NEWS

Juror treatment, conduct in Arias case raise questions

Michael Kiefer
The Republic | azcentral.com
Jodi Arias in court on March 5, 2015, in Maricopa County Superior Court in Phoenix.

In the wake of the Jodi Arias mistrial, trial watchers on social media have demanded that the lone juror who kept Arias from death row be investigated for juror misconduct. And Maricopa County Attorney Bill Montgomery has said that his office will "review the matter."

But Juror 17, the holdout for a life sentence, may have the legal upper hand.

Her attorney, Tom Ryan, calls an investigation conducted by the prosecutor during jury deliberations "an abuse of the office, and it's shameful."

In the wake of the post-mistrial outing of her name and address on Twitter and Facebook, Ryan said, "I believe a crime was committed by the release of confidential juror information, and we're going to the FBI to investigate."

Juror 17 has been threatened, harassed and is living under police protection. She told The Arizona Republic, "No one else is being researched but the holdout. It's upsetting and it makes you lose faith."

"I feel that as a juror I should have been protected," she said.

The Republic will not print the woman's name, even though it has been disseminated elsewhere.

Legal experts are split as to whether prosecutor Juan Martinez acted appropriately by conducting an investigation into Juror 17 near the end of the Arias sentencing retrial, when it was revealed to the court that she was the only juror blocking a unanimous verdict.

Martinez presented a screen grab of the woman's Facebook page with her name on it as evidence of perceived bias, but Maricopa County Superior Court Judge Sherry Stephens refused to remove her from the jury. The case proceeded to mistrial by hung jury.

Minutes after the mistrial was declared, the same piece of evidence — the Facebook screen shot — was posted online and sent to journalists waiting in the courthouse to interview the 11 jurors who wanted to send Arias to her death.

Juror identities are supposed to be protected. It is a crime to reveal them against their will.

It is a short list of people who were in the sealed court hearing where Martinez presented the evidence: the judge and her staff; the prosecutor; the case detective; defense attorneys; Jodi Arias; and the family of murder victim Travis Alexander.

"When I find out who outed her, it is at least a civil case of invasion of privacy," Ryan said. "Whoever did this did it with intent to harm."

Or it could be a federal case, possibly with civil-rights implications.

"There is a constitutional obligation and a right to serve on jury duty," said Larry Hammond, a prominent defense attorney and former U.S. Justice Department prosecutor.

"To interfere with someone's privacy while they are serving on a jury may be actionable," Hammond said.

The effect is chilling.

"I think we all should be concerned with the integrity of the legal process if the prosecutors are allowed to investigate jurors simply because they don't agree with them," said Arias' defense attorney, Jennifer Willmott.

"If the jury ends up saying that the community wants things a certain way, that may keep you from voting your conscience. Will you do jury duty if you will need police protection or if you need to hire a lawyer?"

It is a felony to influence or coerce or threaten a juror to change his or her vote on a verdict, but those Arizona state laws presuppose that a verdict has not already been decided.

It is also in state law that juror names and biographical information are to be kept confidential unless ordered disclosed by the court.

According to the Arizona Rules of Criminal Procedure, the guidelines for conducting trials, jurors may not be forced to disclose their reasoning, "the subjective motives or mental processes" that led them to vote one way or another in a case.

And in capital-case jury instructions, jurors are informed that they do not have to come to unanimous decisions as to the weight of mitigating evidence that may persuade them to vote for or against a death verdict.

In fact, jurors are told repeatedly during instructions to vote their conscience.

But the Arias case has blazed new trails, with trial watchers in cyberspace on both sides, pro-Arias and anti-Arias, trying to bully, insult and influence media coverage and the outcome of the trial.

Juror 17 is now essentially in hiding.

"I'm not the person I was when I went into this," she said in a recent interview.

'We were stunned'

In June 2008, Arias killed her lover, Travis Alexander, who was found in the shower of his Mesa home with a bullet in his head, nearly 30 stab wounds and a slit throat. Arias eventually confessed to the murder, though she claimed self-defense.

