Judge excludes press and public during testimony by mystery witness in Arias resentencing

Monday, November 3, 2014

Good morning:

The Jodi Arias resentencing hearing unexpectedly went dark last week when Judge Sherry Stephens granted a defense request to exclude the public, the press and their cameras during the testimony of a defense mitigation witness who had refused to testify unless the court granted the motion. Adding to the mystery, Judge Stevens issued her order orally without giving the press an opportunity to be heard and sealed her decision setting forth the basis for her ruling.

An outraged press summoned their lawyers, but to no avail as Judge Stephens refused to reconsider her order or to issue a stay to suspend the hearing while the press appealed her ruling to the Arizona Court of Appeals.

The lawyers filed the appeal Friday afternoon seeking an emergency hearing as soon as possible. That hearing should take place today.

Meanwhile, the witness apparently has testified, so there is not much the Court of Appeals can do except affirm Judge Stephens’s order or direct her to provide the press with a transcript of the witness’s testimony.

Three important legal rights are in conflict: Arias’s Fifth and Fourteenth Amendment right to due process of law and her Sixth Amendment right to call witnesses and present evidence versus the public’s First Amendment right to know what is going on.

Generally, a defendant’s rights to present a defense and due process will trump the public’s right to know.

The Arizona Rules of Criminal Procedure provide guidance.

Rule 9.3(b) states:

All proceedings shall be open to the public, including representatives of the news media, unless the court finds, upon application of the defendant, that an open proceeding presents a clear and present danger to the defendant’s right to a fair trial by an impartial jury.

I believe Judge Stephens must have made a finding that she had exclude the public and the press to avoid creating “a clear and present danger to the defendant’s right to a fair trial by an impartial jury.”

I suspect the Court of Appeals will see this issue as water under the bridge and summarily affirm her order or deny review to avoid establishing a precedent.

Meanwhile, the beat goes on.

Some legal commentators have speculated that the mystery witness is Jodi Arias, but I doubt it. She has the right of allocution, which means she can speak to the jury without being subjected to cross examination.

The witness might be her ex-boyfriend who testified on her behalf in her mitigation hearing at her first trial. I believe that resulted in some unpleasant repercussions for him that he might be attempting to avoid this time around.

Judges do have the power to order a witness to testify and hold them in contempt, if they refuse. They are understandably reluctant to use that power with a child or adult witness who is willing but reluctant to testify due to probable retaliation or shaming.

No matter what the Court of Appeals decides to do, this case should go to the jury this week.

22 Responses to Judge excludes press and public during testimony by mystery witness in Arias resentencing

  1. ay2z says:

    OT, today the NPA in SA filed it’s appeal against the judgement and sentencing of Oscar Pistorius.

    Here is one news video that discusses the issue including the general need for a review of the law re: variety of interpretations by courts of dolus eventualis. Sounds as if there are no public defenders in SA, at least no suggestion that one is available for OP’s appeal defense.

    • ay2z says:

      Law prof. Grant from SA, says important for a superior court of appeal to hear this appeal for importance of principals of law here, not ‘personalities’ in this case.

      If “Foresee possibility” = “intention” in SA law

      SA courts decisions on this law, “arbitrary”, “lack of clarity”, “internal conflict”

      Interviewer also reads points from the appeal submission.

      • The problem is that there is a difference between finding that death was a reasonably foreseeable consequence of firing a gun four times through the door of the toilet cubicle and concluding that OP intended to kill the person behind the door.

        Given the presumption of innocence and his denial that he intended to kill the person behind the door, how is it possible to find him guilty?

        Judge Masipa answered that question by finding him not guilty of murder, which requires proof beyond a reasonable doubt that he intended to kill the person behind the door. Instead, she found him guilty of culpable homicide, which is gross negligence for failing to be aware that shooting 4 times through he door would create a substantial risk of killing or seriously injuring the person behind the door.

        Expressed another way, can the presumption of innocence be overcome by a presumption that a person intended the natural and probable consequence of his acts, despite his denial?

        I believe the answer is ‘yes,’ because the presumption of innocence does not require the finder of fact to believe the shooter’s denial that he intended to kill the person behind the door.

        Therefore, the most specific formulation of the issue on appeal is whether Judge Masipa believed OP’s denial and found him not guilty or whether she did not believe him, but felt compelled to find him not guilty because he denied intent to kill.

        Her decision must stand, if the former, but can be vacated, if the latter.

        Rule: The presumption of innocence does not require a fact finder to believe a defendant.

