Why the Felony Murder charge is the Holy Grail
of the Jodi Arias case
Fact based reporting
by Rob Roman & Amanda Chen
Much has been made of the 1st degree Felony murder charge in the Jodi Arias case. The popular consensus is:
1) This is a totally legitimate charge under Arizona law.
2) The prosecution can charge whatever they want. It’s still up to the jury whether or not to convict on each charge.
3) Arias’ defense attorneys are a “joke” and “do not know what the hell they’re talking about”.
4) “F*ck Off, f*cktard!!”
5) Nobody cares / It doesn’t matter, because the jury did not find Jodi Arias guilty of 1st degree Felony Murder.
6) The jury instructions said that jurors can make a finding of both 1st degree AND felony murder, and that’s what some of them did. So what?
7) Jodi Arias butchered Travis Alexander. She was unanimously found guilty of first degree Premeditated Murder by a jury of her peers, so f*ck off!
8) It was Felony Murder, because it was a felony AND it was a murder. – It’s not rocket science – Duh!
“Ladies and Gentlemen: There’s nothing.
It’s silly. It’s fearful. That charge is there out of fear.
It makes no sense …. not under any scenario does that make any sense.
Either she was there to kill him … or she wasn’t.”
– Defense Attorney Kirk Nurmi
What does he mean by “Either she was there to kill him … or she wasn’t”?
What does he mean by “That charge is there out of fear”?
Now is a good time to review the different charges for a murder:
1st degree Premeditated Murder: A deliberate plan to kill or a “period of cool deliberation”.
It’s deliberate and there is an intent to kill in the person’s mind. It’s also called a “cold-blooded murder”. It’s considered worse than 2nd degree Murder because a person calmly made a decision to murder, reflected on it, and then carried it out.
1st degree Felony Murder: A deliberate plan to carry out a dangerous felony (other than 1st degree murder) and in the course of that felony, a death occurs.
The primary or “predicate felony” is the main intent of the person. The person usually has no premeditation to commit murder. As a result of and in the course of carrying out that dangerous felony, somebody dies.
2nd degree Murder: There is no deliberate plan to kill nor a “period of cool deliberation” or it cannot be proven in court, but the person intentionally caused the death of another person.
There is no provable deliberation, but an intent to kill is formed in the person’s mind. It is a murder born of unplanned circumstances. Often, this would be called a “hot-blooded murder”.
If a jury finds that this 2nd degree murder was committed in the intense emotional turmoil called a “heat of passion”, Arizona law requires that the charge be reduced to Manslaughter.
Manslaughter: There is no deliberate plan and no intent to kill, but the person negligently or recklessly caused the death of another person.
Justifiable Homicide: A murder is justified because a person was defending their life or the life of another person.
We have a situation in a Capital murder case, where the prosecution is pushing hard for a 1st degree murder conviction, this will mean lifetime imprisonment or the Death Penalty.
The defense is pushing just as hard to get, at the least, a 2nd degree murder conviction, where the Death penalty cannot be applied and the defendant has some chance of parole and one day getting out of prison. Of course, a heat of passion manslaughter verdict or an acquittal would be even better for the defense and Arias.
The Defense in the Jodi Arias case had a primary goal or mission to get anything BUT a 1st degree murder conviction for the same reasons.
Can the additional but bogus charge of 1st degree felony murder assist the prosecution to achieve their goal of a 1st degree murder conviction?
Now, let’s review the actual instructions that the jury was given and that Judge Stephens read word for word to the jury.
“THE CHARGED OFFENSE – PREMEDITATED MURDER
Count 1 charges the defendant with First Degree Murder. Arizona law
recognizes two types of First Degree Murder – Premeditated Murder and
Felony Murder. The state has charged the defendant with both types.
The crime of First Degree Premeditated Murder requires the state to prove the following:
- The defendant caused the death of another person; and
- The defendant intended or knew that she would cause the death of another person; and
- The defendant acted with premeditation.
“Premeditation” means that the defendant intended to kill another human being or knew she would kill another human being; and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes First Degree Murder from Second Degree Murder.
While reflection is required for First Degree Murder, the time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.
The crime of First Degree Premeditated Murder includes the lesseroffense of Second Degree Murder. You may consider a lesser offense if either:
- You find the defendant not guilty of First Degree Premeditated Murder; or
- After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of First Degree Premeditated Murder.
You cannot find the defendant guilty of any offense unless you find that the State has proved each element of that offense beyond a reasonable doubt.
