Wednesday, May 22, 2013

If at first you don't succeed, try, try again. Well, at least try again once.

Gosh darn it, I keep finding interesting tidbits out from the Jodi Arias case. And since I have full use of both my eyes and ears, it's hard to avoid coverage. But the interesting tidbit is not about Arias herself, but rather about how Arizona operates its death penalty cases.

In a guilt phase of any trial, if the jury is unable to reach a unanimous verdict, the jury is hung and a mistrial is declared. Much as I dislike it, the prosecution is allowed to retry the case over and over until a jury reaches a unanimous verdict. Sometimes, they give up after 2 or 3 hung juries. Sometimes after 4 or 5, the defense can argue double jeopardy should kick in eventually and the case should be dismissed.  If I had my way, the prosecution would get one chance to convince 12 people of the defendant's case beyond a reasonable doubt. But that is a rant for a different day. Focus, Sarah.

In the sentencing phase of a death penalty trial, the jury (in all but one state, to the best of my knowledge, Florida being the outlier) must be unanimous to sentence the defendant to death. (Florida only requires 10 votes for death.) Anything less than that, and the defendant gets life. Defense attorneys the nation over are perfectly satisfied with 11-1 or 10-2 votes for death as that means their clients will get life. That's how it operates in Kansas and from my understanding the prevailing procedure: that a non-unanimous jury means a life sentence.

So I was curious when I saw that a deadlocked jury in the Arias case would mean the Court would impanel a new jury to hear the sentencing phase again. Huh? Turns out, by statute, Arizona allows the prosecution one second shot at getting a death sentence. If the first jury doesn't agree on a sentence unanimously, a new jury is selected and the sentencing phase is re-done.

Arizona's sentencing phase is actually done in two stages, the first being where the jury determines whether the prosecution has proven an aggravating factor beyond a reasonable doubt. Then after the jury comes back on that question, if they find the aggravator was proven, they move on to hearing the defense case in mitigation. I haven't researched exactly where the new jury picks up. My sense is that they just start the entire sentencing phase over from scratch, which from an evidentiary point of view they have to do anyway as the new jury is (theoretically) unaware of the real facts of the case and so needs to hear some limited presentation of the facts.

Then if the second jury is also unable to agree on death unanimously, that ends the death sentencing proceedings. The judge then decides the sentence, choosing between life without the possibility of parole or a life sentence with parole eligibility. It's that statutory provision for a second jury that makes Arizona quirky. It's possible that other states allow for this, too, so now I'll have to do some research.

I'd be curious to know how often prosecutors who are statutorily allowed to impanel a second jury actually choose to do so. It's a cumbersome and expensive process to select a jury for a capital case. I wouldn't be surprised to learn that Arizona prosecutors more often than not decline to prolong their cases by trying the penalty phase a second time. Or even that the family members of victims go to the prosecution and say, "Please just stop it. We're drained and can't take it again."

If any Arizona attorneys are reading this and have some idea on how often prosecutors drop the death penalty after the first jury hangs, please let me know. Or if you practice in another state that allows a second jury to be impaneled, I'd like to know that, too.

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