Specializing in the representation of crime victims, women and children.

PORN DEFENSE AND SEXIST MANIPULATION STRATEGY WORKED FOR NOW, BUT JODI “HANNIBAL LECTER” ARIAS MIGHT NOT GET A SIMILARLY NAÏVE JURY THE NEXT TIME

By Wendy Murphy    May. 28, 2013

(Though In The Dirty Business of Death Penalty Politics, The Liberal Ninth Circuit Stands Ready to Spare Jodi’s Life No Matter What Happens)

jodi-arias-sexyI can’t cheer for the death penalty. It feels too much like I’m sitting in the stands at the Roman Coliseum cheering for the Lion.

But I can cheer against mercy for a psychopath who used sex and sexism to manipulate a jury into sparing her life, and whose creepy demeanor reveals a terrifying capacity not only to kill but also to lie with a straight face about whether and why she stabbed a man 29 times, tried to slice off his head, and then shot him in the face for fun.

I’m opposed to the death penalty but I can march in protest against leniency for Jodi Arias even if it means she gets the death penalty – not because I’m a barbarian but because Jodi Arias IS.

An Arizona jury, by a vote of 8 to 4 for death, couldn’t agree to sentence Arias to death for the brutal murder of Travis Alexander, which means a new jury will have to be selected to decide Arias’ fate. The prosecution may well decide that with four votes in favor of life, they might not find twelve people who can agree unanimously that death is appropriate, and if Travis Alexander’s family agrees, the prosecutor can make a deal that would require Arias to remain in prison for the rest of her life.  This would mean Arias forfeiting her right to ask the judge to impose a sentence with a possibility of parole after 25 years, but even if such a deal is made, everyone knows it wouldn’t be enforceable.  Arias could still file endless appeals challenging her conviction and demanding release on parole.

Arias doesn’t deserve a deal because a deal would only reward her bad behavior and manipulation strategies, and indulge all the shady antics of her lawyers who shamelessly hustled the male jurors by exploiting sex and other gender-biased irrelevancies for tactical gain.

This case was always ONLY about the death penalty, as evidenced by the fact that Arias’ lawyers played their hand during trial as if the only thing they cared about was persuading a single male juror to resist voting for death.  Indeed, allowing Arias to testify falsely under oath for eighteen days may have amounted to legal malpractice otherwise.  But they knew that having a cute female defendant talk about oral and anal sex for weeks, and describe how she “bent over” for Travis Alexander, followed by the playing of a recording of Arias engaging in phone sex with the guy until orgasm, would surely, um, stimulate the male jurors to think about all sorts of things OTHER than the near decapitation of an innocent murder victim.

We don’t know yet whether the four jurors who voted to spare Arias’ life were all males, but there’s a good chance it was the guys who felt the strongest about not putting Arias to death, and who can blame them after listening to porn for 18 days?  Asking men to vote for death after 18 days thinking about Arias performing oral sex is too much of a buzz kill in the boxers.

Plus, guys like to protect girls in danger, especially when they dress up like 12 year-old librarians, even if that danger is an appropriate legal judgment of death by lethal injection.

Anyone who kept their erogenous zones in check while watching this five-month saga unfold saw the shtick for what it was from day one.  The only question was whether the male jurors would be smart enough to vote for death notwithstanding their tingly parts.  Now we know, sadly, that the answer is no.  Hopefully a new jury will include a few experts in psychopathy who will have the knowledge and strength to resist Arias’ titillating red herrings during the next sentencing trial, and who can teach the other jurors to recognize manipulation from a female psychopath when they see it.

The judge has scheduled an initial hearing for late June and a new death penalty trial for July. The new jury, thankfully, won’t hear all the evidence from the guilt phase, which means they will be spared most of the pornography, but you can bet Arias will offer up as much sex talk as possible in the hope she can again snooker at least one male juror to vote for life.  She won’t have as much leeway to pad the record with details of every sex act as a way of supporting her false claim of “battered women’s syndrome” because the first jury rejected that lie, but the judge will allow her to testify about certain aspects of her sex life with Travis because Arias’ lawyers will claim that it is relevant to “mitigation.”