SECOND DEGREE MURDER
The crime of Second Degree Murder requires proof of one of the
- The defendant intentionally caused the death of another person; or
- The defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury; or
Under circumstances manifesting extreme indifference to human life, the defendant recklessly engaged in conduct that created a grave risk of death and thereby caused the death of another person. The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant’s situation would have done.
The difference between first degree murder and second degree murder is that second degree murder does not require premeditation by thedefendant.
CHARGED OFFENSE – FELONY MURDER
As stated earlier, Count 1 also charges defendant with First Degree Felony Murder. The crime of First Degree Felony Murder requires the state to prove the following two things:
- The defendant committed or attempted to commit Burglary in the
Second Degree; and
- In the course of and in furtherance of committing Burglary in the Second Degree, or immediate flight from it, the defendant caused the death of any person.
An “attempt” requires the state to prove that the defendant intentionally did something which, under the circumstances she believed them to be, was a step in a course of conduct planned to culminate in the commission of the offense. The crime of Burglary in the Second Degree requires proof that the defendant:
- Entered or remained unlawfully in or on a residential structure; and
- Did so with the intent to commit any theft or felony therein.
Residential structure means any structure, movable or immovable, permanent or temporary, that is adapted for both human residence and lodging whether occupied or not.
“Intentionally” or “with the intent to” means, with respect to a result or to conduct described by a statute defining an offense, that a person’s objective is to cause that result or to engage in that conduct.
There are no lesser included offenses for First Degree Felony Murder.
Okay, I hope you lived through that. If so, you may have noticed a few things. First, it seems as if juries were very confused about how if they decide it’s a second degree murder, then they must decide if it was a “sudden heat of passion” killing. If the jury decides it is, then the 2nd degree murder is reduced to manslaughter. The instructions repeat so many times on this that it seems that there was trouble with the comprehension of this instructions.
The 1st degree pre-meditated murder charge includes the lesser offenses of 2nd degree murder, sudden heat of passion murder, and manslaughter. The Felony murder charge has no lesser included offenses.
The jury is informed that all can vote for premeditated M1, or all can vote for felony M1, or all can vote for both, or there can be any kind of mixture, as long as they are all unanimous that it’s a first degree murder.
In order to make a finding of Felony murder in this case, the jurors need to find that the defendant committed or intended to commit 2nd degree burglary. In Arizona, this only means that a defendant entered or remained unlawfully in a residence with the intent to commit any other theft or felony.
Can two people both be guilty of felony murder with one victim? Yes they can.
Example: Joe Blow and Lou Blew go to rob a horse track. Lou Blew blows away a cashier. Both Joe Blow and Lou Blew are guilty of felony murder.
Can one person be guilty of felony murder with two victims? Yes they can.
Example: Snidely Whiplash is in his Humvee being chased by the police. The police car smashes into a motorcycle, killing Hairy Ryder. Snidely runs over Midge, a little old lady with a walker who was trying to cross the street. Snidely Whiplash is guilty of two counts of felony murder.
Can one person be guilty of both felony murder and premeditated murder with two victims? Yes they can.
Example: Robin Redrum plans on killing Bumptious Q. Bangwhistle in his home a month in advance. She goes to his home and shoots him dead. Bumptious’ brother, Sumptious Z. Bangwhistle, is visiting that day. He hears the gunfire and comes out of the bathroom and Robin shoots him dead. Robin Redrum is guilty of one count of 1st degree Premeditated Murder and one count of 1st degree Felony Murder.
Now, can one person be guilty of BOTH felony murder and premeditated murder with a single victim? Only rarely, and it would take some doing and some verbal gymnastics to explain how this could be so without a separate felony.
Premeditated murder is a planned murder, or at the very least, the person had a moment of cool reflection.
Felony murder is an unplanned murder. The person plans another felony, and in the course of and in furtherance of this felony, a death occurs. (The victim could have a heart attack, your accomplice could murder the victim, the police could shoot the victim by mistake when trying to shoot you, or you could be surprised by an unexpected victim and kill them, or you could just suddenly decide to kill somebody. All these are examples of felony murder).
How does one person commit BOTH a planned and an unplanned killing with a single victim? Not very easily, BUT Arizona law does allow jurors to find both pre-meditated murder 1 and felony murder 1 concurrently under certain circumstances.
Doesn’t that seem like a blessing for prosecutors?
A) Let’s say Horatio Hornblower plans to tie up and rob little Billy Pilgrim. He ties him up and steals his computer and big screen TV. He drives away, then he thinks again and drives back to Billy Pilgrim’s house and kills him with a George Foreman 3 minute hamburger grill. Now, is this felony murder or premeditated murder or both?
