Dear Juan Martinez;
You did a bang-up job during the first trial and nothing about your handling of the case against Jodi Arias led to the absurd result that has you now preparing for another mini-trial on the death penalty issue. As an experienced prosecutor, you know that certain defense tactics make it hard for jurors to use their common sense. The “sex fog” defense strategy effectively made it impossible for especially male jurors to think straight amidst all the pornography that Arias forced on you, jurors and an entire nation for weeks.
I hope and expect you are anticipating that Jodi Arias will once again use her manipulative sex talk to dupe especially male jurors into sparing her life during the upcoming sentencing hearing.
I assume you are planning to proactively address the porn strategy by carefully screening out jurors who might be vulnerable to such a manipulative ploy, and that you will take extra steps to ensure that males who ARE chosen to sit as jurors will adequately be able to resist Arias’ Siren-esque tactic and assess the punishment question objectively; free from eroticized feelings in their boxer shorts.
To that end, I offer the following advice:
1. Use a mental health expert to explain to jurors that Arias’ sexual activities with Travis Alexander were not pleasurable, but rather, were manipulative and sadistic. I’m not talking about sadism in the kinky and sometimes enjoyable sense as when regular non-murderous people enjoy fantasies by dressing in leather and using handcuffs, etc. I’m talking about the sadistic way Arias used Travis Alexander’s desire for sexual pleasure to manipulate, control and corrupt his psychological health. In other words, turn the sex-angle to your advantage by showing that the kind of “pleasure” Travis Alexander was seeking was not the pleasure Jodi Arias was giving. Compare Arias using sex to the way a kidnapper uses a puppy to lure a child into a van. A child will be highly emotionally attracted to the puppy, but will have no idea that following the puppy will lead to danger. Similarly, Travis Alexander may have been erotically drawn to Jodi Arias because of his desire for sexual arousal, but he had no way of knowing that she was using sex to lure him into an evil trap from which he would never escape alive.
2. Make the sex stuff as ugly as possible. For all that Arias talks about that makes the sex with Travis Alexander seem steamy and delightful, find a way to kill that buzz with the jury – especially the guys. For example, just as you hounded Arias when she was fake crying on the stand – and you firmly asked questions such as “were you crying when you slit his throat,” use the same strategy with the infamous audio tape she secretly made of an erotic conversation between herself and Travis. Repeat each sentence from the tape and ask whether that portion of the conversation was recorded so that she could use it to threaten to expose Travis – especially with Church elders – if he ever left her. Your voice speaking the words from the tape will help diminish the sexual nature of the recording, and you connecting the erotic moments to extortion will help to further neutralize the distracting and titillating effect of the sex talk on jurors.
3. Take the time to repeat your point so you can make sure the sex stuff seems especially ugly and disgusting rather than erotic. For instance, you could say, “during the time you recorded him saying he fantasized about tying you to a tree, did you tell him you were using sex to manipulate him into staying with you?” “Did you tell him you would slit his throat if he broke up with you?” And, “during the time you say he rolled over in bed and had sex with you while you were sleeping, did you tell him you were using sex to control his life and prevent him from leaving you?”
4. Point out for the jury that such extortion would make ANY decent person lash out with anger the way Travis did toward Arias right before he was slaughtered. The jury needs to understand that no matter how much momentary pleasure Travis got from certain sexual incidents with Arias, the sex was NOT actually enjoyable because it was part of a ploy to manipulate and control a young man who had no idea of Arias’ capacity for evil.
5. Ask Arias questions that make the erotic moments feel downright painful to jurors. For example, you could say, “you were so desperate to keep Travis in your life, you had anal and oral sex knowing that it could give both of you fecal infections of the throat and genitalia.”
It’s tough to cleanse the courtroom of erotic emotions when witnesses are allowed to hijack the trial and turn a simple courtroom proceeding into a pornified dog and pony show – but you have to try, Juan, because it’s one thing for a murderer to manipulate her victim; it’s another thing altogether for a vicious killer to dupe an entire legal system into producing an unjust result.
On another note, I’m sure you’re aware that defense lawyers in capital cases are known for intentionally refusing to call mitigation witnesses so that if the jury votes for death, they can be assured a reversal of that ruling on the grounds of ineffective assistance of counsel when the case reaches a federal appellate court. The Ninth Circuit, which covers Arizona, has a long history of overturning death penalty verdicts on the grounds that defense attorneys were “ineffective” when they failed to call sufficient mitigation witnesses during the death penally hearing. Referred to as “tactical ineffective assistance of counsel,” Arias’ lawyers are apparently using a similar tactic in your case. They know they may well prevail with the sex-talk strategy, but if they fail, they will win at the NInth Circuit only if they refuse to call sufficient witnesses to testify about mitigation evidence.
To combat this strategy, you should consider calling Arias’ mother and others to the stand so you can ask them to provide “any and all” information the jury should know about that mitigates against imposing a punishment of death.
Your job is not only to win, but also to do justice, which means making sure Arias’ lawyers do not intentionally refuse to call obvious mitigation witnesses as a way of setting up a verdict of death for reversal on appeal. Justice in this case demands that the ultimate punishment be imposed, but the decision should be reached fairly. This means jurors should be apprised of any and all mitigation evidence whether or not Arias’ lawyers have an agenda and don’t want jurors to hear it.
No doubt jurors will still vote for death even if they hear from Arias’ mother that Jodi was a lovely child etc., blah blah blah. It’s your job to ensure that jurors hear as much mitigation evidence as possible not only to protect the verdict but also to preserve the integrity of our legal system as a whole.