05/28/2013 03:54 pm ET Updated Jul 28, 2013

Killing Jody Arias -- Is the Prosecutor Playing God?


Jody Arias killed her boyfriend. Of that there is no doubt. And after a five-month trial the jury convicted her of murder, for which she could be executed. But after 13 hours of intense deliberations, the jury could not say unanimously that she should die. Despite the inflammatory appeals of the prosecutor to kill her, four jurors voted to spare her life. If that jury, representing the moral conscience of the community, could not agree on killing her, why should the prosecutor have a second chance to kill her?

Indeed, Arizona is almost unique among the 30 or so states that give juries the power to impose the sentence of death. Arizona, along with California, are the only two states that allow the prosecutor to try again for the death penalty after a jury has been unable to agree on imposing death, and the judge has declared a mistrial of the penalty proceeding.

But is the prosecutor using fair and balanced judgment in re-seeking Arias's execution? Is the prosecutor properly using scarce resources to ask another jury to do what the first jury refused to do? Or is the prosecutor playing to his blood-thirsty audience -- including the gaggle of media talking-heads -- who are screaming for Arias's scalp? And in trying to override the first jury's indecision, which expressed the morally-divided sentiment of his constituency, is the prosecutor playing God?

Why undertake this process all over again? Putting the moral issue of the appropriateness of death penalty aside, consider the time and expense of a retrial on the issue of whether to put Arias to death. The Arias trial has already cost taxpayers close to $2 million. A retrial of the punishment will necessitate impaneling a new jury, and that process alone likely will be very lengthy. Indeed, given the circus-like atmosphere of the first trial, and the saturation of the public with the intense, super-charged commentary by the media, finding 12 jurors who could swear to be fair and impartial would appear to present obvious difficulties.

Apart from selecting a new jury, a new sentencing proceeding also will be quite lengthy, and costly. The new jury will have to be acquainted with all of the evidence relevant to imposing a death sentence, and this process has to include most of the proof admitted in the first trial on the issue of Arias's guilt of capital murder. The new jury needs to know all this proof to determine whether there are sufficient aggravating circumstances that a jury is legally required to find to allow it to impose the death sentence, as well as whether there are facts that mitigate against putting her to death. Is there a good reason to go through this process all over again? Is it worth the time and cost? Will this second proceeding be used by the prosecutor for legitimate law enforcement reasons, or will it be done to titillate the mob standing at the gallows waiting for Arias's execution?

The death penalty is ingrained in the culture of most of the states, as it is in Arizona, and the issue here is not about abolishing the death penalty. The Arizona jury has spoken in the Arias case, first by finding her guilty of capital murder, and then by showing its disagreement on whether to vote to kill her. Putting aside the arguments for or against capital punishment, most everyone would agree that the process of imposing a death sentence should be fair. Is it fair to re-try the question of whether to put her to death?

If the Arias jury had been undecided on her guilt, a retrial would be appropriate. There would be no constitutional bar under double jeopardy, and as a moral question the issue of a defendant's guilt should be decided conclusively if possible. But that's a far different question than arguing for a conclusive and final decision on the punishment of death. As noted above, when a jury is unable to unanimously agree on executing a killer, virtually every jurisdiction in the U.S. accepts that jury's indecision as a symbol that the jury has decided to show the defendant mercy, and to impose a sentence of life in prison.

The Arias prosecutor apparently sees the jury's indecision differently. To him it's not a sign of the jury's conscientious doubts about imposing death. To him it's not about respecting the jury's voice as the moral voice of the community. To the Arias prosecutor it's simply an occasion -- and there are many such occasions for prosecutors -- to decide for whatever reason whether to show a defendant mercy or seek retribution. It's an incredibly powerful role for a prosecutor. It's almost like playing God. The danger, of course, is that if this powerful official, a popular and popularly elected official, believes that his constituency is clamoring for death, he's likely to grant their wish. He has the power to do that. He's playing God. It's as simple as that.