B) Let’s say Horatio Hornblower again plans to tie up and rob little Billy Pilgrim. He ties him up and steals his computer and big screen TV. Billy tells Horatio that he’s a useless cowardly thieving dirt bag. Horatio Hornblower then brains Billy with a George Foreman 3 minute hamburger grill. Is this example felony murder, pre-meditated murder, or both?
C) Let’s say Robin Redrum has NO intention to kill Sweet Polly Purebred in her home by suffocating her with a plastic bag. Robin is a welcome guest. A fight breaks out. She puts a plastic bag over Polly’s head, but she’s not dying. She’s injured, but not dead. So Robin stabs her with Polly’s knitting needle 99 times until she dies. She takes the bag and the knitting needle with her. Is this premeditated murder or felony murder or both?
D) Now, let’s reverse that and say that Robin Redrum plans for months to stab Sweet Polly Purebred to death in her own home with Robin’s knitting needle. She stabs her 99 times, but she doesn’t know if she’s dead or not. She puts a plastic bag over her head just to be sure and takes her own knitting needle. Is this felony murder or premeditated murder or both?
The last example is the equivalent of the prosecution’s theory in the Jodi Arias case (gunshot last, pre-meditation, Jodi brought the gun). The one before that is the alternate theory of murder in the Jodi Arias case (gunshot first, no pre-meditation, Jodi used and stole Travis’gun).
Now, can you apply the jury instructions to these 4 cases? What do you come up with?
A) Under the laws of California and many other states, this would be premeditated murder. It starts out as a felony, but Horatio leaves, then deliberates and after cool reflection, decides to go back and kill Billy Pilgrim. For me, this would be 1stdegree premeditated murder plus separate kidnapping and burglary charges.
In Arizona, however, this fulfills all the requirements for a finding of BOTH Pre-meditated M1 AND Felony M1.
B) I would call this felony murder. Horatio intended to commit a felony. While engaged in the felony, he becomes enraged at Billy Pilgrim and, without a plan or cool reflection, murders him. I would charge felony murder and add on the kidnapping and burglary charges.
C) This would seem to me to be premeditated murder or it could be 2nd degree murder, depending on the details. Robin Redrum didn’t plan the murder. There was no intended felony. A fight broke out and Robn went wild. If there was a cooling off period proven, then it’s 1st degree premeditated murder. If there was no time for reflection, then it’s 2nd degree murder. If the jury finds it’s a sudden heat of passion killing. (Robin and Polly had an intimate relationship of some kind), then the charge could be reduced to manslaughter.
D) This would also seem to me to be premeditated murder. Robin Redrum planned the murder and carried it out. There doesn’t seem to be any intended felony or further felony other than the murder itself.
Did you come to the same conclusions as I did?
In the Jodi Arias case, there were 7 out of 12 jurors who found that it was BOTH a felony murder and a premeditated murder. How did that happen? There were also 8 jurors out of 12 jurors who voted for death. Since I do not know, I think it’s a very good educated guess that the 7 who voted for both felony and premeditated murder AND 7 of the 8 jurors who voted for death are the same people.
I would love to hear their explanation as to how this is BOTH. I would love to hear anyone’s explanation as to how this can be both a planned AND an unplanned murder.
In Arizona, there IS an explanation:
If the prosecution proves that a death occurred “In the course of, and in furtherance of, another intended felony”, a juror can make a finding of Felony Murder 1, even if that same juror also made a finding of Pre-meditated M1.
Kirk Nurmi argued that since there is no predicate felony, there is no Felony Murder. So, it is either 1st degree premeditated murder, which the prosecution argued almost exclusively, or it is a LESSER CHARGE, such as 2nd degree murder or heat of passion manslaughter. Here’s what he said about this in the guilt phase part of the trial in 2013:
“Remember when we heard the charge of Felony Murder yesterday and the state making an argument that was….incomprehensible? This idea that well…if you believe Jodi’s version of events she’s guilty of felony murder because she went to Travis’ home, and she decided to steal his gun, and in the course of trying to steal his gun, she shot him. She went there, they had sex, they did all these things, then she decided she wanted his gun, and decided to take it, and wanted it so bad that she was willing to kill him.
That’s the theory of felony murder they have put forward. That shows a little fear, and we’ll talk about some of the fear that the state has demonstrated throughout this case, but that’s just some of it – alright? We also heard this idea that….well, she was unwelcome once she put the weapon upon him and she was there to commit a burglary or another felony ….. there’s no other felony.
