Kirk Nurmi’s Motion on Arizona’s (F) (6) Aggravator is Denied (September 26)

The Jodi Arias Trial

More Aggravation of the Aggravator

Judge Stephens Denies Kirk Nurmi’s motion

Fact based reporting

By Rob Roman and Amanda Chen

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Today, September 26, 2013,  the Superior Court of Arizona denied Kirk Nurmi’s motion concerning Arizona’s “especially cruel” prong of the “especailly heinous, cruel or depraved” aggravator. The motion differed from many previous motions and appeals against Arizona’s wide open (F) (6) aggravator of “especially cruel”. Nurmi’s motion contends that the vagueness in the statute violates the separation of powers by allowing the jury, as part of the judiciary branch, to determine the meaning of the statute.

The Superior Court reasoned that prior jury decisions have been upheld and that the three branches of government (Executive, Legislative, and Judiciary) are not “hermetically sealed” but have overlapping borders and work together to promote and enact the decisions and intents of the other branches. The Court also emphasized the role of precedent in allowing courts to decide if the statute was properly applied.

kirk nurmiSomehow, Arizona is continuing to get away with this aggravating circumstance which makes almost any murder subject to the death penalty. The key word in the statute is “especially”. Yet, the statute combined with the jury instructions defines this as any physical or mental pain of a victim and the knowledge of the defendant that their actions would cause this pain. Because of this vagueness, almost any murder can be charged as a capital offense. Almost any murder suspect can be forced to feel the incredible leverage to plea bargain to a lesser charge, even if they are innocent. The suspect also faces the extreme financial and emotional challenges of defending themselves in a capital murder case.

Where is the “especially” in “especially cruel? It is not in the statute or the jury instructions. The clear meaning here is that all murdes are “regular cruelty” and that any murder which entails some mental suffering or anguish or some physical pain is “especially cruel”. There is no other reasonable interpretation. Yet the higher courts and even the Supreme Court have continued to uphold this interpretation. How does this narrow the number of murders that are death penalty eligible? Forgetting murders,  almost any death is accompanied by some mental suffering or physical pain. This continues to allow the targeting of certain defendants to face the death penalty.

us-supreme-courtThe Eighth Amendment to the U.S. Constitution forbids “cruel and unusual punishment”. Furman v. Georgia, specifically states that arbitrary punishment which can be applied to a few selected individuals is “cruel and unusual”. It is certainly arbitrary when there is a wide-open aggravator that can be universally applied. It is certainly only applied in a few selected cases, such as Stae v. Jodi Ann Arias. There remains no language in the statute or in jury instructions, which sufficiently narrows the circumstances of death penalty eligible murders. Clearly by the language of the Arizona statute, lethal injection is not only regular cruelty but it is also “especially cruel”.

Kirk Nurmi should force the argument because the core issue is the vagueness to any reasonable person of the meaning of “especially cruel”. The jurors are in fact forced to create law in violation of the separation of powers by usurping a function normally reserved for the legislature. No amount of opinions or case citings can change this fact. “To find that the murder was committed in an “especially cruel” manner you must find that the victim consciously suffered physical or mental pain, distress or anguish prior to death.”

kirk nurmi 2There needs to be some adjective between the word “suffered” and the word “physical”. The statute itself defines the meaning of “especially” as “unusually great or significant”. Why shouldn’t the jury instructions be revised to say “To find that the murder was committed in an “especially cruel” manner you must find that the victim consciously suffered unusually great or significant physical or mental pain, distress or anguish prior to death.”? What is so difficult about adding these words?