A jury did not believe her. In May 2013, after a tumultuous 21-week trial, she was found guilty of first-degree murder. The jury found that the murder had been committed in an especially cruel manner, making Arias eligible for the death penalty.

The jury was not able to reach a unanimous verdict on whether to sentence Arias to death or to life in prison, however. It split 8 to 4 in favor of death.

A new jury was impaneled in October 2014, not to redetermine guilt or innocence, but only to determine whether she should get a life or death sentence.

Juror 17 was seated on the jury. She wrote on her initial juror questionnaire that she had seen parts of a made-for-TV movie about Arias. She revealed during voir dire, the pretrial questioning of prospective jurors that prosecutors and defense attorneys do, that she had been a victim of domestic abuse and that both her first and second husbands had spent time in prison. No one asked follow-up questions about those convictions.

The sentencing retrial lasted 19 weeks, almost as long as the first trial. It went to the jury on a Wednesday, Feb. 25.

"We were stunned," Juror 17 said, noting jurors' surprise that it was finally over.

Relations among the jurors were cordial. Some carpooled. Some became Facebook friends.

Their initial vote on a sentence was split, with seven wanting death, four undecided, and Juror 17 opting for life.

As they discussed the case, Juror 17 brought up the made-for-TV movie.

There were words thrown around. "People can't think they can come to Arizona and kill people," she recalled being said.

"Right away I got the feeling that they were not an impartial jury," she said.

Juror 17 believed Arias was guilty. Though she carefully guards her reasons for voting for life, she said she considered the mitigation testimony of psychologist Robert Geffner critical. Geffner, a defense witness, said it was his opinion that Alexander engaged in multiple manipulative and exploitative relationships with women, including Arias.

"I couldn't understand: How can you kill someone you love?" she said. "We were asked to accept that she was guilty of first-degree murder and that aggravating factors had been found. But I also focused on the totality of it."

She didn't budge from her vote for life.

Two notes sent to judge

By the next Monday, the discussion was getting heated, she said. The next day, she was still holding out and she claimed the other jurors were telling her, "You don't get to decide" and "we're not going to be a hung jury."

She asked to send a note to the judge. The others refused, so she texted the judge's bailiff, asking him to bring a jury question form to her.

"Everyone was yelling in the background," she said. "They started drafting their own question."

Two notes went to the judge.

One said that Juror 17 was not cooperating and that the other jurors wanted her removed, because, among other things, she had mentioned the movie.

In the second note, Juror 17 identified herself by number and claimed she was being harassed and forced to consider irrelevant matters like whether Arias would write a book or get early release.

The judge and lawyers are not supposed to know the split in a deadlocked jury, nor which way the majority is leaning. But the jurors had divulged that information in the two notes.

Judge Stephens asked the lawyers to meet that day after lunch. Arias and the Alexander family were present at the meeting. Prosecutor Martinez asked that the juror be removed in accord with the other jurors' complaints. But Stephens noted that Juror 17 had disclosed having seen the film about Arias' case, and other things, on her juror questionnaire.

Later that afternoon, Martinez produced the Facebook page, which identified Juror 17 by name, and asked that she be removed. Though attorneys are not supposed to refer to the jurors by anything but their numbers during trial, the Facebook page was presented in the presence of Arias and the Alexander family.

Martinez again asked Stephens on Wednesday, March 4, to consider removing Juror 17. She would not. The next day, Stephens declared a mistrial.

Under state law, Arias could not be tried again and she had to be sentenced to life.

"I was so emotional, I was sobbing," said Juror 17. She claimed she had gone home crying several nights. For the last three nights of the trial, she was escorted out separately from the other jurors.

Identity made public

As jurors chatted with Stephens after the mistrial, media members — newspaper and TV reporters, as well as non-traditional media such as bloggers and tweeters — waited in a room on the first floor of the courthouse for an audience with the 11 jurors who wanted to sentence Arias to death.

Minutes after the mistrial, they were looking at a screen shot of the Facebook page that Martinez had used as evidence of Juror 17's bias. It had her name on it. It was unclear who was sending it to select journalists.

