Thursday, May 9, 2013
Today I am featuring my better half, Crane Station, who posted the following comment to my article today explaining what happens at a penalty phase in a death penalty trial.
Just wanted to say that I think it is way too soon and premature to put a lot of stock in the initial interview with Jodi Arias. I am not sure if she is wanting to be a volunteer or not, in other words. It seems very odd that she said these things, without 1.) checking with and discussing with her family and 2) her lawyers. Just within moments of the verdict she says this; it may or may not be what her wishes are after consideration.
Other thing, did her lawyers leave the courthouse without speaking to her? Thing is, they still represent her. Even if they don’t like her, they have certain duties, and if they cannot do things in their client’s best interest, should they not withdraw? IANAL, but if I were hers, she would not have given that interview. Don’t get me wrong, I think the crime was egregious. But this is a different issue.
Begs the ethical question and dilemma in general: Client is convicted. Sentence is either LWOP or death. Client wants to ask the jury for death. Does the lawyer continue to represent the client, and argue to the jury for death?
SHORT ANSWER: I do not believe the judge would permit counsel to withdraw, assuming they attempted to do so, because that would require a lengthy continuance and appointment of new counsel.
Apparently there was a brief hearing today that was closed to the public. The record has been sealed and no one is talking about what happened. Sounds like a gag order.
I suspect it had to do with the Arias interview and what to do about it.
The events today make Crane Station’s question even more relevant.
The Eligibility Hearing, or aggravation hearing as it is commonly called, has been continued to next Wednesday, May 15th at 10 am PDT.
Most people who are convicted of a death penalty eligible crime fall off the edge of the world into a depression that is deeper, darker and more hopeless than anything they have experienced or imagined. They simply cannot cope with it and there is no one to whom they can turn for a kind thought or a hug, except the lawyer.
They want to die and they want to die now, but even if they beg to be sentenced to death, the jury grants their request, and they refuse to appeal, it still takes at least a year before the execution date finally arrives.
The day to day countdown toward the at-first distant execution date and the horrific formal, impersonal and antiseptic ritual of the 24-hour countdown is a form of torture beyond description.
They are not thinking about that when they first say they would prefer death over life without parole. Once sentenced to death, the sentence cannot be undone, unless the appeal is successful. This rarely happens.
Experience has taught us that most volunteers, as we call them, eventually change their minds no matter how certain they may have been.
Jodi Arias’s lawyers left the building after the verdict and that is not acceptable because that is a time when the client is most vulnerable.
According to the reporter she contacted, she reached out to him before the verdict and told him that she wanted to talk to him immediately after the verdict. He met her in the salleyport and interviewed her in front of eight burly guards.
He did not contact or attempt to contact her lawyers to get permission. For the record, I don’t believe he was required to do that, but I think he should have at least let them know about it beforehand so that they could have attempted to persuade her not to do it.
The lawyers have apparently lost control over her and I am not a bit surprised.
Serving life without possibility of parole is not something that most people would look forward to, but there are opportunities for self-improvement and to form strong mutually supporting relationships with others in the same situation. This is why many volunteers change their minds.
Unless her lawyers plan to ask the jury to sentence her to death, which I do not believe any responsible and ethical death penalty lawyer should do, they now have a problem because there is a substantial likelihood that she will be asking for death when they ask the jury to spare her life.
Frankly, I do not believe they acted responsibly or in the client’s best interests when they basically abandoned her after the verdict was announced. That shows not only an appalling lack of concern about her emotional and mental state, it constituted and an abandonment of the lawyer’s duty to look after the best interests of the client by reviewing the penalty phase procedures scheduled for the following day. If they had done this, they probably would have prevented the interview.
By their inaction, they have created an un-ringing the bell problem.
The issue of whether to honor the client’s request and advocate for the death penalty when there is so much evidence that defendants change their minds is hotly debated among death penalty lawyers. I would never do it under any circumstances.
I decided to be a death penalty lawyer to save lives. Enabling an extremely depressed person to commit suicide by death sentence is not acceptable to me.
Those who will do it constitute a very small minority and unwelcome part of our tribe.
I saw a lawyer do that in Washington State despite having amassed a substantial amount of mitigating evidence, including evidence of brain damage that caused him to suffer from obsessive compulsive disorder and an inability to control his anger through rational thought. When he lost his temper, he literally could not stop short of violence.
The lawyer was a fellow member of the Death Penalty Committee of the Washington Association of Criminal Defense Lawyers. We were aghast when he informed us that he had decided to ask the jury to kill his client, despite the powerful mitigation evidence that we believed would cause a jury to spare his life.
We tried but could not dissuade him. We even attempted to intervene in the trial as a friend of the Court to inform the jury about the mitigating evidence so that they would not be deprived of a complete an accurate picture of the defendant before sentencing him.
We argued that the jury had a right to know the truth before sentencing a man to death, but the trial judge refused to let us intervene.
We appealed to the State Supreme Court, but they refused to consider our appeal.
The jury sentenced the defendant to death and he refused to appeal. After a brief and summary review of the trial and the voluntariness of the defendant’s decision to ask for a death sentence, the State Supreme Court affirmed the conviction and death sentence.
The State Supreme Court refused to review or consider whether defense counsel’s refusal to present mitigation evidence and his advocacy for the death penalty constituted ineffective assistance of counsel in violation of the the 6th Amendment.
I never spoke to that lawyer again and he never attended another meeting.