THE COUNTENANCE OF POLARIZATION Day 44 WHY NOT KILL HER

CHRIS AND SKY HUGHES INT. 4.13.15WHY NOT KILL HER
By #PaulSanders

#TravisAlexander & the Jodi Arias Retrial: A Juror’s Perspective

DAY 44

“THE COUNTENANCE OF POLARIZATION”

 

The jury for the Jodi Arias death penalty retrial submitted juror questions to the court. There was a buzz in the air as the court assembled for its impromptu proceedings. I saw Kirk Nurmi and Jennifer Willmott make their way to the defense table. Maria de la Rosa followed them wearing a black dress and blouse with a patterned red color running down the center. Jodi Arias was led in from a side door with an armed guard that brought her to her seat, next to her mitigation specialist, Maria de la Rosa. She was wearing a dark purple sweater top with loose fitting black pants.

Juan Martinez and Detective Flores sat at the prosecution table. Juan Martinez had his arms resting on the desk with his fingers clasped. He was wearing a dark blue suit, white shirt and peach silk tie.

The family of Travis Alexander was assembled in the front three rows. Chris and Sky Hughes sat with the family along with former jurors from the Arias trial of 2013. I knew there was nervousness in the air, as this was not the first time the family had assembled for juror questions, during this trial, or the prior one. Each knew it was best not to speculate, but that was a much easier task said than done. They carried themselves with fortitude and strength just the same.

Media filled the three rows behind them. They did not carry cameras but instead had their laptops open and smart phones at the ready. A camera was perched to the left of them peering out about two feet behind a wall that shielded a view of the jury box.

The family of Arias was in the front rows and the public sat behind them. I was readied with my pen and legal pad. Since I had been a juror on the DeVault trial, a remarkably similar death penalty trial, I was especially attuned to the questions. I knew each question, was agreed on by the jury prior to being submitted. These questions would provide a window as to where they might be leaning.

We stood as Randy, the bailiff commanded when Judge Stephens appeared from a door behind her bench. We sat as she sat. She assembled some papers and looked at the attorneys. Mike, the court reporter wearing a bright fuchsia button down shirt, was readied at his machine.

“For the court record, outside the presence of the jury,” Judge Stephens said as she leaned forward toward her microphone, “jurors have submitted questions that we will note as Question Five and Question Six. We are also hearing legal argument on a modified in-house instruction for the jury. Proceed, counsel.”

Kirk Nurmi stood up. He had some papers in his hand. He is tall and dressed in a dark suit. I can see the salt and pepper color of his hair and know he is leaning forward slightly as he speaks as if he is inspecting something closely. “Your Honor, the defense objects to the modified instruction. We also want the question sealed regarding the impasse with the jury…”

I was writing my notes furiously and I struggled to understand if I had heard the word impasse. Butterflies jumped in my stomach because it was the last word I expected to hear and I am sure that it was a word the family of Travis Alexander did not want to hear.
The defense attorney continued as he cited precedent from another capital murder case. “Each juror, not being able to bring in a moral assessment, is critical for the court to recognize. The case states that given the content of a jury impasse that no lawful resolution can be had. This is cause for a mistrial,” Nurmi finished vehemently.

Judge Stephens looked at Juan Martinez. “The State response?” she queried.

The prosecutor stood up without the knuckles of his hands leaving the table. “The state has no objections,” he responded.

“Denied,” Judge Stephens said firmly. She stacked some papers, put them in their spot and turned back toward the court. “Bring in the jury.”

The courtroom was tense as the bailiff, authoritatively walked across the courtroom to open the door for the jury. They marched to their seats and many did not end up in the seat they were originally assigned. The seats of alternate and dismissed jurors looked to be many even though it was only five.

I watched the jurors’ faces and they looked stern. I wondered how many arguments they had quibbled through to get to the point that they had reached an impasse.

Judge Stephens looked in their direction as she spoke to them. “The court has received two questions from the jury. In regards to the impasse, we are giving you additional juror instructions. These instructions are not intended to force you to make a decision either way but to apply a way for the court to help.”

She looked at the jury, straightened her glasses, and continued reading from a document in front of her. “The court suggests that you must consult with each other. You may want to identify the areas that you agree or have disagreements. Look at the law and look at the evidence. If you still find that you disagree, send a note with those areas of concern and we will try and assist you. The court would ask you to return and continue deliberating,” she finished.