Ladies and Gentlemen: There’s nothing. It’s silly. It’s fearful. That charge is there out of fear. It makes no sense …. not under any scenario does that make any sense. Either she was there to kill him, because the state said “Hey this is a plot that began in May”. Either she was there to kill him … or she wasn’t, and that’s ultimately what we’re here to determine.”
– Defense lead attorney Lawrence “Kirk” Nurmi in the guilt phase closing argument.
Start at 9:15
So, in his closing statements, what does Kirk Nurmi mean by “Either she was there to kill him … or she wasn’t”?
What he means is that this is either a deliberate pre-planned, cooly reflected upon murder, or it should be a lesser charge.
The reason why he’s saying this is because he doesn’t see an underlying felony in the felony murder charge. Martinez’ answer during Nurmi’s motion to dismiss the felony murder charge is that the underlying felony can be any lesser offense of Premeditated Murder. This is after he states once again the reasons why this is clearly a premeditated murder. Then Martinez offers up “assault” as the underlying felony in the felony murder charge.
We are well on our way up the hill to the Holy Grail, I promise. But first, let’s take a small detour and look at the genesis of the felony murder charge. It never changed from the time of the indictment, although premeditated and felony murder are clearly stated as ALTERNATIVES.
Here’s the relevant wording from the original indictment on July 9th 2008 (Jodi Arias’ birthday):
“The Grand Jurors of Maricopa County, Arizona, accuse Jodi Ann Arias on this 9th day of July, 2008, charging that in Maricopa County, Arizona:
JODI ANN ARIAS, on the 4th day of June, 2008, intending or knowing that her conduct would cause death, with premeditation caused the death of TRAVIS V. ALEXANDER, in violation of A.R.S. $$ 13-1101, 13-1105, 13-702, 13-703, 13-703.01 and 13-801.
The State of Arizona further alleges that the offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a .25 caliber handgun and/or knife, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious injury upon TRAVIS V. ALEXANDER, in violation of A.R.S. $$ 13-604 (P).
OR IN THE ALTERNATIVE
JODI ANN ARIAS, on or about the 4th day of June, 2008, acting either alone or with one or more other persons, committed or attempted to commit Burglary, Second Degree, and in the course of and in furtherance of such offense, or immediate flight from such offense, JODI ANN ARIAS or another person caused the death of TRAVIS V. ALEXANDER, in violation of $$ 13-1105, 13-1101, 13-702, 13-703, 13-703.01 and 13-801.
The State of Arizona further alleges that the offense charged in this count is a dangerous
felony because it involved the discharge, use, or threatening exhibition of a .25 caliber handgun and/or knife, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious physical injury upon TRAVIS VICTOR ALEXANDER in violation of A.R.S. $ 13-604(P).
Did you see that? Premeditated Murder OR, IN THE ALTERNATIVE, felony murder. Not both, how could it be both? You either planned a murder or you didn’t, right? In Arizona, for whatever reasoning, a juror can find both if the pre-meditated murder happened “In the course of, and in furtherance of, another intended felony”.
In Arizona, you get to
I’m going to throw out a word to you now – Boilerplate. It’s a legal term meaning a standard way of wording things such that there are few problems understanding it. The exact same, time-tested phrasing is used every time. July 9th was just a month after the body was found.
“JODI ANN ARIAS, on or about the 4th day of June, 2008, acting either alone or with one or more other persons, committed or attempted to commit Burglary, Second Degree”. This standard boiler plate language should be narrowed down to exactly what the evidence shows by the time of the trial.
At that point, Jodi could have been hiding and protecting an accomplice who actually did the killing while she just watched. She would still be guilty of 1st degree felony murder, because she was a willing accomplice. Someone could have assisted her, even if Jodi did the killing. Maybe it would turn out that either Jodi didn’t premeditate the murder OR there was not enough evidence of premeditation.
So that boilerplate wording on the indictment including the felony murder charge are there as a catch-all or a just in case. They’re basically a one size fits all. Three or Four years later, you would think the prosecution would know if it was felony murder or a premeditated murder. Everyone knows what they are going to try to prove and what their theory of the case will be.
– But they left the defense guessing.
Kirk Nurmi made two major points in his closing about the Felony Murder Charge. It makes no sense, and it’s only there because of “fear”.
“Either she was there to kill him, or she wasn’t”.
