Jodi Arias and Mitigation

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Jodi Arias hears the verdict: Murder 1   Pool photo

Now that the "guilt" phase of Jodi Arias's trial is over and she is a convicted 1st degree murderer, we are trying to move into the "aggravation" phase.

I say "trying" because it was supposed to begin on Thursday, but was mysteriously cancelled while we were waiting in the hall outside locked courtroom doors. The reason for the cancellation may have something to do with the exclusive interview Arias gave to Fox10's Troy Hayden, less than half an hour after she heard jurors convict of her of pre-meditated murder. Or it may not. All is speculation right now.

But in that interview Arias herself spoke directly about the mitigation process. She told Troy Hayden that she has "no mitigating factors." I'll come back to that. First I'd like to explain more about the process.

For 4 months, people have observed a woman who sits behind the defense team and often interacts with Arias during the breaks and also with her family. She is the mitigation specialist. While Nurmi and Wilmott, Arias's defense attorneys, are there to give their client the best legal advocacy they can, Arizona law affords her one more chance on top of that. 

Mitigation is not about guilt or innocence. It is about mercy. So the mitigation specialist is rarely, if ever, a lawyer.  The person who fills this job is more likely to be a trained social worker or counselor. This person puts together an extensive report on the defendant's background and/or accomplishments.

Jodi Arias told Troy Hayden with bitter irony that her mother "didn't beat her hard enough" therefore she has no pathetic childhood stories with which to touch the jurors' heartstrings. 

But Arias is missing the biggest point of the entire mitigation proceeding. The most effective thing a convict can do to mitigate their sentence is to show humility and remorse. 

This is what worked for Sam Dieteman, one of Arizona's notorious serial killers. Did you hear that?  A serial killer.

I am not here to be defending or admiring Sam Dieteman in anyway. He did some horrific things and caused incalculable human sorrow (< < click thru) and laughed while doing so. But once he was caught, he had at least enough remorse to confess. He pled guilty without any deals and spared the community a long trial. Dieteman cooperated with the state by testifying against his former "buddy," Dale Hausner, all the while knowing the state still intended to try to get a different jury to give him the death penalty when they were done with Hausner. 

Dieteman's testimony in the Hausner trial was compelling. He told the jurors that he had become a "piece of shit" prior to his incarceration. He did not blame Hausner for his own degeneration. He appeared in stripes and chains before the Hausner jury, not cocky and never sparring with the attorneys. He told jurors that he believed in the death penalty and that he deserved it.  

A few weeks later, the same attorneys who had called him as a friendly witness asked for his execution in front of a different jury. Dieteman knew they would. His demeanor before his own jury did not change from the Sam we had seen helping to convict Dale. But this second jury was moved to mercy.  It was not Dieteman's less than stellar childhood that did it. It was Dieteman's lack of defiance and refusal to defend his own despicable acts that stayed their hands.  Sam Dieteman did not get the death penalty though he killed more times than did Jodi Arias.

So far Jodi Arias has displayed less remorse than a serial killer. 

When her lies had caved in on her and she sat with Troy Hayden in a basement cell well below the fifth floor courtroom Wednesday afternoon, Arias could have embraced the truth at last. She could have used Troy's cameras to tell the world how sorry she was that she had taken a life. She could have expressed a sense of shame and sorrow. 

But as people all over the world have seen by now, the only sorrow on display was a brief moment when Troy asked her about her mother. Knowing she would remain behind bars instead of walking free, Jodi Arias had a sudden repentance for how she had treated her mother "not very well."  She averted her face, hiding behind her sheet of hair, and went through the motions of someone overcome by emotion.

"I can't talk right now," she whispered to Troy, through her drapes of locks. 

Mama Arias had become a much more important figure, Jodi had seemed to realize, now knowing she would not be following in Casey Anthony's footsteps, free to crash-bang her way through life on her own terms. In county jail, just about anyone is free to visit an inmate. Jodi had been receiving fans from the public so much that even her mother was denied access when Jodi ran out of allotted visits for the week. The sheriff who runs the jail is even more in love with TV cameras than Jodi is, allowing what seems to be access unprecedented in other jails across the country.  By the way, that is how the Troy Hayden interview was allowed -- it had nothing to do with Judge Sherry Stephens. The inmate is in the custody of the county sheriff and this particular sheriff has never asked a judge for permission to do anything in his life. 

County jail, though, is for un-sentenced inmates and short-termers. The famous tents are filled with DUIs and probation violators, not with capital defendants. As soon as Jodi Arias is sentenced, you can expect to see her custody transferred from the county sheriff to the state prison system, possibly on camera.