She put her papers down and looked at the jury again. “This court is in recess.”

I watched the jury as they left and their faces showed nothing. I glanced at the family of Travis Alexander as they gathered their things and they did not show emotion as they went about their way to leave.

I felt emotion deep inside at first. I was sure that this jury would automatically do as I spoke of yesterday, and begin a long journey through the evidence sheets to determine if Jodi Arias should receive the sentence of death. It seemed that it was too short a time to make a decision that they had reached an impasse. For some reason, I was sure that this jury would not hang. I felt like the months and months of seeing the path of evidence would surely be obvious to the jury. How could they even hint they were going to hang? The frustration could only be a surface of the feeling the family must have felt.

Our jury, in the search for justice for Dale Harrell and his murder by Marissa DeVault, did feature one verdict on which we were hung. Our jury of twelve rendered three verdicts in the trial of DeVault. The first verdict came in the form of convicting the defendant of first-degree murder. We notified the court that a verdict was reached and an hour later, it was settled by the court as a guilty verdict. We were surprised when Judge Steinle III read two questions to us and sent us back to the deliberation room without the presentation of any additional evidence.

The two questions we had to answer came in the second phase of the trial. The jury answers these questions and a positive result will make the defendant death qualified. We, as a jury, were only given the task to answer the two questions:

“The defendant has been convicted of first-degree murder. Was the murder cruel and heinous?” the first question generally asked.

Surprisingly, we had to take the weekend to think about the answer because a juror asked, “What is the difference between dying by a gun, a knife or a hammer? What makes it cruel and heinous?”

It did not take long to decide the cruel and heinous nature of the death of Dale Harrell, just as it did not take the first jury long to decide that question in the death of Travis Alexander.

The second question we had to answer in phase two of the DeVault trial: “Was this premeditated murder done for pecuniary gain?”
Our jury went in circles on this question of whether DeVault had killed Dale Harrell for a monetary or like gain. Our path of evidence suggested that she had killed for insurance monies. We had an alleged accomplice who claimed he gave her $300, 000 over a twenty month period. He kept a daily ledger of every penny he “loaned” her. However, the prosecution failed to show the monetary manifestation of that money by not giving us the killer’s bank account records. We only had the word of an accomplice, whom we did not trust, that she received money. It was further complicated by the fact that we did not see new car purchases, clothes and all that comes into the spending of what became an “alleged” amount of money.

We hit a point in deliberations where most of the jury thought that she killed her husband for the money, while the others thought she had killed in a fit of rage and she snapped. Premeditation had been determined but some thought the actual killing came at an unintended time. Even though she was planning to kill him, an argument coincidentally caused her to snap the night of the murder. This was an extremely difficult dilemma so much, that we submitted to the court that we had reached an impasse. We were summoned to the jury box after we submitted the question and Judge Steinle III immediately returned us to deliberations to discuss the problem some more.

The twelve of us went to the jury room and could not get past the pecuniary incentive of the murder. We were divided on the area of having no manifestation of the money as shown by the lack of evidence and we had others who believed, firmly, that it was shown circumstantially. We could not agree in spite of two other verdict decisions we had reached.

Subsequently, came the time Cherie finally had to admit defeat as a foreperson and completed the verdict form saying there was no agreement. I can comfortably say that each of us felt like we had honestly done everything we could to reach resolution. We had found ourselves searching for truths and many of us came up empty-handed. We were upset at ourselves but held firm in the convictions of whatever side of the matter we held. Although our places in judgment were rooted well, it also meant that voices were raised in times of debate.

We held our heads high as we entered the jury box, but inside it was the most uncomfortable feeling in the world not to find justice for Dale Harrell and those who survived him. We knew she killed for the money but lacking evidence that we could see, touch and feel forced us into an undesirable position. The law told us we had to follow it and each of us in our own minds did just as specified.

“Is that your final decision?” Judge Steinle asked us from the bench.

The jury was polled and we agreed that we failed to make a decision for the pecuniary or financial motive in the killing.

I cannot tell you the relief and surprise we felt inside when we learned moments later that the trial would continue into the third phase. The third phase only needed one of the two death penalty qualifiers for a verdict to be reached. Like Arias, it was decided that we would determine the fate of the defendant because the death of Dale was determined to be cruel and heinous.

