Government's case against Jodi Arias on the Horns of a Dilemma
Ms. Arias has, either by sheer blind, dumb luck or incredible genius, placed the government on the horns of a dilemma. The government's case against Ms. Arias, for over 4 years leading up to her prosecution for first degree murder, was that she stole her grandfather's gun with the express intent of murdering Mr. Alexander and that Ms. Arias killed Mr. Alexander with that same weapon.Then, just a few days before trial started, the government changed its position because the medical examiner testimony was that Mr. Alexander died from multiple stab wounds. The gun shot came after Mr. Alexander was fatally wounded.
Thus the government faces the following dilemma: either Ms. Arias is truthful and accurate when she testified she shot Mr. Alexander first. In that case the government would be validating, at least implicitly, her testimony that she killed Mr. Alexander in self defense. Or the government has to explain why if Ms. Arias stole a gun to kill Mr. Alexander did he die from knife wounds?
So far the government has not explained its position with regard to the dilemma during the entire course of the 6 week trial. My suspicion is that the government will cravenly wait until closing argument to try to do so. The most likely explanation I have heard of so far from the peanut gallery is that Ms. Arias tried to shoot Mr. Alexander first but the weapon jammed. Then after knifing him 29 times, she shot him while he was already dying or even dead. See "Gun Jodi used jammed, forensic expert believes":
HLN’s Dr. Drew welcomed forensic crime scene expert Randolph Beasley to the show. Although Beasley has nothing to do with the Arias case, he knew both Alexander and Arias and gave his opinion on what he believed happened on that fateful day nearly five years ago.
“To me, what makes sense on this case is that Jodi did not bring a knife to attack Travis,” he said. “She brought a gun. It's obvious she premeditated this. When she shot him in the bathroom when he's in the shower, the gun jammed, so she couldn't finish him off.”
He added, “When the gun jammed, she panicked. She had to go ahead and find a knife … and finished him off.”
The only problem with this explanation is that, as far as I know, Ms. Arias was never a Navy Seal. It is not easy to unjam a weapon. It takes quite a bit of training and skill to be able to do so. Pulling the trigger on a jammed weapon will not accomplish anything. It is even harder during a life and death struggle to have the presence of mind to forgo a jammed gun and reach for a knife, especially when the opponent is much larger and stronger.
Whether or not Ms. Arias was the aggressor or victim, whichever the case, if in fact she first tried to shoot Mr. Alexander and the gun jammed, she was then in a struggle for her life. I have a very hard time believing what will probably be the government's final argument: she stole the gun to kill him, when she tried to kill him, motivated by sexual jealousy, the gun jammed; then, while in a life and death struggle with Mr. Alexander, she put the gun to the side and stabbed him multiple times; and after he was mortally wounded she shot him once in the head. So far the overwhelming evidence is that Ms. Arias knew next to nothing about guns and was not some Nikita-esq femme fatal.
Of course, this all assumes the jury believes the government's assertion that Ms. Arias stole the weapon with which she shot Mr. Alexander. For a detailed criticism of this point, see the excellent post "Still in the Dark After Dark: “Pathological” Lying About The Gun(s)" by "Pitchforks". There is also quite a bit of good information at "You Could be Wrong".
P.S. In response to all the comments and tweets that I have received along the lines of "premediation is just so obvious, etc...", I would suggest reading Nassim Taleb's wonderful book "Fooled by Randomness". "Black Swan" is also from Mr. Taleb and is much more famous but not nearly as good. John Meynard Keynes, the economists of the 1930s who saved capitalism, wrote "A Treatise on Probability" that is along the same lines.
What I am specifically referring to is what Taleb and Keynes called decision making under uncertainty. No matter how much information we gather, we cannot know for sure what Ms. Arias was thinking in the moments leading up to her killing Mr. Alexander, and I doubt if Ms. Arias even knows for sure what she was thinking then. Figuring out what happened in the past is just as hard as predicting the future. Figuring out her state of mind is no easier than knowing what the price of gold will be in 50 years. We just don't know.
Under these sorts of conditions then, we resort to convention or what Keynes called heuristics. That is because even though we are operating under uncertainty, we still have the practical problem of deciding what to do in these sorts of cases. My position is that a thousand years of common law is pretty good convention, and it would dictate we do not find someone guilty of intent to kill without either direct evidence of premeditation or an overt act before the killing. The consequences of getting it wrong and convicting her of first degree murder are too great, much worse than being mistakenly too lenient and convicting her of murder in the second degree.