We have seen the evidence in the Jodi Arias trial. In one photo, everything appears fine. But we cannot tell from a photo what was happening between the two people. Seconds later, the victim is dead. A struggle and a terrible crime scene does not add up to unusually great or significant physical or mental pain. Nor should the fact that the victim defended himself in itself prove the especially cruel aggravator. The cruelty aggravator which opens the door to the death penalty usually involves a greatly prolonged violent struggle, beatings and / or rape, torture, a slow strangulation or poisoning, a kidnapping, a bound victim, and sufficient time for the victim to reflect upon, or to be in anguish or uncertainty of their ultimate fate.

pni0502-met ariasMany domestic homicides easily include one or more of these elements along with an intent to kill. Most of these homicides are against women. Yet, they are most often tried as second degree murders or even sudden heat of passion manslaughters. Under Arizona’s statute and jury instruction as they stand now, even Dexter’s killings, which are swift and sure, fit the interpretation of “especially cruel” in Arizona. So does lethal injection, for the uncertainty and mental anguish it produces. Under the improved jury instruction, these examples do not fit, and that would make it sufficiently narrow to exclude murders that should not qualify as death penalty eligible cases. In fact, as the wide-open Arizona cruelty aggravator now stands, most of the murders that do not qualify are cleanly executed assassinations, speed- of – light mafia hits, or a gunshot that causes instant death.

As I am writing this article, Juan Martinez is fighting with Judge Barton over State v. Redondo, and he wants her thrown off the case. Why is this? It’s because he believes she does not believe there must be a death penalty trial or death sentence in all cases. He has written a motion accusing her of going against a death outcome in three cases. Juan wants a hanging judge for Redondo, the man who is accused of murdering a police officer.


This clash and confrontation between Juan Martinez and Judge Barton has roots going back to the case of State v. Miller, where Miller executed five people in rapid succession.   In 2009 when the Miller case was going to trial, Juan had another conflict with Judge Barton. Juan wanted the cruelty aggravator to be included in this case and Judge Barton ruled against it. Judge Barton ruled that there were other aggravators already in the case and that cruelty could not be so easily proven, even in a multiple execution-style murders. Juan fought back, insisting that there could be extreme mental anguish.

judgeBartonJanetJudge Barton resisted, insisting that it would be too difficult to prove which victim suffered the anguish and it could have happened too quickly for the victims to contemplate their fate. Besides, there were already FOUR other death penalty aggravators:  a prior violent felony, Multiple murders, the murder of two minor children, and witness elimination. So why waste time on the cruelty aggravator?

Why did Juan Martinez push so hard for the cruelty aggravator in State v. Miller when there were already FOUR other easily provable aggravators? When we look at the decision in the denial of Kirk Nurmi’s motion in the Jodi Arias case about the cruelty aggravator, we can have our answer. The answer is precedent. There are two basic types of law involved in  this decision making. The first is statutory law enacted by legislatures and the second is common law precedent or what has been interpreted and accepted in past law cases.

Juan Martinez was fighting with Judge Barton to make a precedent for using the cruelty aggravator in gun deaths, where this aggravator is most often not applied. If he could create that precedent in State v. Miller, the door would swing open to qualify more gun deaths (without other aggravators) as death penalty eligible. This is clearly Juan Martinez’ intent to make the already wide-open cruelty aggravator even more universally applicable to any murder. Amazingly, Juan wnted to declare even execution style murders to be “especially cruel”.

The ruling on Nurmi’s motion states that the cruelty aggravator, though “facially vague”, was made constitutionally acceptable by the addition of the narrowing instructions given to the jury. The ruling states that the wording of the (F) (6) aggravator has not changed in four decades and therefore it is presumed to support the Supreme Court’s definitions. The ruling states that it is the Supreme Court’s duty to uphold statutes even if they are not precisely worded.

110413_arizona_house_ap_605The separation of powers of the three branches does not preclude the cooperation and overlap of the branches “in the attempt to prevent and punish criminal activity.” The legislative branch makes the laws but this branch “may allow another body to fill in the details of legislation already enacted.” The denial of Nurmi’s motion states that the jury “exercised its judicial power to effectuate the legislature’s intent”. This decision states that this does not violate the separation of powers doctrine in Arizona’s state Constitution.

