The Arizona Death Penalty Aggravators

The Jodi Arias trial. The Aggravation of the Aggravators.

Fact based reporting

By Amanda Chen with Rob Roman

jodi blue

No, I’m not talking about “the Prosecutor” or the media. I’m talking about the laws about Capitol Murder. Let’s see how Jodi Arias came to face the death penalty.

Furman v. Georgia, (1972) was a major U.S. Supreme Court decision ruling state courts need to show consistency in how the death penalty is applied. Also in 1972, the California Supreme Court found the death penalty violated their state constitution. Both decisions involved a violation against “cruel and unusual punishment”. Charles Manson was happy with this decision and this is why members of the Manson family are still alive today.

People were getting upset about the electric chairs and gas chambers. More and more horrible stories of things going terribly wrong were getting out to the public. The decision led to a national moratorium on executions. Then in four short years, Gregg v. Georgia, (1976) and lethal injections came along and the death penalty was back in style.

Before this, other crimes such as rape could get the death penalty. Who do you think would be targeted for this penalty? The Supreme Court ruled that almost any murder and other crimes too easily qualify for the death penalty. These were randomly applied like “lightning bolts” hitting only certain people among many defendants. The trouble was the random lightning bolt was not quite random, usually hitting the poor,minorities, and cases which had become political targets.

After Furman v. Georgia, States had to come up with a statutory scheme for which murders did and did not qualify as a capital offense. This is where the aggravating circumstances such as “lying in wait” and “especially heinous, cruel and depraved” came from. There are also aggravators such as “gratuitous violence”, “relishing”, and “cold and calculated”.  Maybe some people from the Arias trial should be careful about the death penalty aggravator called “witness elimination”?

Time went on and the aggravators became more and more. Some of these aggravators, statutory conditions separating the “worst of the worst” from the rest of the killers, were so vague they were like a giant hole in the fence. Little by little grew a new way in the statutes to once again target almost any murderer with the execution.

In Arizona, the most wide-open of these aggravators is “especially cruel”. According to Arizona statute, this aggravating circumstance “cannot be found to exist unless the State has proved beyond a reasonable doubt that the murder was “especially” cruel. “Especially” means “unusually great or significant.” The term “cruel” focuses on the victim’s pain and suffering. 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.”

How many murders are there where the victim suffers no physical or mental pain, distress or anguish prior to death? This easily covers my grandmother and almost any murder unless the victim has no idea what is happening and is killed instantly. At least, the Mafia and assassins are safe. In Arizona, you only need a single aggravator to be eligible for the death penalty. It should then be no surprise, that the gateway to the death penalty for Jodi Arias was the single aggravator of “especially cruel”, the largest hole in the fence.

No doubt, Travis Alexander suffered and experienced pain, but this aggravator calls any pain or suffering “extreme”. Here are the appeal reports from other Arizona cases where cruelty was an aggravator:

van adamsState v. Van Adams, 194 Ariz. (1999)

Cruel: Upheld. There was significant evidence that a struggle took place between the victim and her assailant. There were damaged candles and candlesticks in the bathroom, buttons and semen stains in the closet, bruises on the victim’s neck, the defendant had a black eye and a facial injury, paint and ceramic chips in the bathroom and the bed, the victim’s torn and knotted clothing, and injuries on her hands and wrists. There was also medical testimony that it takes from ninety seconds to two or three minutes for a strangulation victim to lose consciousness and that some of her injuries were  inflicted prior to her death.

State v. Andriano, 215 Ariz. 497 (2007)

az_andriano_wAndriano stood by for approximately forty-five minutes as Joe suffered from the effects of sodium azide poisoning. Andriano’s Internet research on sodium azide and the warnings accompanying the shipped chemical demonstrate that she knew or should have known that poisoning her husband with sodium azide would cause him physical pain and mental anguish. Joe, who was conscious during this time, as evidenced by his interaction with Chris, undoubtedly “experienced significant uncertainty as to [his] ultimate fate

Moreover, Andriano struck her terminally ill husband at least twenty-three times in the back of the head with a bar stool. Defensive wounds on Joe’s hands and wrists indicate that he was conscious for at least some of the attack and thus knew his wife was attacking him as he lay on the floor, unable to defend himself. Andriano also knew or should have known that beating her husband with a bar stool would cause him physical pain and mental anguish.

efren medina

State v. Medina, 193 Ariz. (1999)

Cruel: Upheld. The victim’s cries right before being run over by the defendant’s car indicated both physical and mental pain and suffering.

Heinous or Depraved: Upheld.

Relishing: Found. The defendant’s laughter and joking about driving over speed bumps shortly after the murder, and looking forward to the publicity generated by his crime indicated that he relished it.

Gratuitous Violence: Found. The medical examiner testified that the victim had been run over twice by a car, and that he died after the first pass. The defendant told his girlfriend that he had run over the victim three times and that the victim’s head turned a different way with each pass.

sharpState v. Sharp, 193 Ariz. (1999)

Cruel: Upheld. The trial court found cruelty based on the great physical and emotional pain suffered by the victim when she was sexually assaulted and murdered. The victim here was conscious and suffered physical pain while she was brutally beaten, sodomized and strangled. The victim had defensive wounds and scratched the defendant in an effort to defend herself. This shows that she anticipated her fate and suffered mental anguish during the attack.

