_ Will it be life in prison or death for Jodi Arias? On Monday, she'll be back in court and one step closer to finding out. Stay with HLN for complete coverage of her hearing. _
Editor’s note: Larry Seidlin was the presiding judge over the Anna Nicole Smith murder trial. After serving as prosecutor in Broward County, he was elected as Florida’s youngest judge. Now retired, he lectures around the country.
There is a tug of war between the right to a free press, protected by the First and Sixth amendments, and a guarantee of a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.
Former Chief Justice Marshall ruled that mere exposure to pretrial publicity is not, in and of itself, enough reason to dismiss a juror, but if that juror could not leave behind his strong and deep impressions in order to fairly weigh the testimony and evaluate the evidence presented during the trial, then that juror could be disqualified.
Therefore, in the Jodi Arias trial, the judicial view and the accepted rule in the criminal justice system is that it may be impossible to find new jurors who have not been bombarded with information that states Arias deserves to be put to death. But, this exposure -- this drumbeat of anger and hatred for Arias -- does not mean the jurors will be unable to render a fair verdict.
The pretrial publicity for the death penalty phase is already damaging to Arias, although the judge can take measures to reduce the impact.
If I were the presiding judge during voir dire, I would require that each juror be questioned by the prosecutor, the defense attorney and the court outside the presence of the other jurors in order to preserve the integrity of the process. We want to prevent any potential juror from verbalizing an ugly opinion about Arias that would cause the remaining jurors to be tainted or prejudiced against her. That would allow the removal of jurors because of their inability to render a fair and just verdict.
As the judge, I would admonish the prospective jury in the following manner:
"In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. I want to stress that this rule requires you to disregard all publicity concerning this case. This includes reading newspapers, watching TV, using the Internet, social media, etc. This applies whether you are in the courtroom, at home or anywhere else. This case must be tried by you only on the evidence presented during the penalty phase in your presence and in the presence of the defendant, the attorneys and the judge.”
The key question posed to the juror will be whether or not they can disregard all they have heard and put it aside in order to give the state and the defendant a fair trial. Obviously, the jurors that want to serve in the penalty phase will say yes. The other jurors, for whatever reason, will say no.
However, research indicates that jurors have great difficulty ignoring information once they have become aware of it. The proliferation of cable news channels and tabloid TV shows has created media circuses surrounding trials.
In the Arias case, Arizona taxpayer money is being wasted because of inappropriate jury behavior. We saw this take place in the first phase of the Arias trial, when a couple of jurors violated the stated rules.
The reach of social media can also directly affect a criminal trial. Special public defenders appointed by the court, like those in the Arias trial, need the financial wherewithal to hire professional jury consultants to review prospective jurors’ backgrounds through their social media accounts. In other words, have an expert review the jurors’ online footprints, as well as the jurors’ predisposition about the case and the death penalty, and remove them from the jury panel if prejudiced. This can be identified from online blogs, Facebook status updates, Instagram photos, Twitter posts, etc.
There will be online evidence to challenge any juror who says he or she is uninformed about the Arias case. Therefore, anyone too active online with comments about this case should be excused. With all the publicity surrounding the Arias case, that’s how the judge should guide the attorneys in selecting a new jury for the penalty phase.
So no matter how much publicity there is surrounding a criminal case, the court can diligently, carefully and meticulously select a jury to render an equitable result.
Of course, the sad truth is that some jurors lie. They come in with a private agenda or are simply repeating what they have heard or seen in the media. So there is a chance that the new jury for the penalty phase of the Arias trial will be tainted. They will be hungry for her blood. They will want an eye for an eye, lethal injection -- they will want death.