  2. Brandy says:

    For those interested in this trial, you can follow live on twitter at Trialdiaries.com or Jeff Gold twitter and Monica Lindstrums twitter. I found a great blog called …. Reallybigmeandog.com that has all the current info in this trial with a nice twist of humor which I find refreshing instead of pulling my hair out. lol

  3. Brandy says:

    JA has always loved the cameras, the attention. She has never met a camera she did like when it came time to give interviews before and during the first trial. Now all of a sudden JA is shy. JA and her defense team fought and won to keep camera’s out of the Penalty Phase. Jodi did not want any media or the public in the courtroom last Thursday or as long as it took while she was on the stand. She did not want her performance and her continued LIES witnessed as she came up with story number 4 by media and the public, she did not want the info tweeted out in real time. This Judge is a disgrace and has no business dealing with a DP case IMO

  4. Brandy says:

    FYI, it was in Fact Jodi Arias on the stand last Thurs, she was the secret witness. Has been reported by a few reliable sources. Also channel 10 news in Phoenix has reported that JA was the secret witness too. What does JA have to be afraid of? she is in jail. This was all about Control for her and the Defense to not let the media and public watch her on the stand. Luckily, the Judges stayed the order.

    • I’m not saying you are wrong, but Jodi Arias has no reason to testify because she would be subject to cross examination if she did, and she has the right to allocution in which she can say anything she wants to the jury that pertains to sentencing without being cross examined.

      Also, why would she insist on cameras, the media and the public being excluded from the courtroom during her testimony, if she loves publicity?

      I don’t believe she was the mystery witness.

  5. a2nite says:

    Don’t forget to vote if you haven’t already.

    • Disappointed says:

      I lined up at 6:00am to vote! We need change. The republicans in my state are morons. Jmo

      • Malisha says:

        Really? Wow, what state are you in? Because the Repugnicans in MY STATE are MUCH stupider than morons. They have a lot to learn!

        • Disappointed says:

          Indiana. I’m tired of hearing about entitlement programs. Pretty sure we do not opt in to have SS taken out of our checks. Therefore IMO the elderly and disabled are just requesting what they were promised. When not crying about that they are barking about abortions. Never mind we bomb places killing children and that’s okay. Or we use death penalty and that’s okay. I can’t take the ignorance anymore. :/

          • Republicans and many Democrats insist on calling Social Security an entitlement program, which it isn’t because we paid for our social security with the FICA deductions out of all of our paychecks during our working lives.

            They also claim that social security is bankrupt, which is another lie because there is enough money coming in from current FICA deductions to make all payments for more than 30 years.

            These lies are being told because, as a matter of principle, randian neoliberals hate social security and any form of financial assistance to people who need it. They deeply resent paying any taxes for any purpose that does not directly benefit them in an amount greater than their own contribution.

    • MDX says:

      SS is employment insurance with an end of ability to be employed stipend. And, being insurance, the stipend is based on actuary data using the concept of collective risk. Sure, there are those hard nuts like my father who were able to collect for 25 years but that is contrasted by his electrician partner who lived for only 6 months collecting SS before a heart attack took him.

      But, then again, math inability is the hallmark of those who fawn over the Reich Wing.

      No concept of probability whatsoever.

      Ask them this simple question:

      What is more likely?

      A) Getting Ebola

      B) Getting killed in a mass uprising by “the blacks”

      C) Getting killed by ISIS

      D) Getting killed by the ISIS contingent of “the blacks” utilizing an Ebola assassin

      E) Getting killed driving their car

      They would choose D.

      I weep for my country.

      • Disappointed says:

        I think it’s ridiculous to call SS an entitlement. I’m all for raising miminium wage. IMO if they raised it to 10.$ an hour some people would not longer qualify for the aid they qualify for. I’m sure people would rather earn the money to support themselves rather than the beat down they get for needing it. I’m sick of the treatment of black people. They pay taxes. I’m sick of the disrespect shown to the POTUS. I’m weeping with you.

  6. Two sides to a story says:

    Arias stated in the past that she wants to die. Even if defense saves her life she might do herself in.

  7. Well, I called this one wrong and I’m glad I turned out to be wrong because I really don’t like secrecy in legal proceedings.

    The Court of Appeals entered a stay preventing Judge Stephens from enforcing her order excluding the press.

    If the mystery witness already testified, the court reporter can produce a transcript and provide a copy to the press.

    Hopefully, we’ll see livestream for the rest of the hearing, unless the defense gets the Arizona Supreme Court to grant review and reverse.

    What a freaking mess!

  8. Malisha says:

    It strikes me as also being possible that the judge granted this request because she expects the death penalty anyway and does not want to provide the defense with another ten issues for appeal of the sentence.

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