The defense has a lot to worry about during round two because the prosecution will no doubt showcase Arias’ lies and manipulation during her post-verdict media interviews.  Arias revealed an especially high degree of psychopathy in those interviews, which the prosecution will argue exposes her as a master manipulator.

Arias may have won a few votes with those lies the first time, but now she has to deal with the mess she made during her media blitz – on top of the brutal nature of the crime and the cunning steps she took to plan the murder and cover it up after the fact. It’s one thing to commit murder in a jealous rage, but it takes a special kind of evil to  continue lying about murder with a cool demeanor, on national television, after a jury finds you guilty.

IT WAS ALL ABOUT THE MALE JURORS

Arias’ attorneys knew they were dealing with a particularly bad human being when they first got involved in the case, which is why they spent so much time trying to change the vibe in the room and distract the jury’s attention away from the gruesome evidence. They knew that getting the jury to stop thinking about Travis Alexander’s nearly decapitated head would be difficult, but there was a good chance male jurors’ emotions could be hijacked if they turned a somber judicial proceeding into the Supreme Court of Pornography.  So they borrowed a page from the OJ Simpson playbook only OJ used racism as a highly stimulating tactical narrative to distract jurors. Arias’ lawyers used porn.

For eighteen days, the jury and the public were subjected to irrelevant nonsense about oral and anal sex that had nothing to do with the crime but created an erotic fog in the room that interfered with the trial’s ugly truth about the murder of a man who was slaughtered to death like an animal.  Arias preened on the stand, wearing just snug-enough shirts to reveal her breast implants, and allowed her hair to drape sensually over her shoulders as she described how she performed all sorts of sex acts.  Any red-blooded male juror would have had to fight hard not to get tingly imagining Jodi bent over moaning while being penetrated.  That same man would struggle to move, emotionally, from very pleasurable sexual fantasies to the ugliness of death by lethal injection.

The men on the jury might have felt differently if Arias had admitted that she was the sexual aggressor who used sex to abuse and control Travis Alexander, and to manipulate him into staying involved in their relationship.  Had Travis been alive to tell the truth about Arias, the jury might have understood more clearly that she is like so many perpetrators of domestic violence who manipulate and control their partners.

Arias doesn’t look the part of a batterer much less a murderer, which makes it difficult for people to accept the prosecution’s narrative.  But while most perpetrators are males, plenty of women engage in domestic abuse against men and kill their partners in retaliation after being rejected. It’s the ultimate exercise of pathological control and true domestic violence to kill someone as a way of saying: “If I can’t have you, nobody can.”

As with many cases of domestic abuse, it took Travis a long time to finally end his relationship with Arias. Evidence suggests the final straw for Travis was in late May, only days before the murder, when he sent an angry email to Arias about something she had done. Some speculate it was related to the audiotape she secretly made of her having phone sex with Travis.  Given her propensity for manipulation, it wouldn’t be surprising to learn that she threatened to send the tape to a leader in the Mormon Church if Travis ever left her.

DESPITE THE SEX TALK, THE JURY GOT GUILT RIGHT

Jurors maintained enough focus to find Arias guilty of premeditated first-degree murder, and they wasted no time finding that the murder was especially cruel. This meant Arias would be put to death so long as the jury also determined that mitigation evidence, if any, was “substantial” enough to diminish the strength of the evidence that justified death.

As judgment day on the ultimate issue grew closer, Arias’ lawyers were near frantic in their efforts to derail court proceedings, no doubt worried that the little mitigation evidence they had to offer was nowhere near substantial enough to justify life rather than death.

Some said the defense became chaotic toward the end because Jodi was trying to control everything and that she was at odds with her attorneys.  Lots of pundits speculated that Arias’ lawyers begged off the case because she refused to take their advice and acted against their wishes by asking for the death penalty in an interview with a local news outlet immediately after the guilty verdict.

If they were at loggerheads, pundits said, her lawyers would have to resign because they could not zealously represent a client who didn’t listen to their advice.

If trial strategies were always what they appear to be, that analysis would make sense. But the far more likely explanation for all the last minute shenanigans is that the defense was very much in control of what was going on, and they were using Jodi as an actor in their shameful play.