On the other hand, in the face of the Arias jury, I had to expect that this had to be a brutally difficult position for each of them to find themselves in. I am certain that none of them thought this was a possible outcome at the outset of the trial.

It took us awhile, as a jury, to understand that our path of decision-making in the third phase came simply down to two lists with “Aggravating” listed on one side and a column for “Mitigating” on the other. It was the simplest path to understanding in a phase that lacked evidence that a juror could see, touch and feel.

The intangible factors third phase become a balancing act in decision-making based on individual life experiences. It is those experiences that were found to be important by attorneys of both sides five months prior. It is not until the third phase of a death penalty trial do these factors become critically important. All must agree on the outcome of the verdict but the path to get there is different because each juror’s life history is different. These experiences determine the value each juror may give to a mitigating factor.
DeVault gave our jury a statement of allocution in a plea for life. As a jury, we had to consider if this statement established one or more mitigating factors as to the defendant showing remorse and ownership of the crime. Many of us agreed that she did and there were others polarized against it saying it did not display genuine remorse. We learned that the path to get to the decision of life or death is individual. Only one mitigating factor is needed and many of us thought the welfare of Dale Harrell’s children to be a mitigating factor.

This jury has a great disadvantage in that they have not had the opportunity to walk the complete path of three phases in unison. As a former juror in a similar death penalty trial, I learned that each phase gets progressively more difficult. The third phase, that of having the responsibility of choosing whether a defendant must live or die, is the most difficult of all the phases and took us the longest period to reach in consideration of the times deliberating in the other phases.

It is not a question of a shadow of a doubt but rather a journey through a preponderance of evidence that leads a jury one way or the other, and the caveat, which polarizes, is based on an individual moral assessment and that assessment can vary wildly among individuals.

The question of determining whether someone else lives or dies is derisive to depths of the soul, religious affiliations and that of a juror’s spirituality. It is a simple question to some and amazingly difficult to others. The juror is a human being and all are different. It is what makes the jury system great while, simultaneously, showing its greatest weakness. The greatest weakness in a jury is that it is comprised of human beings, who come from a vast array of life experiences.

Today was the first day that I saw a result in this trial that I had not believed feasible or possible. Yet, this trial has revealed surprises at every turn and most of those surprises feel as if they have been to the detriment of Travis Alexander and his family. An unexpected result could be expected.

The jury in the case of Marissa DeVault decided that, in spite of the brutal killing of Dale Harrell, mitigating factors existed that reduced the defendant’s culpability. The children’s welfare was considered a mitigating factor to us after we asked the court if it was to be considered. I was sure our verdict was given away at the submission of the formal question even though Judge Steinle merely told us to go back and review the law. Our other mitigating factors included the fact that the pecuniary segment of the case was not proven. Some of us thought that the defendant was more likely than not, sexually abused by her first stepfather. With my history of being a survivor of child abuse, I gave it more weight than other jurors because my life experience told me those factors existed.

DeVault’s statement of allocution revealed the two important factors of remorse and her recognition of the damage she had caused to his survivors. Again, not all of us recognized those factors.

In spite of all of the above, many of us felt that we may not have come to the right decision. Maybe she did deserve to die and we placed too much weight on any one of those factors. I think the levying of death may have yielded the opposing insecurities.

On the day of Marissa DeVault’s sentencing, June 6, 2014, five of the jury attended. We had reached a verdict of life in prison for the defendant. Many of us had not realized at the time of deliberation that our life decision would go the desk of Judge Steinle. He would determine if the defendant would get life in prison with or without parole. Cherie, for one, was irritated that she did not realize that this option would happen. She, like me, prayed the judge would give her life without parole at sentencing and he did just that.

Afterwards, Judge Steinle came into the hallway after the defendant began her steps to start the rest of her life locked up forever. He first approached Mindi Harrell and the family and friends who had come to witness justice in the best way it could be served. At some point, he made his way to the group of jurors who had been with him all along the way. It is an honor for a juror to finally meet the judge of their trial and the questions were many.

“Listen,” he said after a time, “I don’t know if you know this, but you made the right decision.”

“How so?” Cherie asked him. “Part of me still thinks she should have been punished with her life.”

