Legally Speaking: The end for the Jodi Arias retrial? Jury instructions coming

Judge Sherry Stephens will read the final instructions to the jury on Tuesday morning. Then Kirk Nurmi and Juan Martinez will have their last opportunities to convince them to see the case from each of their views.

Nurmi, Jodi Arias’ lead defense attorney, will explain the difficulties Arias has experienced in her life that led her to that fatal night back in June of 2008 when she murdered Travis Alexander. He will meticulously go through the mitigating factors and the testimony that supports each of those factors. In conclusion, he will ask the jury to sentence Arias to life.

Martinez will then have his chance to presumably reiterate the graphic details of the murder, complete with pictures, then move into attacking the credibility of Dr. Robert Geffner and the computer expert all while enforcing the conclusions of his experts, including Dr. Janeen Demarte. He will drive home the facts about the gas cans, the rental car, the hair color, the sheer brutality of the murder and the lack of credibility of the defense experts.

Each attorney will refer the jury to the instructions and explain why Arias deserves death or life.

The jury will be confronted with a lot of argument and a lot of information, though one thing they will not be confronted with is Arias herself.

In a criminal case the defendant has the opportunity to allocute once they have been found guilty. In other words, Arias has the chance to formally address the jurors directly and say almost anything she wants. She can apologize, give reasons for what she did, rant, cry, ask for forgiveness, declare her innocence or be defiant; and she can do it all without being subject to cross examination. She did this in the last trial with her PowerPoint presentation. Some criticized it by saying it was devoid of remorse, but it could have been the reason the jury hung.

In court Monday Judge Stephens addressed Arias directly and stated that it was her understanding from speaking to Nurmi and Jennifer Willmott that Arias didn’t want to allocute. Arias responded by explaining she did want to address the jury but she wanted to do so in private.

The judge explained to her that wasn’t allowed due to the Court of Appeals decision that she wasn’t allowed to testify in secret. Arias responded by stating it was her belief that “testimony” was different than “allocuting” so the decision didn’t apply.

Splitting hairs.

Judge Stephens offered to close the courtroom and mandate the media and public view her allocution from the viewing room on the first floor of the courthouse. Arias refused this offer by stating her reasons for wanting to do this in secret were the same as she explained to the court in October.

Judge Stephens then asked her a series of questions to make sure Arias understood her rights and the ramifications of her decision including asking her if she had taken any medication. Arias stuck to her guns and refused to address the jury unless it was in secret.

So, what exactly are the reasons for Arias wanting to address the jury in secret?

Those reasons were discussed behind closed doors back on Oct. 30, 2014 immediately before her two days of secret testimony.

Arias explained to the Judge:

“Well, I have received several threats over the last few years. A lot of crazy people come to the jail and try to visit me, and some of the threats are of the nature very specific as far as different things that I — if you say this, than this; and if you say that, than that. I can give you some specifics if you want…So I’m not able to testify in the way — in the way that I would need to testify as far as being open and honest because of the pressure that I would feel because of these threats…I don’t think I would be able to testify…knowing that my testimony would be out there as well because it could affect me in the future.”

Judge Stephens responded, “So it is not just the presence of the public and the media in the courtroom that you find intimidating? It is the fact that they will hear what you have to say, period. That is of concern to you?”

To which Arias agreed.

Later in the conference Nurmi jumped in and added “[B]ut at the same time we have to judge the concerns Miss Arias has from her psychological shortcomings. Like I said at bench, we have a diagnosis of Post-Traumatic Stress Disorder. We have a diagnosis of Borderline Personality Disorder. So we are not dealing with the mind of a mentally stable woman who has these concerns. So when she is advancing these concerns — whether they may seem illegitimate to all of us, they are legitimate to her; and I point that out because then the legitimacy to her affects her ability to move mitigation forward, to present a full and complete case for her life.”

Arias also explained, “It is about am I able to express the truth in the way I need to express it or will that be cramped because of the pressure that I’m feeling because of the threats that I have received.”

The arguments swayed Judge Stephens, although just before closing the courtroom and allowing Arias to testify in secret, she did admit on the record that, “Well, I acknowledge that I believe this is a manipulative tactic; and I have concerns about the genuine reason for the request to close the proceedings.”

As of right now Arias has decided she won’t address the jury; however, that doesn’t mean she won’t change her mind overnight. If she does appear in court on Tuesday asking to address the jury my guess is that Judge Stephens will allow her to do so. After all, it is a capital case.

If that were to happen, Martinez could end up having a chance to introduce more evidence, which would then cause the trial to, you guessed it, keep going.

Bottom line — if Arias doesn’t change her mind and if Nurmi and Martinez finish their arguments, Tuesday could be the beginning of the very end of this trial.