Arizona's Department of Corrections has a dramatically different policy toward the media than does the county jail.  A TV crew can get a state prisoner on the phone for a recorded interview, but they are never allowed to bring in the cameras for a personal interview with an inmate about his or her crime. AZDOC may allow a camera in from time to time to do a story about a new rehabilitation program, for instance. But officials there have told me they simply refuse to put inmates up for individual stories "about my life and times in crime," as they sarcastically put it. I've made the requests myself and so have many TV crews I've worked with. So far, no results. 

AZDOC is also much stricter about who can come in for a regular visit. No longer a first-come, first-serve system where you can show up unexpected and have the inmate brought out to you, in Arizona prisons an inmate must designate visitors on a list. Each person named by the inmate as a welcome visitor must undergo their own background check by the prison. Plenty of people could be refused access to prison invitation, starting with people who have their own felony convictions. 

The visitor list is restricted to 20 people, last time I checked. So to receive any visitors at all, an orange jump-suited guest of the State of Arizona must hope for people who are both willing to submit to the background check and who will pass it.

The jail system Jodi Arias has been in the last five years has facilities that are close to downtown Phoenix or are actually in downtown Phoenix. From the airport, you could be filling out your visitor pass within 20 minutes and be seated at a restorative fine dinner 20 minutes after your visit to the grimy, smelly jail.

The prisons where Jodi Arias will live out the rest of her life, one way or another, are out in the wild boondocks, though. After your arrival at Phoenix Sky Harbor you'd have to drive another hour or so to the east, well into the desert.* The small town available to you out there is not a thriving major metropolitan city full of hiking trails and golf courses; it's a prison industry village with forgotten diners and spare accommodations. 

Jodi Arias, knowing that she will soon leave Maricopa County's convenient and accessible jails, knows she now needs her mother. Her display of repentance about her behavior to her mother could easily be seen as a last minute grasp for the one person who might be willing and qualified to go through everything it takes to stand by Jodi in the state prison complex east of Phoenix. Inside the courtroom during the trial, I have seen Jodi look toward her mother from time to time. But I never saw the message in her eyes that expressed love, connection, shame, or fear. It was more of a cold roll-call. In those days, Jodi still expected the testimony of Alyce LaViolette, Richard Samuels and her own self had washed over the jurors like a tidal wave of righteous truth. She could afford to be haughty and demanding with her mother. Frankly, I have seen more emotionally connected wordless exchanges between serial killer Dale Hausner (< < click thru) and his family in the court gallery than I did in this trial. 

The shock of her conviction left one thing clear to Jodi. Having lived on the inside for 5 years, she must know from the stories of other inmates how different it is in state prison. With her tentacles to the outside world severely clipped as the last of 12 jurors firmly called out "yes" to affirm their vote, Jodi knew she had to reel Mama Arias back in as close as she could get her.  The dip of the head, the falling sheet of hair, the "my mom is a saint" comment to Troy Hayden, seemed to me to be designed to that end.

Jodi never used the interview with Fox10 to exhibit any other remorse. Quite the opposite, she slammed the dead man yet again, over and over, with various questions that Troy lobbed to her. Don't blame Troy, he got her to reveal herself and reveal she did. 

Lead defense counsel Kirk Nurmi is the one who told her she had no mitigating factors, Jodi reported to Troy. Her communications with Nurmi are privileged so there's no way to prove it, but I personally believe that is an outright lie. Nurmi must have told her that bad childhoods aren't the be-all and end-all of mitigation.

But Jodi wouldn't have listened to Nurmi's advice on that. Just like she didn't want to listen to the advice of one of her earlier attorneys; she petitioned the court to have Maria Schaffer removed from her case years ago. It's clear Jodi didn't like Ms. Schaffer. But the attorney who successfully guided admitted serial killer Sam Dieteman clear of a death penalty was, in fact, Maria Schaffer.

There are things far more powerful than past hardship during a mitigation hearing.

Humility.

Remorse.

Restitution.

Jodi could have been funneling her art sale proceeds to the Alexander family or even to Deanna Reid at least to defray Napoleon's expenses. She could have been using her much cherished verbal intelligence to help with literacy courses for other inmates. She could have been honest on her numerous psychological exams and begun an earnest course of self-improvement. 

In her five years in jail, Jodi Arias did none of that. In her 45 minutes with Troy Hayden's cameras trained nowhere but on her, she did none of that. 

What she did reveal is what Travis Alexander himself told us from the grave as his text messages to her were displayed for all the world to see while Jodi Ann Arias was on trial. What Travis said to her is, "You only have tears for yourself."

*Much thanks to @Sandaholics for reminding me that Jodi Arias is more likely to go to Perryville, than to Florence. Perryville is west of Phoenix and is not as far. 

Jodi's statements to Troy Hayden about mitigation  < < click here 

**Link to this or any post is always welcome, but posting the whole text to another site makes me go all frowny!**