judge sherry stephens 2So this is Judge Sherry Stephens ruling on Nurmi’s motion. He contends that the (F) (6) aggravator in its vagueness needlessly creates an arbitrary definition which allows almost all murders to qualify as death penalty cases. This violates the state’s separation of powers doctrine by allowing juries to decide the meaning of the statute. The decision shows a clear and strong reluctance to change the wording of the statute because this wording has been involved in so many other decisions. The so-called “narrowing instructions” has allowed the statute to survive Constitutional muster or scrutiny. Judge Stephen’s ruling states that the other branches often assist the legislature to interpret and carry out the legislature’s intent.

us supreme courtThis does not change the fact that the “narrowing instructions” do nothing at all to narrow the classes for which murders are objectively “especially cruel”. The ruling does nothing at all to narrow the classes and remove the arbitrariness over which murders may be found to be death penalty eligible in the first place. Rather the ruling depends on the ability of everyday jurors to decide the meaning of this aggravator. This ruling depends on the higher courts to weed out the verdicts that do not meet its own more qualified interpretation.

plaque in s cThis violates the intent of the 8th Amendment’s prohibition against cruel and unusual punishment. This violates the intent of Furman v. Georgia which enforces the need for a statutory scheme which sufficiently narrows the classes of murders eligible for the death penalty. This ruling was based on the need to prevent the death penalty from being so universally applicable to almost any murder that cruelty can be arbitrarily applied in a few selected cases.

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The State is still able to pick and choose who will be facing a death penalty case. Jodi Arias, in spite of or maybe because of the notoriety of this case, has clearly been chosen. At the very least, the “narrowing instructions” to the jury could and should be amended to achieve the Constitutional intent that the instructions are sufficiently narrowing. In light of all the arguments in the higher courts and the Supreme Court against Arizona’s poorly worded (F) (6) aggravator, one can only hope that a proper appeal will demonstrate the patent unfairness and arbitrary application of this “vague” statute that does not at all resolve its vagueness even with its “narrowing instructions” that do not in any way narrow.

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21 thoughts on “Kirk Nurmi’s Motion on Arizona’s (F) (6) Aggravator is Denied (September 26)”

    1. Thank you. That means a lot coming from you. I have tried to be carefull in keeping it fact based. I am really tired of all the fictions, especially today from Wendy Murphy.

  1. The articles are not only fact based but have a lot of critical and original thinking. They should be appreciated by anyone seeking an objective, realistic view, their personal opinion of the Arias case not withstanding.

    1. I wrote her a long letter about the “porn defense” . Amanda also sent an e-mail to her. We never heard back from her. I don’t know what kind of lawyer she is. I assume you saw her “open letter to Juan Martinez? Did Wendy Murphy notice that Jodi was not sentenced to death even with ZERO mitigation witnesses? Does she know for a fact that the four jurors who voted for life were men?