The jurors filed in shortly after and lambasted Juror 17.

"I think she had her mind made up from the beginning," one said.

"It's been an emotional toll on us and our families and jobs, and we feel we have failed," said another.

They would not identify themselves. But Juror 17 had already been warned by the court that the public knew her name.

She immediately was bombarded with "friend" requests on Facebook and new followers on Twitter.

"I deactivated all my social-media accounts," she said, before the messages started rolling in. But her relatives were caught unaware.

Meanwhile, tweets and Facebook posts were going viral, listing her name and asking that it be passed on.

"My phone started ringing off the hook, so I changed my number," she said.

Her relatives started receiving threats and doctored photos. The trial watchers began scouring the Internet and revealing details of her life, including the convictions of her husband and ex-husband — and the surprise that the first husband had been prosecuted by none other than Juan Martinez. That fueled speculation that she had been a "stealth juror" intent on undermining the prosecution's case.

Juror 17 claims she had no idea who prosecuted her first husband. They were high-school sweethearts, both 17 and not yet married. There was no trial, just a burglary plea deal. And although she attended his sentencing, she only remembered that there was a judge, a prosecutor and a defense attorney.

They married when he got out of prison, but she divorced him years later, alleging abuse.

Ryan, her attorney, said that if she had planned to discredit Martinez, "This is the luckiest vengeful woman I've ever met in my life."

She now has police protection at her house, and there are arrest orders in place for people who approach.

"This woman is living in fear of her life," Ryan said. "And for what?"

Legal community divided

County Attorney Bill Montgomery would not comment on Juror 17 beyond a written statement he issued last week.

"In instances where there is credible information of misconduct, the Maricopa County Attorney's Office will review the matter, request an independent investigation, and then seek an independent review for any potential charges and then for prosecution," he said.

But then he called for reason from the trial watchers.

"In the current situation surrounding the State v. Arias trial, attacks on Juror 17, which can only presently be based on speculation, must cease. There is a process for review ... Anger and frustration at suspected actions inconsistent with our jury system does not provide justification for death threats or disgusting characterizations of what should happen to someone's person. Instead, the same fidelity to fairly assessing available information as expected in the underlying criminal trial should be observed in this matter."

Whether he intends to pursue allegations of misconduct against Juror 17 remains to be seen.

The legal community is split on whether Martinez should have investigated a juror keeping him from getting the verdict he wanted.

"You're telling people that their opinion really matters and that they should consult their consciences and understand that this is one of the most important decisions you can make," said Hammond, the defense attorney. "But please be forewarned that the prosecutor can conduct an investigation into your private dealings while you're doing that."

David Derickson, a former Superior Court judge, said, "I think there has to be a distance between the law-enforcement investigating and the people who are seeking to disqualify. I think it's lawyer misconduct. I don't care about prosecutor misconduct. It would be outrageous for a defense attorney to do it for the one juror holding out."

Former Maricopa County Attorney Richard Romley, Martinez's longtime boss, agreed.

"I don't understand why Juan chose to investigate the juror at that time," he said. "That's supposed to be taken care of in voir dire."

But Michael Terribile, another defense attorney who says outright that he is not a Martinez fan, disagrees.

"I don't know if a lawyer does anything wrong by checking it out. It's what you do with the information later," Terribile said. "Where it broke down is, the judge didn't tell the other jurors that nobody has a right to tell anyone they're wrong."

And former U.S. Attorney for Arizona Paul Charlton noted, "If the facts are egregious enough, and you discover information the juror failed to disclose, then yes," it is appropriate to conduct an investigation. But he added that he was not impressed with the specific evidence Martinez proffered.

There was no debate about revealing the juror's name and personal information, however.

"That's more than troubling," Charlton said. "If someone disclosed that information to intimidate her, that is of extraordinary concern. If it was done intentionally, then someone needs to answer for that."

Juror 17, meanwhile, wants no more part of jury duty.

"I don't ever want to do it again," she said. "You're asked to take an oath that you're going to be impartial and you're going to take everything under consideration. And you do, and get punished."