By Arias telling the media she wanted to die, the defense had a convenient reason to file a motion to withdraw on the grounds of irremediable conflict.  “We have to withdraw from the case, Your Honor, because she wants to die and we want to fight for her life.”  It was a cool trick because if the motion had been granted, it would have caused a very long delay in the death penalty decision as new attorneys got up to speed on the evidence and were given time to prepare for the sentencing hearing.  Arias clearly did not want to die but she used the media as a pulpit to create the fact pattern the defense needed to try and delay the jury’s verdict.  All lawyers know that the longer the time period between the guilty verdict and the announcement of punishment, the more likely a jury will vote for life rather than death.

Despite the ploy, the judge not only quickly denied the motion to withdraw, she did so rather glibly, no doubt aware that she was watching a tactical maneuver as opposed to a sincere effort to protect Arias’ rights. (An observation born out by the fact that only days later, Arias put on a slideshow for the jury that she used to beg for her life; a presentation that clearly had been in the works for a while.)

Having lost their bid to stop the proceedings, Jodi’s lawyers then opted for Plan B. They told the judge they would refuse to call any mitigation witnesses to testify about why Jodi’s life was worth saving.

Nearly every legal analyst on television exclaimed that this was “very strange” because Arizona law allows family members to take the stand and testify about anything and everything in an effort to persuade a jury to vote against the death penalty.

Jodi Arias’ family was in the courtroom, ready and able to talk about why Arias should be spared the ultimate punishment, but they sat silent. Arias’ attorneys simply refused to call them – or anyone else – to the stand. The only one who offered evidence in mitigation was Jodi Arias herself. She spent nineteen minutes telling the jury that she should receive life rather than death because she could be productive in prison.  Arias said she would teach prisoners to speak Spanish and use sign language, and she would start a book club and a recycling program. She would also regularly donate her hair to an organization that makes wigs for cancer patients.  It all sounded so generous, except that she hadn’t done anything benevolent BEFORE she landed in jail and needed to develop a list of reasons for a jury to spare her life.

The jury had to notice that she offered to take up causes that just happened to match up with issues that were emotionally salient to them. For example, she promised to teach sign language to prisoners and one of the jurors openly used a special headset in court because he is hard of hearing.  And because eight of the jurors are males, it was no surprise that Arias showed them a painting she’d done of Frank Sinatra when talking about her artwork. And who doesn’t have a friend or loved one who lost their hair during a bout with cancer?  Arias admitted in subsequent interviews that she intentionally came up with project ideas in order to manipulate jurors by appealing to their specific interests.

The slide show was offensive propaganda, made worse by Arias’ demeanor and voice because her affect was the same as when she coolly testified, falsely, about shooting Travis Alexander in the face in self-defense.  If a person can lie with a straight face about murder, they can lie with a straight face about wanting to help humanity.

The most vile move during Arias’ dog and pony show was her arrogant display of a T-shirt with the word “Survivor” on it; a shirt she said she “designed” and would sell in order to raise money for “other” victims of domestic violence.  She admonished the jury that some of them might not believe she was a real “victim” but she didn’t care.  And she showed no concern for the pain she was inflicting on Travis Alexander’s family when she called herself a “survivor,” knowing that Travis Alexander did NOT survive her domestic violence against him.

STRATEGY IS ONE THING, BUT WHAT ABOUT ETHICS?

It isn’t necessarily wrong for convicted murderers and defense attorneys to try desperate tricks in an effort to avoid the death penalty, but reasonable people want to know why Arias wasn’t advised by her lawyers to simply apologize.  Why didn’t she just walk toward the jury – no slideshow – no papers in hand – no planned speech – just honest, from the heart words about why Arias is deeply sorry not only for killing Travis Alexander, but also for lying to everyone – including the jury – about what really happened.  She could have said she was remorseful and that she deserves to die but that forgiveness is important. She could have gotten on her knees, sobbing, and said, “Please forgive me” and left it at that. But she didn’t – probably because as a psychopath she doesn’t have it in her.  A person with no conscience is exactly the type who should be put to death but it’s hard for jurors to believe that any human being, much less a pretty young woman who says words like “edify,” has no capacity for human emotion.