  2. From her website, she is officially “specializing in the representation of crime victims, women and children”. I have never heard of this branch of the law. Sounds a lot like the “good for my PR” branch. I guess she sees it the job of other lawyers to represent people accused of crimes, that’ s dirty work better left to others, an unimportant part of our adversarial justice system, it’s much better to focus on those who are likely to garner sympathy, popular causes, what a hero. As a woman I must say that it makes me cringe reading that she’s on “our team” representing women.
    I read her letter to “Juan”, evidently they’re on first name basis. I seriously think this woman has no estrogen. The letter is absolutely vicious. It makes her previous work fade in comparison. In her “Porn/Hannibal Lecter” article she states in the first sentence, first paragraph:
    “I 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.”
    Well, I would say in her latest masterpiece, the open letter to Juan, she is the loudest fan in the Coliseum. She makes Martinez look like a pussycat (ok, maybe a slight exaggeration).
    As before, she continues to condescend men and their tingly boxer shorts which according to her preclude them from thinking clearly, all the while she’s kissing the ass of Juan Martinez, the irony is painful. I don’t know what’s in her knickers (perhaps two large carbon steel testicles) but she doesn’t strike me as rational or stuck on principles of law either. As usual she gets facts wrong and states many things as given facts, things which were far from established as fact during the trial. Her advice to Martinez is essentially to be more dramatic than he was the last time around, as if that was not sufficient. All of her points of advice are absurd bordering on insane. My favorite is number four where she states: “Point out for the jury that such extortion (the sex) would make ANY decent person lash out with anger the way Travis did toward Arias right before he was slaughtered.” Now correct me if I’m wrong but since when is using sex manipulatively (if I assume for a moment that’s a fact which was established, though even Demorte didn’t claim that) a capital offense? I would say if Martinez follows this advice he will be making a good case for the defense, namely that Alexander lashed out in anger and she defended herself.
    I also like how she’s got the defense all figured out. She suggests that the defense is employing the old “tactical ineffective assistance of counsel” strategy in a far sighted attempt to fool the Ninth Circuit (that’s quite a leap when your client is facing death) and advises Juan to call JA’s mother and others to the stand himself, to circumvent this attempt. I guess she’s not aware of Juan basically threatening Patty Womack with prosecution and the IRS in an unethical but successful attempt to prevent her from testifying on behalf of Hannibal Lecter. She also appears to think that the Ninth Circuit of Appeals is a not too bright, wussy bunch who don’t know their law from their golf putters.
    She uses the words blah blah blah and integrity of our legal system in the same paragraph. She talks like she’s from the gutter.
    Wendy lives in a state where the last execution took place in 1947 and the last woman executed in Massachusetts was in 1789. I guess she’s living vicariously through Juan.

    1. Jodi is her ladder to more fame and visibility. Once again, gave words to my feelings about Wendy and posted them.

      Please tell Wendy that witness mitigation has almost no weight and the appellate courts say that over and over. Vicious is exactly what she is. She’s a victim’s rights lawyer?

      She probably handles civil suits like the one against OJ. So she is reaching her clientelle. I am the female bulldog to go to civil court and win by preponderance of the evidence.Yes, another Nancy. She has some kind of University teaching job.

      It’s true that Ineffective assistance of counsel is the most popular issue to get a new trial It should be because poor begaars can’t be choosers as far as a good public defender.

      But I would like to see a list of some cases where everyone presents no witnesses and then claims Ineffective. Maybe a few cases. I would think most defendants would like to throw as much mitigation out there as they possibly can. Very sharp and funny comment.

      1. She teaches at New England law, adjunct professor, now here’s the kicker; sexual violence perspectives in law, if you can believe that.
        Here is a couple of petty tidbits: she has 2000 likes on Facebook (out of a nation of 300 million if you don’t count Canada).
        There are many entertaining reviews of her book “And Justice for Some” on Amazon, I paste here one of my faves:
        Sam writes: “Just What We Need-Another Nancy Grace
        I’m a former prosecutor (now a defense attorney) and I’ve read this book, particularly because Murphy is actively involved in what has been characterized as a frivolous lawsuit filed in the Federal District Court for Nebraska against a sitting judge alleging that he violated the rights of an alleged sexual assault victim by prohibiting her from using the word “rape”, a legal conclusion, while testifying. Murphy’s shameless self-promotion under the guise of helping the victim resulted in a second mistrial and will very likely necessitate a third trial in a different venue thanks to the adverse publicity in which her juvenile stunts have resulted. But I digress. Murphy’s book is long on polemics and short on suggestions (although I suspect Murphy supports something along the lines of The Grand Inquisition or the Salem Witch Trials) and although I’m not familiar with the facts of all of the examples cited by Murphy, I am familiar with some of them and it would be an understatement to say that she has distorted and exaggerated factual data to underscore her contention that the criminal justice system is irretrievably broken.
        Are there some bad apples out there in the criminal justice system? Yes. Do some criminals go free? Yes, but the system was designed by our forefathers to guard the rights of individual citizens. Is it as out of control and run amok as Murphy would have you believe? No. Much more objective and less agenda driven books about the criminal justice system are out there by authors like Catherine Crier. Opinions on the criminal justice system should be based on an objective point of view, not a hateful screed written by a third rate Nancy Grace wannabe.”