In Arizona, there are 16 statutory (witten in the law) predicate felonies for felony murder. These are:
1) Sexual Conduct with a minor
2) Sexual Assault
3) Molestation of a child
5) Marijuana offenses
6) Dangerous drug offenses
7) Narcotics offenses
8) The use of minors in drug offenses
9) Drive by shooting
15) Child abuse
16) Unlawful flight from a pursuing law enforcement vehicle”
Jodi’s predicate felony is burglary? You’ve got to be kidding me. Incredibly, Juan Martinez sold that B.S. To the jury, or to many of them, anyways. I don’t think you can stretch, mutilate, and warp a law any more than Martinez did here. Then he sold it to them, because he is the fireside story teller. There were five astute jurors, though, who weren’t buying it at all.
The State has put forth that the felony predicate is burglary. In Arizona statutes, burglary is akin to trespassing with the intent to commit any felony. Jodi Arias at some point became an uninvited guest in Travis Alexander’s home. When, exactly did Jodi Arias become an unwelcome guest in Travis’ home? According to the twisted logic of the State, Jodi Arias became an unwelcome guest as soon as she began her premeditated murder of Travis Alexander.
According to the state, when Jodi Arias began killing Travis Alexander, at that point in time, she is no longer welcome in Travis’ home and is now guilty of 2nd degree burglary.
“The crime of Burglary in the Second Degree requires proof that
- Entered or remained unlawfully in or on a residential
- Did so with the intent to commit any theft or felony therein.”
– Arizona 2nd degree burglary statute.
Here there is a situation where, as soon as Jodi Arias starts killing Travis Alexander, she is now guilty of second degree burglary, because Travis obviously would not want her in his home at that time = remaining unlawfully in a residential structure. That same act of starting to kill Alexander also serves as the further felony Arias intended to commit. So the killing of Alexander serves as the reason why she is guilty of 2nd degree burglary, plus it is the further felony Arias intended to commit, plus it is the killing that was committed in the course of the burglary.
Do you see why this is insane circular logic? As a matter of fact, that’s what Kirk Nurmi argued when he asked the court to drop the Felony Murder charge after it became clear that the State was arguing just about exclusively for 1st degree premeditated murder. He said this is circular logic. The murder and the predicate felony and the further intended felony cannot be all the same thing.
Not only is it circular logic, but also, there’s a law against it:
“Felony-murder cannot be charged if all the elements of the felony are included in the elements of murder. This is known as the merger doctrine, which holds that if the underlying felony merges with the killing, the felony cannot constitute felony-murder. For example, all of the elements of the crime of Assault and Battery with a deadly weapon are included in murder. If a killing, therefore, occurred during the course of this crime, the accused would be charged with murder.”
Yet this is exactly what Martinez is putting forth. He wrongly divides a stabbing murder into a series of assaults with a knife, and calls the intended further felony “assault”.
Update: It has come to my attention that, In Arizona, Martinez and Judge Stephens correctly cited the law when stating that the intended felony defining the burglary can be assault even if the victim was murdered.
Again, the predicate felony = remaining unlawfully in the home (via killing Alexander) with the intent of committing any further felony (killing Alexander) and the murder part of the felony murder is (killing Alexander).
For this charge of Felony Murder, aren’t all of the elements of the felony predicate “merging” with the murder?
You cannot do that. Yet, Martinez and the state of Arizona did do it. Sound familiar?
It seems that in the Bizarro world of Arizona, a murder can be divided up into a series of assaults.
Now, let’s entertain the theory that it was Travis’ gun that was used in the killing. Besides the fact that this significantly weakens the State’s case for pre-meditation, this scenario doesn’t work so hot either. That’s because the State would have to prove that Arias’ stated intention was to remain in Alexander’s residence with the intent to steal that gun, and in the course of committing this felony, she was willing to kill Alexander.
He would have to prove that Arias intended to steal the gun prior to, rather than after, the murder.
Following this theory, the death occurred while she was in the process of stealing Travis’ gun, which was her primary intention. This is absurd. Since she got rid of the gun, one can then be confident that her main purpose was not to be in the home unlawfully in order to steal his gun.
There’s a much better argument for that:
What if, she broke into the home, was in there without Alexander’s consent or knowledge, and then he caught her with the gun in her hand? She shoots him and kills him because he identified her in his home when she was supposed to be 1,000 miles away in Yreka. This is a much clearer case of felony murder. But, as we know, Travis let her in the home, Jodi knew what he was watching on his computer (You tube: “Harder Better Faster Stronger”).
We know they took pictures of each other, and we know they had sex a number of times. One could have confidence that she was welcome in the home (at least, at first).
