As Jodi Arias got closer to judgment day on the death penalty decision, her lawyers seemed near frantic in their efforts to derail court proceedings. Some said it was chaotic because Jodi was at odds with her attorneys and that they begged off the case because she refused to take their advice. Maybe she wanted to ask for death but her lawyers wanted to save her life. If they were at loggerheads, new lawyers would have to be assigned.
If trial strategies were always what they appear to be, that explanation might make sense. But the far more likely explanation for all the last minute hysterics is that the defense lawyers simply wanted to cause a delay because the longer the time period between the guilty verdict and punishment, the more likely a jury will vote for life, which is why it was no surprise that the judge not only quickly denied all the defense requests to assign new counsel, she did so rather glibly, no doubt aware that she was watching tactical maneuvers as opposed to sincere efforts to protect Jodi’s rights.
An emergency appeal on the same grounds was also denied, as is common given the tendency of all defense attorneys to file such motions on the eve of a jury’s vote to determine whether a defendant will live or die.
It isn’t necessarily wrong for defense attorneys to try these sorts of desperate tricks, but some argue that tactics aimed at creating errors on purpose should be prohibited and that judges should report such actions to attorneys’ ethical oversight boards.
The following law review article explains in detail why defense attorneys in death penalty cases go out of their way, especially in cases like Jodi Arias’ where the evidence is overwhelming, to intentionally commit ineffective assistance of counsel errors and cause intentional mistakes, particularly at the time of sentencing in a death penalty case.
The article cites no less than thirteen cases in the past decade alone where the Ninth Circuit Court of Appeals, which will ultimately decide the constitutionality of Arias’ conviction, overturned the death penalty because of defense attorneys who intentionally engaged in ineffective assistance of counsel by failing to investigate or put on evidence of mitigation during the penalty phase.
Jodi Arias’ attorney reportedly told her she had “no” mitigation evidence and indeed, no mitigation witnesses were called (such as Jodi’s mother and sister). This was not likely, as some speculated, because Jodi didn’t want her mother or sister to testify but rather, was a strategic decision aimed at getting the death penalty overturned when the case eventually makes its way to the Ninth Circuit.