      2. Standing ovation. Outstanding!!! I’m so happy there is someone out there with some common sense. She is so obviously trolling for clients.

        I would disagree, and say Wendy Murphy is Nancy grace on crack. Uh oh, sorry, SLANDER.

  3. You should see how many people are slamming her for Duke Lacrosse. I think the comment section on Amazon is more entertaining than her book.
    Now with the restructuring going on at HLN just watch, some genius will replace Nancy with Wendy and then the fun will really start.

    1. She would be a good fit. She is rabid. Oh, Wendy got involved in Duke Lacrosse? Or are you talking about the Nance?

      I don’t like that using AMazon book reviews to lash out at people. it’s just wrong.

      This isn’t a parlor game, you know! it’s M U R D E R !!

  4. This shouts of AZ picking and choosing what they like out of the US Constitution, rather like what we do over the Human Rights bill. They can’t see that murdering an innocent woman is a heinous act and an ”especially” cruel and aggravating factor, when it seems to me they’re
    on commission to murder as many innocent people as they can; in a republican State in all boils down to money and greed.

  5. Sometimes complex legal argument is again just argument.
    Why ws Travis Alexander’s murder especially cruel? Most people could easily answer that. Especially cruel is NOT something the layman CANT handle.
    Twenty 7 stab wounds (not 16) a shot to the head and a slit throat to near decapitation while still alive is plenty sufficient to show especially cruel. Compared to murder where someone is just shot dead. Or even stabbed in the heart once or twice. This ws overkill and since we know he had defensive wounds we know he ws alive to know what she ws doing. The wound on the neck and autopsy showed he ws alive and could see hear and KNOW what she ws doing was intent to slaughter him.
    This is just another absurd argument that only Arias supporters tend to think has any sound reasoning behind it. Jodi Arias’ case ws unusual in a few ways. The overkill, the incessant lying, who she presented as, the media. Even the extent to which her lawyers were willing to subject themselves of her demands. The defense in effect started sounding just like Jodi Arias in that they used argument which sounded more like the anger of an outraged teenager with a personality disorder who refused to see how her situation was entirely of her own making and attempts to lay blame on the prosecutor, the ME, the lead investigator, the prosecutions psychologist, even her own experts (Alyce got it wrong- I didn’t lie again!) was so much like the boy who cried wolf it had to hv become deeply embarrassing and humiliating for her lawyers. Yet onward they would go, fighting with her and being forced to follow her oh so doomed lead.

    1. Thanks for your comment, Cate. I never saw this comment, so let me answer it now. First of all, 27 is wrong. There were 29 knife wounds, and 16 stab wounds, according to the official autopsy report.

      The shot to the head, according to the prosecution, was post mortem and therefore could not be counted as cruel. Overkill doesn’t make a killing especially cruel, it makes a killing fatser, which is less cruel. Cruelty is predicated on the victim consciously feeling pain or mental anguish prior to death. The more drawn out the killing is, the more physical pain and/or mental anguish there will be.

      Second, if Travis were stabbed once in the heart and left to bleed out slowly, isn’t that more cruel than killing him quickly? It’s not the number of wounds that make a killing “especially cruel”.

      Third, you don’t seem to notice that this article is not about whether or not Travis’ death was extremely cruel, it’s about whether the wording of the law combined with the jury instruction is Constitutional or not. I don’t see how you could have missed that.

      Then you continue with a hodge-podge of accusations completely divorced from fact. Jodi Arias was running her defense – if so, why did she try so hard numerous times to have Nurmi taken off the case? Jodi Arias blames everyone but herself – actually she said it was her and her alone, who was responsible.

      Jodi Airas blames the prosecution’s psychologist, Dr. Janeen DeMarte, Alyce LaViolette and her own experts – No evidence of this exists. Jodi Arias has forced her attorneys to follow her doomed lead – You have no way of knowing the inner workings of the defense.

      The defendant/client is the actual leader of their own defense, it’s just that most people defer to their lawyer(s) to run the case as they see fit.

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