Legally Speaking: Deadlocked Jodi Arias jury forces judge to read impasse instruction

Tuesday afternoon, Judge Sherry Stephens read the Jodi Arias jury a modified impasse instruction and sent them back into the deliberation room to keep working. This clearly meant that, at that time, the second Arias jury was deadlocked.

Shortly before lunch we learned the jury had submitted two questions to the court.

Judge Stephens indicated they were complex and the answer to the questions would take time. That, coupled with the fact the jury had already asked for an exhibit list, led me to believe the jury wanted to see more evidence from the first trial or hear more testimony.

So imagine my surprise when, after lunch, Judge Stephens actually unlocked the doors and announced to a full courtroom she was proposing to read a modified impasse instruction. Although I knew this would come eventually, I wasn’t expecting it in response to a jury question.

Judge Stephens didn’t read what questions five and six were so we won’t know until after the decision is made what was asked. All we know is that whatever the jury wrote on those slips of paper led the judge to encourage them to continue to deliberate.

Deciding to give an impasse instruction is very important and significant and isn’t something to be done on a whim. Relevant case law cautions a judge about giving the instruction because giving an impasse instruction prematurely could be considered a form of coercion.

Kirk Nurmi, Arias’ lead defense attorney, objected to the reading of the impasse instruction indicating that it was clear the jury was deadlocked so a mistrial should be declared. The prosecutor, Juan Martinez, had no objection and had little to say. Judge Stephens overruled Nurmi’s objection, brought the jury into the courtroom and read the instruction to them.

Before the jury started their deliberations in this re-trial of the penalty phase, they were given Capital Case Instruction 2.4 − Duty to Consult with One Another (or a similar version):

In Arizona a capital case instruction says this:

Capital Case 2.4 − Duty to Consult with One Another

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a just verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors.

During your deliberations, you should not hesitate to re-examine your own views and change your opinion if you become convinced that it is wrong.

However, you should not change your honest belief concerning the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.

On another note, Arizona has a standard impasse instruction that says:

This is offered to help you, not to force you to reach a verdict.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a just verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and change your opinion if you become convinced that it is wrong. However, you should not change your belief concerning the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.

You may wish to identify areas of agreement and disagreement and then discuss the law and the evidence as they relate to the areas of disagreement.

If you still disagree, you may wish to tell the attorneys and me which issues, questions, law or facts you would like us to assist you with. If you decide to follow these steps, please write down the issues where further assistance might help bring about a verdict and give the note to the bailiff. The attorneys and I will then discuss your note and try to help you.

I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is possible that you could reach a verdict as a result of this procedure, you should consider doing so.

Please take a few minutes and discuss this instruction among yourselves. Then advise me in writing of whether we can attempt to assist you in the manner indicated above or whether you do not believe that such assistance and additional deliberation would assist you in reaching a verdict.

It appears Judge Stephens took these two instructions, smashed them together, shortened it and then called it a “modified impasse instruction.” After reading the instruction she simply instructed the jury to return to their deliberation room. And there they stayed for the remainder of the afternoon, minus a short break here and there. And there I stayed, outside the courtroom, waiting, waiting, waiting…

It’s possible the jury could still reach a unanimous decision, although I think it’s unlikely. If they were deadlocked before the instruction I doubt that instruction did little to unlock them.

If they were deadlocked after 26-plus hours of deliberations do you think an instruction like those above would cause someone to actually change their mind? Especially when it emphasizes “you should not change your honest belief concerning the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.”