How is the comparison? Two of these typical cases involve a terrifying and very prolonged struggle with numerous assaults and even rapes before the violent murders. One case involved the poisoning of a man, a refusal of medical help, and a prolonged and brutal beating to death. In the case where the man’s head was run over, he was first terribly beaten then stomped on over an over. He could clearly see what was going to happen to him over an extended time and he had no chance to defend himself.

Even the higher courts have already addressed the idea that this aggravator is “facially vague”. Defendants have regularly appealed this vague aggravator to the higher courts and even the U.S. Supreme Court. The higher courts have generally upheld this aggravator but found that clear “narrowing instructions” were the key to allowing the jury to make an informed decision.” “Jury Instruction: Arizona’s (F)(6) aggravator is facially vague but may be remedied by appropriate limiting instructions. See Walton v. Arizona, 497 U.S.  (1990), overruled on other grounds by Ring v. Arizona 536 U.S. 584 (2002), Ellison, 213 Ariz.”

“We have approved narrowing instructions for the “especially cruel” aggravating factor that require the jury to find that (1) “the victim was conscious during the mental anguish or physical pain” and (2) “the defendant knew or should have known that the victim would suffer.” Does this sound familiar to you?

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I saw a documentary where one prisoner attacked another. The victim was stabbed 12 times in three seconds. It is certainly not one or two seconds per stab wound, like they showed on HLN “After Dark”. The reality is that Travis Alexander, besides a brief time at the sink, was killed in just seconds, a minute and some seconds at the most. Yes, he had apparent defensive wounds and he was in pain and knew he was under attack. But “especially cruel” is the single gateway that makes the chance of getting the death penalty a reality for Jodi Arias. Should this gateway be so wide for a person in an abusive and tumultuous relationship who’s greatest previous crime was a traffic ticket? A person who’s “very worst deed” is the complete opposite of the way she lived her life?

We know that at least one juror added non-statutory aggravators to the single aggravator found by the jury, a clear violation of the jury instructions and Arizona law. But does that really matter? If she understood the instructions, she would still find that the single aggravator outweighed any mitigators. Once Jodi Arias was found guilty of 1st degree murder, the aggravating factor was sure to be found just by looking at the autopsy photos and the bloody crime scene photos. Given the large hole in the fence and Juan Martinez’ theatrics, how could any jury find that this wasn’t regular cruel but especially cruel?


According to the statute, regular cruelty means victims are unaware they are being killed and do not suffer at all. It’s still murder. Is that what “regular cruel” should mean? Ironically, as now interpreted, lethal injections are more “humane” but perfectly fit the Arizona statute for the aggravator of “especially cruel”.

(1) “The victim was conscious during the mental anguish or physical pain.” and

(2) “The defendant knew or should have known that the victim would suffer”.

Some women claim that they are victims of domestic abuse and there is “no way” Jodi Arias was a victim of abuse. Others think this crime was a typical heat of passion domestic homicide. Many women especially believe that Jodi Arias deserves to be executed and it’s part of equality that women should pay the same price for their crimes as men.

What about domestic homicides? Here are some interesting statistics from the Huffington Post. In Afghanistan and Iraq, the number of U.S. troops killed is 6,614 .

In that same period, the number of U.S. women killed by domestic violence is 11,766.

Is that a little unsettling? In the US, there are around 1,100 domestic violence homicides per year. There are 100 domestic violence homicides every year, and year after year, in Arizona. Doesn’t that sound high for this one state?  Why is the rate so high in Arizona, the state that is very “tough on crime”, and has by far the most death penalty cases on the dockets? How many of these victims do you think are female? I will give you a hint: almost all. How many of these murders fit the death penalty aggravator of especially cruel?  Hint: almost all. How many of these do you think were tried as capitol murder cases? Hint: almost none.

electric chair

The Eighth Amendment to the U.S. Constitution forbids “cruel and unusual punishment”. Furman v. Georgia defined this among other things as “a severe punishment that is obviously inflicted in a wholly arbitrary fashion.” and “a severe punishment that is patently unnecessary.” Appeals concerning these ever growing and loosely defined aggravators keep going up to the higher courts, but the aggravators are largely upheld.

(Recent Additions to Aggravating Factors: Effective August 12, 2005, the Arizona Legislature added four new aggravators – (F)(11), (F)(12), (F)(13) and (F)(14).  The Supreme Court upheld the (F)(13) aggravator in State v. Hausner,)

F 11 = “gang activity” F 12 = “interfere with law enforcement” F 13 = “cold and calculated” F 14 = “use of stun gun”

Kirk Nurmi also filed an appeal concerning the cruelty aggravator. Until Ring v. Arizona (2002), the judge decided what was especially cruel. The language of the statute was written with a judge in mind. Judges have a much better idea than a jury of which murders are especially cruel. Some jurors have never even seen a photo of a dead person and, of course, the killing they learned about and heard about in a very high emotion setting will be especially cruel in their eyes.

The legislature writes the vague statutes, but the jury, as part of the judiciary, is deciding what that statute means. So, Nurmi’s appeal states that because the statute is too vague, the judiciary branch is taking the power to decide the law away from the legislature. It’s an interesting appeal which the higher courts may take up.


In the mean time, Jodi Arias and the Alexander family will have to endure more aggravation and emotional trauma to complete the sentencing phase to learn if she will live or die. Only then might the appeals be heard. Jodi will stay in her cell most of the day, eating those peanut butter and crackers, quietly making her artwork, answering some postcards and reading a few books about law.


Unlike most blogs, ALL comments are accepted and will be posted.


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