Neither theft of the gun, nor “assault”, nor the killing of Alexander can fulfill the “intent to commit any felony” part of the Felony Murder Statute, according to Nurmi. The intended felony must be separate from the killing.
Update: It has been brought to my attention that Arizona does not recognize the merger rule in all instances, meaning if a person is murdered, you can break down that murder into a series of assaults and you can use assault as the felony defining the felony predicate of burglary.
The prosecution, after being asked over and over again by the defense about their intentions with the felony murder charge, in 2010, finally stated what they would be using “any of the lesser included offenses” (murder 2, manslaughter). Later, they added “aggravated assault” and “theft” as the intended offense beyond 2nd degree burglary (remaining in the home unlawfully). Doesn’t this show that they have no clear theory?
Nurmi brought up a motion to dismiss the felony murder charge on the ninth day of trial, in open court minus the jury, on video. There he states that there is no underlying felony for the felony murder charge (video below). Nurmi said “The essence of the argument, your honor, is that there was nothing facilitated, at all. There was no distinct offense for this burglary….and the assertions of felony murder based on that should not stand.” Here he is saying that there was no intent to commit a theft or any felony other than the killing itself.
Juan Martinez states that the further felony is assault, now her status has changed to an unwelcome guest, the assault, and the stabbings that happened after that become the felony. Nurmi responded that it is either a premeditated murder or it’s not, and the felony murder burglary charge is just an “empty vessel” in order to seek a first degree murder conviction. (The motion was denied by Judge Sherry Stephens).
The defense motion to dismiss the felony murder charge.
Start at 47:15
Do you remember this? Jodi must have forgotten her glasses or something and is wearing a different pair. Nurmi and Martinez fight it out over the felony murder charge
At SpotLightOnLaw, we have talked about the felony murder charge a lot. Now, we hope you will soon understand why. Who gives a hoot about the felony murder charge when it’s old news? It’s over and done with, the jury was unanimous for pre-meditated murder anyways, and Nurmi is a blooming idiot!
No, there’s something to this. Either this is Martinez’ trick, or it’s just bad common law. Not the first time we’ve seen a poorly worded statute interpretated poorly in Arizona.
Nurmi seems to feel internally that this is incorrect. He’s not wrong, but his argument is not persuasive enough. He didn’t invoke the merger rule and he couldn’t find any case law specific enough to this issue. He’s a really good attorney, but he’s lacking as a trial lawyer.
I will reiterate this now in a visual format, so I hope you can see that this felony murder charge is ridiculous. It’s ludicrous. It makes no logical, practical or legal sense, does it?
Stay with me, now. I hope you will see that this is at the root of what’s wrong with the Jodi Arias case. The Holy Grail is in sight!
What do you believe is the theft or felony that Jodi intended to commit or committed? No, Juan Martinez and Judge Stephens, it cannot be the murder itself.
But, wait. According to Arizona law, and only Arizona law, Juan Martinez and Judge Stephens are correct in saying that assault CAN be used as the the felony defining the burglary.
Martinez in closing arguments of the guilt phase discussing the felony murder charge
Starts at 23:30 then he picks it up again at 37:30
Now, if you don’t believe me, look at what a very good attorney in Arizona has to say:
Vladimir Gagic, Criminal Law Attorney
“That, for the moment, leaves the felony murder charge, which is count two in the indictment. At common law, felony murder meant that someone could be charged for murder even if they never intended to kill a person, so long as the a death was the foreseeable result while the defendant was committing a dangerous felony.
The classic example of a felony murder is when a kidnap victim dies from a heart attack while stuffed in the trunk of a kidnapper’s car. Thus, even though the kidnapper never intended to kill his victim, he is still guilty of felony murder because the death of his victim was a foreseeable consequence of the underlying predicate felony, kidnapping.”
“Another example is when during a bank robbery the police shoot and kill a bank robber’s accomplice. Even though the bank robbers certainly never intended the police to kill one of them, that result was foreseeable, and thus felony murder. Other common law predicate felonies included rape and burglary. Assault is not a predicate felony in Arizona for the felony murder rule.”
“The important point with the felony murder rule is that the predicate felony is different from intent to murder, depraved indifference murder, manslaughter, or any other homicide charge because the goal of the felony murder rule is to deter the predicate felony itself, while non-felony murder homicide and murder laws deal with homicide charges directly.”
“As most of you are aware, the government has charged Ms. Arias with felony murder, with the predicate felony being burglary. The important point here is that while even though common law burglary required breaking and entering with the intent to commit a theft therein, in Arizona, which follows the model penal code, defines burglary more broadly as (see “Arizona Revised Statute ARS 13-1506 and 13-1507):
Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein; and A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.”
