Why the Jordan Davis murder was not a death-penalty case and update on Jodi Arias

October 2, 2014

Thursday, October 2, 2014

Good morning:

Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.

It is not a death-penalty case.

The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.

For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.

Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.

Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.

The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:

The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.

Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.

The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.

The effort to select a jury continues today.

Unfortunately, there is no television or live-stream coverage.

If you like what we do, please consider making a donation.

Thank you.


The Difference Between Homicide And Murder

October 23, 2011

Although states vary in their definitions, the majority of states define homicide is the unlawful killing of a human being. Killing a person in self-defense is a lawful killing of another person. Therefore, it is not a homicide.

There are four degrees of homicide which vary according to the actor’s state of mind when he or she commits an act that causes the death of another person. The four degrees of homicide are:

1. Murder in the First Degree (premeditated intent to kill another person). Note that premeditation is defined as forming the specific intent to kill before committing the act that causes the death of another person. There is no established minimum amount of time, but the actor must have had an opportunity to reflect on the decision to kill before committing the act that causes death.

2. Murder in the Second Degree (intentional murder). In effect, the actor forms the specific intent to kill another person and acts immediately such that the formation of intent and the act occur simultaneously or so close together that there is no opportunity to reflect on the decision. Murder in the Second Degree typically involves killing another person in the heat of passion.

3. Manslaughter in the First Degree (reckless killing). The actor engages in conduct knowing that there is a substantial risk that the conduct will cause the death of another person. The typical example is playing Russian Roulette with another person. There is no intent to kill, but a death results nevertheless.

4. Manslaughter in the Second Degree (criminally negligent killing). The actor causes the death of another person while committing an act that he should have known would likely cause the death of another person and his failure to know that constitutes a gross deviation from the standard to act with due care to avoid injuring others.

Depending on whether a state has the death penalty, there is another category called Aggravated Murder, which is a premeditated murder with aggravating circumstances.

Aggravating circumstances are defined by statute and typically include the premeditated killing of another person to conceal the commission of another crime. For example, a rapist kills the victim to prevent her from reporting the crime and identifying him. Other examples include the premeditated murder of a cop or a judge. In each case the aggravating circumstance is the purpose behind the premeditated intent to kill.

The death penalty is not automatically imposed upon conviction of aggravated murder, no matter how heinous or depraved. Instead, a sentencing hearing is held after the jury convicts the defendant of aggravated murder in which the same jury that convicted him considers evidence submitted by the prosecution in aggravation of the offense and evidence offered by the defense in mitigation of the offense.

Evidence in aggravation includes the evidence the jury already heard about the offense in the guilt phase, a statement from a friend of the victim or member of the victim’s family who testifies regarding the impact of the victim’s death on the witness or family, and evidence of the defendant’s prior record of criminal convictions, if any exists.

Evidence in mitigation is evidence about the defendant, such as organic brain disorder, limited intellectual functioning, mental illness, victim of childhood sexual abuse or assault, or the defendant’s role in committing the murder (e.g., an accomplice who assisted another person to commit the murder but who did not commit the murder and may not have even been present when it occurred) that in fairness or mercy warrants a sentence of life without possibility of parole instead of the death penalty.

In Washington State where I handled all of my death penalty cases, the final instruction given to the jury after both sides rest in the penalty phase is as follows:

Having in mind the crime of which the defendant has been convicted, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit a sentence of less than death?

The jury also is instructed that the law presumes that the appropriate sentence is life without possibility of parole unless the prosecution overcomes that presumption with proof beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit the life without parole sentence.

The jury must be unanimous to impose the death sentence.


Why I Am Opposed To The Death Penalty

October 23, 2011

I am opposed to the death penalty in all cases. Period.

I have many reasons. Here are a few of them.

First and foremost, I oppose it because it is immoral. That it is imposed following a jury trial and appellate review, does not wash the defendant’s blood off the jury’s hands and, by extension, our hands because state sanctioned premeditated murder is still premeditated murder. No government ever should be in the business of killing its own people.

Second, death penalty cases typically cost more than three times the cost of incarcerating a defendant to life without possibility of parole.

Third, the death penalty has no deterrent effect. It does not reduce homicide rates. In fact, the opposite is true. Homicide rates are highest in the states that have a death penalty and lowest in the states that do not have a death penalty.

Fourth, our criminal justice system is so infected with racism, corrupt, and broken that it is impossible to know for certain if any given defendant committed the crime charged and, if he did, whether he deserves the death penalty, as opposed to life without parole.

Most people do not know that under our laws there is no murder, however heinous or depraved, that automatically results in a death sentence. When a jury convicts a defendant of a death eligible offense, the case proceeds to a sentencing phase in which the jury ultimately must decide whether the prosecution proved beyond a reasonable doubt that the aggravating evidence (typically the murder and the defendant’s prior record, if any) so outweighs the mitigating evidence (evidence about the defendant and his role in committing the murder) that the defendant should forfeit his life. Assuring consistency that similarly situated defendants convicted of committing similar murders are consistently sentenced to life without possibility of parole instead of death, or vice versa, has proven to be impossible within states, let alone between states.

In Callins v. Collins, 510 U.S. 1141 (1994), Justice Harry Blackmun dissented from the United States Supreme Court’s denial of review in a death penalty case stating,

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

He concluded,

Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it—and the death penalty— must be abandoned altogether.” Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (Marshall, J., concurring in judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent.

Justice Blackmun was a conservative Republican who believed strongly in the death penalty when he was appointed to the Supreme Court. As you can see, he finally reached the conclusion that it is impossible to fairly and equitably decide who lives and who dies. I reached the same conclusion, based on my 30 years of experience as a lawyer specializing in death penalty defense and forensics.

Justice Blackmun died in 1999.


%d bloggers like this: