jodi Arias trial began on Thursday, jurors might find themselves considering more than just the question of how heinous her crime was and whether mitigating factors should weigh against the death penalty.
They might also be wrestling with whether life in prison or the death penalty is the most fitting punishment for a convicted murderer who said in a Fox News interview last week that “death is the ultimate freedom, and I’d rather have my freedom as soon as I can get it.”
Jurors aren’t supposed to watch news coverage of the case, but experts say such information often filters in. The Arias jury was not sequestered.
“If the law were followed in black-letter form with no human element attached, the jurors would have to consider only evidence in aggravation of the murder ... [and] any relevant evidence in mitigation of punishment,” but if they hear about her statement, “it couldn’t be totally expunged from their thinking,” says James Acker, a death-penalty expert and professor at the University at Albany, State University of New York.
Perhaps she spoke in the heat of the moment after being convicted and will present a very different view when she speaks to the jury, which defense lawyer Kirk Nurmi said she would. He told the jury Thursday that they should grant her mercy and consider factors such as her lack of a criminal record, her age, and her artistic talent.
On the other hand, having not believed her defense during trial, jurors might hesitate to take anything she says at face value, says Michael Rushford, president and CEO of the Criminal Justice Legal Foundation, a pro-death penalty group in Sacramento, Calif.
“She may be playing with the system: We’ve seen that from condemned murderers,” he says. “She may well get what she asked for, and it may not be really what she really wanted.”
Ms. Arias’s statement could have complicated the job of her defense team.
The judge denied a request by her attorneys to step down from the case during a closed-door meeting Tuesday, the Associated Press reports, citing court minutes. The AP also cited legal sources explaining that it would not be unusual for defense attorneys to disclose to a judge that the defendant was doing something in conflict with their efforts to persuade jurors not to impose the death penalty.
These latest twists in a case that has played out in gruesome and salacious detail in the media also serve as a reminder that questions about justice and fitting punishment are largely subjective, and jurors in capital cases have a difficult job in deciding if someone should be put to death.
Arias was placed on suicide watch last week, but on Monday she returned to a Phoenix jail for the remainder of her trial.
There is “irony” in the fact that “it is not unprecedented for individuals under sentence of death to attempt suicide, and heroic measures are taken to save their lives so they can be executed,” Professor Acker says.
In the first modern-era execution, Gary Gilmore was put to death by firing squad in 1977 for multiple murders. He had relinquished all appeals, attempted suicide, and then was treated so he’d survive for his execution, before which he famously said, “Let’s do it.”
“The state ... insists on its prerogative to carry out the lawful judgment of death,” Acker says.
Prosecutors seeking the death penalty tend to probe not only if potential jurors are willing to consider that penalty, but also their attitudes about life in prison versus the death penalty, Acker says.
Sixty-three percent of the American public supported the death penalty for murderers in a 2012 Gallup poll.
“We know from interviewing well over 1,000 jurors that they act in very unpredictable and arbitrary ways, and in violation of what the Constitution says they should do,” says William Bowers, senior researcher of the Capital Jury Project based at the University at Albany.
Sometimes jurors are influenced by whether they think a defendant would pose a danger within the prison, or if he or she managed to escape. Other times they lean toward life in prison if the defendant seems remorseful, which can tilt the system toward white, middle-class defendants who know better how to come across that way to a jury, Dr. Bowers says.
For the death penalty to be imposed, all the jurors must agree. If they can’t agree on a penalty, a new jury is impaneled to hear the penalty phase, and if the second jury can’t agree, the judge must impose life in prison without parole, Acker says.
Maricopa County, Ariz., where Arias is being tried, ranks 11th among US counties for the most executions since 1976 (11 of them), according to the Death Penalty Information Center in Washington. It’s fourth in terms of the number of inmates on death row, 81. In all of Arizona, 125 people are on death row, three of them women.
Nationally, inmates spend an average of 14.5 years on death row, though it can be much longer – or shorter if they relinquish appeals, which about 11 percent do, Acker says.
Arias was convicted of killing a man she had dated, Travis Alexander, inflicting at least 30 knife wounds and shooting him. Prosecutors called his family members to the stand during the penalty phase Thursday.
If Arias is sentenced to death, there will probably be a round of appeals, but the delays common in some other states because of debates over the method of execution would not be as likely in Arizona, says Mr. Rushford. In Arizona, a single drug is used for lethal injection rather than a three-drug protocol that has met stiffer court challenges, he says.
• Material from the Associated Press was used in this report.