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
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.
Somehow, 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.
The 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.”
There 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.
Many 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.
Judge 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.
The 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.
So 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.
This 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.
This 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.
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.
All Rights Reserved
Unlike many Blogs, ALL comments are welcome and willl be posted.