Arias also told the media that she tried to avoid the trial altogether – by offering to plead guilty to murder in exchange for prosecutors taking the death penalty off the table, but her offer was rejected.  Put another way, she blamed the prosecutor’s refusal to give her a sentence she did not deserve for why she smeared Travis Alexander’s reputation during trial. In fact, she boasted about how she effectively tried to extort the prosecutor by threatening to falsely accuse Travis Alexander of being a pedophile if her request for a plea bargain was denied.  She also said she had no choice but to answer the questions that were asked of her, as if her lawyers had no power NOT to ask her the questions that prompted her to lie about Travis Alexander having a sexual interest in little boys. Arias literally blamed everyone but herself for the fact that she “exposed” Travis Alexander’s hypocrisy by testifying that he engaged in behaviors that conflicted with his Mormon values.

Arias spent most of her fifteen minutes (oops, five years) of fame lying, blaming others for her evil ways, and calling people hypocrites.  She never once mentioned her own hypocrisy or the hypocrisy of her lawyers who claimed, on the one hand, that Arias had “no mitigating factors” but then refused to call her family members to testify as mitigation witnesses, while helping her create a slideshow demonstrating all the “mitigating” things they could think of.

THE NINTH CIRCUIT TO THE RESCUE

Arias’ deafening silence about her parents and siblings not taking the stand on her behalf was no doubt because she knew damn well that the decision to keep them silent was a strategic legal maneuver.  Like all the tactical decisions throughout the case, keeping them off the stand was part of a tactical plan to spare her life no matter the truth and irrespective of how much harm she caused to Travis Alexander’s dignity or his family’s well-being, and no matter how much damage she did to the public interest or the integrity of law itself.

Indeed, in the law review article cited at the end of this piece, the author writes in detail about how and why defense attorneys should be sanctioned for unethical strategies that undermine the public’s respect for our legal system.  The article explains in detail how lawyers 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 at the time of sentencing so they can use the error to win a reversal of the death penalty on appeal.

The most striking observation the author makes is that the Ninth Circuit Court of Appeals, which will ultimately decide the constitutionality of the verdict in Arias’ case if she is sentenced to death, has overturned the death penalty in no less than thirteen cases in the past decade alone based on defense counsel intentionally committing ineffective assistance of counsel by failing to put on mitigation evidence during the sentencing hearing.

If that was the plan in Arias’ case, then all the pundits were wrong when they said it was “strange” that the defense attorneys didn’t call Jodi Arias’ family members and friends to testify about mitigation evidence.  It wasn’t “strange,” it was strategic, some would say unethical, but it had nothing to do with the witnesses being threatened or afraid to testify for fear of what might be brought up during cross-examination.

Arias’ lawyers hedged their bets, knowing that even if Jodi’s entire family and all her childhood friends took the stand and begged for her life, the jury would still vote for death simply because no amount of mitigation evidence would make a dent in the mountain of reasons that justify imposition of the ultimate punishment.

By refusing to put Arias’ friends and family on the stand, defense attorneys knew they might lose the battle but would likely win the war if the jury voted for death. The Ninth Circuit’s predisposition to reverse death penalty verdicts when mitigation witnesses are not called was a near guarantee that Arias would never be put to death.  This remains a viable strategic option given that a new jury will be impaneled to decide the death penalty issue in July, which means we can expect Arias’ family members again to sit silent instead of begging for Jodi’s life.  Perhaps the prosecutor should consider calling Jodi’s mother to the stand, if only to expose the strategy and create a record that would at least make it more difficult for the Ninth Circuit to indulge the nonsense.

Refusing to call mitigation witnesses may eventually save Jodi Arias’ life, but the author of the article below notes that it isn’t ethical.  The recent evolution of this ugly strategy has inspired legal scholars to urge that such lawyers be reported to the bar and sanctioned for the unethical practice of law, though since defense attorneys control most licensing boards, don’t hold your breath.  Chances are much better lawyers who pull this stunt will win awards because in the American legal system, a lack of ethics in criminal defense work isn’t punished so long as the ends justify the means.  Which begs an important question for the rest of us:  Is saving one psychopath’s life really worth the loss of integrity for an entire legal system, and who do we hold accountable if the answer is “no?”

Read: Tactical Ineffective Assistance in Capital Trials

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