“The prosecutor does not allege Ms. Arias entered into Travis Alexander’s home with the intent to kill him or commit any felony, for that matter, at the moment of entry. How could he when all the evidence shows Mr. Alexander invited Ms. Arias into his house? The evidence is clear she spent at least 8 hours in his house, and during that time together they had sex multiple times.”
“Instead, the prosecutor’s argument is that felony murder applies because at some point Mr. Alexander revoked permission from Ms. Arias to be in his house, and at that point, she was “remaining unlawfully in… a residential structure”. This is where things get quite silly for the government’s felony murder allegation:
if in fact at some point Jodi Arias was still in Mr. Alexander’s house without his permission (we can call that point T1), what felony was Ms. Arias’ intending to commit at T1? If she was intending to kill him at T1, then that would be the exact same thing as count one, murder in the first degree intent to kill, premeditated murder.”
“The defense filed a motion to dismiss the felony murder charge, stating quite correctly the allegation makes no sense. In response, Judge Stephens ruled Ms. Arias’ intent at T1 could have been assault, not intent to kill Mr. Alexander. I believe that ruling is in error because of something called the merger rule.
To count any death that occurred during the course of an assault as felony murder would obliterate the distinction between assault and murder. And even more importantly, there would be no distinction between second degree depraved indifference murder and first degree intent to kill murder.”
“P.S. What I mean by merger rule is that the predicate underlying dangerous felony, the dangerous felony of felony murder, must be different from the actual murder charge itself; that is why assault is not a predicate in felony murder. If it was a predicate, then every murder would automatically be felony murder because every murder involves an assault. In other words, proving the murder would automatically prove the assault as the evidence is circular. And thus, there would be no degrees of murder charges (first degree, second degree) as there are now.”
There’s more to it. Let’s move on to the other pieces of the puzzle.
This explanation makes good sense and it’s the law in most states. Here is another instance, like the F(6) cruelty aggravator, where the statute is poorly written, coupled with illogical jury instructions or case law, that leaves Nurmi and Gagic and I, feeling like something is not quite right. That’s my overall feeling about the Jodi Arias case, too.
What did Kirk Nurmi mean by “That charge is there out of fear”?
Now, we are getting to what Kirk Nurmi said about the prosecution’s ”fear”. What’s the distinction between 1st degree Felony Murder and 2nd degree Murder? Both involve no pre-planning, and in both, the person must have an intent.
The difference is that in Felony Murder, as normally observed, there must be an intent to commit another dangerous felony (where a death is foreseeable). There must be a primary or “predicate felony” OTHER THAN THE KILLING, with no pre-planned intention to kill. In the course of committing this dangerous felony, a death occurs.
Martinez argued premeditation throughout this case. He even argues a short moment of cool reflection in the bathroom was also possible, in case the jurors don’t accept the long premeditation theory. The – Travis was “killed three ways” argument is also meant to show deliberation and premeditation. He argued throughout the case that Travis didn’t own a gun, and that Jodi brought the gun with her from Yreka.
Now, Martinez is telling the jury that according to Arias’ version of events, Travis did own a gun and he’s arguing that she did steal it and that makes theft the felony defining the burglary. He’s arguing that Travis Alexander was murdered, and in the process of the murder he was assaulted, making assault the felony defining the burglary.
Martinez is telling the jury that yes, you can find that this was both a felony murder and a pre-meditated murder if the premeditated murder happened in furtherance of the burglary. He’s telling them that as soon as Arias first assaulted Alexander, that at that point, she was now unwelcome and unlawfully in the home. He’s telling them that this fits the Arizona burglary statute.
Who’s right and who’s wrong?
Why is he doing this? What is going on here?
Imagine there are 4 rooms, like motel rooms. Imagine there is a door to each of these rooms. The first room is 1st degree pre-meditated murder, the second room is 2nd degree murder, the 3rd is manslaughter and the 4th is justifiable homicide. Which door will the jury walk through?
If some jurors are unsure about premeditation or if some feel it’s a heat of passion homicide, they could have a compromise verdict and choose to walk through the door of 2nd degree murder. But what if the state is allowed to add the door of 1st degree felony murder? In this motel scenario, that extra door would lead into the same room as the 1st degree pre-meditated door, (or they could be connected rooms). In any case, it’s another choice for the jury.