“Let me tell you something,” he said. All five of us surrounded him with rapt attention. “Do you realize that if you had given her the death penalty, it would have had a seventy percent chance of being over-turned?”

“Our case?” she asked, surprised.

“No,” Judge Steinle corrected, “all death penalty cases have a seventy percent chance of being overturned.”

“Really?” I offered.

“Do you know what chance a life term is historically turned over?” he asked us.

Most of us answered that it was probably forty or fifty percent.

Judge Steinle shook his finger at us. “A life sentence has a one percent chance of being turned over.”

We were stunned while simultaneously relieved.

“Think about this, as well,” he added, “consider that the children of DeVault would have had to return to this process with every appeal. This process can take a quarter of a century and requires dozens and dozens of return visits to court over the years. The survivors would never be able to shed the process of going through a death penalty. This is good because she is locked away and can hurt no one. The children can grow and it is their choice whether they want to see her again.”

Whenever I reflect on the brutal killing of a wonderful man named Dale Harrell, the judge’s words give me great comfort and I can live with the decision that we made. It is now that I think I am starting to wonder the same with Arias. There is a part of me that says there may be a better result. I do not know and I care to not think of it until the next words from the jury.

At the conclusion of the procedure, we all left the courtroom and took our positions on the benches in the lobby of the fifth floor. Reporters were busy on their laptops and many were tweeting on their iPhones. I was just sitting down when I saw Chris Hughes seated, facing the window overlooking the walkway between the two courthouses, a look of pensiveness on his face.

Chris and Sky Hughes were Travis’ best friends and had attended the trial for most of the five months. I was honored that we had built a friendship throughout the process. I walked over to where Chris was seated and sat down. For some reason, I told him the story of Judge Steinle and his response to us at the sentencing of DeVault. In those few minutes with Chris, we found comfort, albeit miniscule at the time, in the words of another judge. For a moment, it gave us hope that the better result might be what had eluded us all this time.

I realized on my drive home when the Grateful Dead came on the radio that something had changed in me throughout this trial even though the journey was not complete. I could not put my finger on it. Previously, through the journey of the DeVault trial, I had learned that there could be no good ending in a murder trial, no matter the result of a jury decision because at the end of the day, a victim lies buried and a family is forever scarred with a memory of a great young man.

The words of Truckin’ played while tears came out of my eyes. “What a long strange trip it’s been…”

I thought back to very early on in the trial for justice for Travis Alexander. I remembered the sex tape but not for what most people might. The tape played over the speakers and I took my notes on my legal pad.

Travis was speaking to Jodi. He was a little tired and a little punchy. He spoke softly into the phone and at some point he began singing the lyrics to The Grateful Dead’s Truckin’. The court listened while his words of Garcia were sung in tune, sleepy in their execution.

As the song played over my speakers, I remembered I had cried silently in court while feigning taking notes. Rooted in my past, are my followings of the Grateful Dead and understanding what it was to be a Deadhead. This is a bond that I will always have with Travis Alexander. The sound of his voice singing an old song resonated personally in my heart as only my soul can understand.

In that drive home, I realized that there was something of Travis Alexander that would remain in each of us and each of the jurors. I could only hope that it would be something good.

We cannot predict the result of deliberations between twelve strangers. We cannot be in the room directing their focus in arguments. It is up to those twelve and for whatever decision they make, we have to trust that justice will be served. We may not see the lesson now but there is a great lesson in all of this.

In the meantime, I could only surmise the surface of pain that was deepening its scar on the family of Travis Alexander as they waited for a jury that had reached an impasse.

“Every good relationship that has developed as a result of this trial is the manifestation of the Spirit of Travis Alexander.”

Justice 4 Travis Alexander…
Justice for Dale Harrell…

Paul A. Sanders, Jr.
The 13th Juror @The13thJurorMD (Twitter)

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Latest Comments
  1. Debbie Young

    GREAT insight! Though not a Deadhead, I’m intrigued by the connections of emotions that music can produce! I think you got a message of thanks from Travis through your radio that day! Excellent writing once again!

  2. Jennifer

    Paul, I think you are wonderful! Your words bring insight and clarity to a sad, dark subject. I have searched high and low for your perspective on the sentencing phase. Did I miss it, or did you choose not to write it? Thank you for all you’ve done and continue to do! Jen

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