It’s another choice which gives the prosecution another opportunity for the jurors to go into the room they want. That’s only fair, Martinez would say, because the defense has 3 doors and 3 rooms and we only have one. Now, it’s more fair because they have 3 doors and we now have 2 doors.
That’s what’s really going on here. He wants it to be as ambiguous as possible.
Whether Jodi Arias is completely innocent or whether she is a cruel and evil, cold-blooded murderer shouldn’t even matter. Does what Jodi did give officials the right to do what they’re doing here, or what they have done and continue to do in the State of Arizona?
Maybe the statute and/or the interpretations of the statute is just plain wrong.
In the beginning of this case, Juan Martinez had much less information about the gas cans than he did by the end of the trial. The major evidences of pre-meditation at the beginning of the trial were the license plates being tampered with, the car being rented 90 miles from Yreka, the borrowed gas cans, the hair coloring, the phone being off, and the recovered bullet being the same caliber as the gun stolen in Yreka.
All these occurrences could have nefarious explanations, but all these could have innocent explanations. If I were the prosecutor on this case, I would have been a little worried. Maybe that explains, both the change by the prosecution in the order of injuries from gun first to gun last (with the help of Dr. Horn), AND the retention of the felony murder charge. Is it just a coincidence that both of these absurd assertions help to dramatically increase the odds for the prosecution?
The biggest untold embarrassment of this trial is that there was division in this jury. They could not agree on the essentials of this case, and they disagreed 8 to 4 over the death penalty. Seven jurors voted for BOTH felony murder and premeditated murder.
Just because the boiler plate jury instructions state that you can vote for both felony murder AND premeditated murder doesn’t mean that voting for both in any way applies to this particular case.
These 7 people were following Juan Martinez’ interpretations while the remaining 5 were at least considering some of the defenses’ arguments.
All this is the Holy Grail of the Jodi Arias case.
Remember the list of 16 predicate felonies?
If you or someone with you causes the death of a person in the course of one of these dangerous felonies, the killing is elevated to 1st degree murder. You could say that 1st degree Felony Murder is when a person commits a 2nd degree murder in the course of one of these dangerous felonies.
Notice that 1st degree premeditated murder is not on that list. Premeditated murder cannot be the predicate felony for felony murder. Assault with a deadly weapon also is not on this list. Assault can be the further intended felony that’s required in 2nd degree burglary, but it cannot be the predicate felony for felony murder.
So, 2nd degree murder and 1st degree felony murder have A LOT in common. Also, 2nd degree murder and 1st degree premeditated murder have A LOT in common, particularly when the period of cool deliberation or reflection is very short.
This caused a legal expert to say:
“The point is that in jurisdictions where no time is too short to support a finding of actual thought and reflection, sufficient to establish premeditation, the dividing line between first and second degree murder is extremely murky, to put it mildly”.
They could fear that they would lose the case. Remember, Juan Martinez, as shown in his prior and current cases, will cheat even when he has a slam dunk case. (State vs. Morris, State vs. Dixon, State vs. Gallardo, State vs. Lynch). But we know that Juan will cheat even more when he fears he may lose the case (State vs. Falater, State vs. Grant, State vs. Carr, Robert Towery commutation hearing, State vs. Chrisman).
For Juan Martinez, not getting a 1st degree murder conviction would be a LOSS in the Jodi Arias case. The Death Penalty would be off the table and Jodi Arias would get out of prison one day. That’s unacceptable to the prosecution. This case has been widely viewed throughout the United States and the world. People are getting a good look at Arizona Justice, and this trial was on live TV. Also, the 2nd penalty phase will be available on video and transcripts after the sentencing.
This case is a very big deal in Arizona. There are plenty of biblical law types, who demand the most severe punishment possible when a woman kills a man. The Mormons are a very powerful political base of themselves, and they support the ultra conservative right which reigns supreme in Arizona. Woman’s Death Row just lost one woman (due to a wrongful conviction), so there are now only two women on Death row in Arizona. Isn’t it awful expensive to run a maximum security Death Row for only two women?
Remember that Juan does not like to lose a case, and anything less than 1st degree murder would be a loss. Remember also that Juan did not really have a handle on the gas can situation until late in the trial. As things stood in 2011, this is too risky for a guy like Juan. He wants every advantage possible. He got that advantage by changing the order of injuries and not dropping the felony murder charge, for starters.
Now, I hope you can understand this just a little better and we hope you will start to see why we consider the retention of the felony murder charge, along with the one-two switcheroo of the order of injuries to be the Holy Grail of wrongdoing by the prosecution.
What is YOUR opinion?
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