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

November 3, 2014

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.


Prosecution has completed its summary of the evidence against Jodi Arias

October 29, 2014

Wednesday, October 29, 2014

Good morning:

The prosecution has completed its presentation of a summary of the evidence against Jodi Arias who was previously convicted by a jury of the premeditated murder of Travis Alexander, her former boyfriend, in a cruel, heinous, or depraved manner.

Arias is back in court for a new penalty phase hearing because that jury was unable to unanimously agree that she should be sentenced to death. The prosecution was unwilling to settle for a life-without-parole sentence, even though four jurors voted for it. Instead, they decided to try and convince another jury to sentence her to death.

Court is in recess today. Tomorrow, the defense will begin to present its mitigation case.

There is no television or livestream coverage of the retrial.

For particulars on the lurid details of this case, go here.

Frankly, I think this retrial is an aggravated waste of time and money. Arias will not be a danger to anyone in prison. Executing her is ridiculous.

DISCLOSURE: I am opposed to the death penalty in all cases, regardless of the circumstances.


Why the Jordan Davis murder was not a death-penalty case and update on Jodi Arias

October 2, 2014

Thursday, October 2, 2014

Good morning:

Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.

It is not a death-penalty case.

The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.

For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.

Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.

Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.

The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:

The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.

Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.

The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.

The effort to select a jury continues today.

Unfortunately, there is no television or live-stream coverage.

If you like what we do, please consider making a donation.

Thank you.


Jodi Arias resentencing scheduled for St. Patrick’s Day

January 14, 2014

Tuesday, January 14, 2013

Good morning:

Following a closed-door session, a spokesperson for the Maricopa County Superior Court announced that the resentencing hearing in the Jodi Arias case will commence on March 17, 2014.

A jury previously convicted her of the capital murder of her boyfriend, Travis Alexander, but was unable to unanimously agree on whether to sentence her to death or to life without parole. I believe the jury deadlocked at 8 for death and 4 for LWOP.

The sensible and cost-efficient resolution would have been to sentence her to LWOP. Alexander’s family and friends could have begun the process of moving on with their lives and forgetting about Jodi Arias. Instead, they want more spectacle and blood. So does the prosecutor.

Given the split, there is little likelihood that a new jury will unanimously agree on the death penalty. Nevertheless, here we go again.

Judge Sherry Stephens, who presided over the first trial, will preside over the resentencing. She has already decided to ban livestream and live television coverage, so we will not get to watch any of the proceedings. The resentencing will take place in Phoenix, so you will have to go there to see it.

To refresh your recollection of the case, go here.

During jury selection, the defense will try to eliminate every potential juror who would automatically vote for death, regardless of any mitigating evidence, and the prosecutor will attempt to do the same to every potential juror who might have difficulty imposing the death penalty.

Any potential juror who is opposed to the death penalty will be excused on the ground that they cannot follow the law if they are unwilling to consider imposing the death penalty.

Keep in mind that the issue of guilt has already been decided. The new jury will only be tasked with deciding the penalty.

Nevertheless, the prosecutor will be permitted to introduce evidence about the murder since it’s relevant to consider in determining the sentence.

All defendants in criminal cases have the right of allocution, which means she can ask the jury to spare her life or sentence her to death.

To refresh your recollection on the procedure the court will follow and the jury instructions that the court will give to the jury, please go here to read my article from last May.

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This is our 852nd post. We posted 3 articles yesterday and covered the atrocious verdict in the Kelly Thomas case late into the night. I was going to go to bed when I saw a news report about the Arias resentencing. I decided to hell with sleep and wrote this article instead. My article (to which I linked) about the penalty phase procedure and jury instructions is comprehensive and easy to read. I was a death-penalty lawyer so I know how it works.

We had 620 visitors to the site yesterday and only received 3 donations. That is not encouraging and I am not the least bit ashamed to say so.

Fred


Updates on Chism, Arias and Thomas cases

December 4, 2013

Wednesday, December 4, 2013

Good evening:

Philip Chism was arraigned today in Superior Court and pled not guilty.

I also have updates on Arias and Thomas.

Judge Sherry Stephens issued an order today in the Jodi Arias case denying a defense motion to compel jurors in her penalty phase retrial to reveal their social media and Twitter account information. The defense wanted to monitor the accounts to make sure jurors do not use them to obtain or disseminate information about the case.

Two weeks ago she issued an order banning live television coverage of the penalty phase.

Adolpho Flores reported today for the LA Times that the prosecution played an audio recording yesterday in which defendant Jay Cicinelli could be heard proclaiming that he hit Kelly Thomas 20 times in the face with his stun gun. Cicinelli’s statement was picked up by a body microphone worn by Officer John Ema. Cicinelli is charged with involuntary manslaughter and using excessive force.

Flores reports that Cicinelli’s lawyer, Michael Schwartz, told reporters after court that his client did not really mean what he said.

“That’s not what happened,” Schwartz said outside the Santa Ana courtroom. “What he’s saying is driven by his heightened state of anxiety, stress and disbelief.”

In his opening statements Monday, Schwartz said his client encountered a combative, uncontrollable suspect who grabbed his Taser.

At times what appears to be Cicinelli striking Thomas in the face is him actually hitting the homeless man’s hand to push it away from the stun gun, Schwartz said.

“An officer is trained in the state of California to never relinquish the weapon to a suspect,” Schwartz said.

Yeah, sure. You betcha.

Flores also summarized the videotape of the encounter between police and Thomas.

Jurors on Tuesday were also shown security footage of the encounter between Thomas and police outside a Fullerton bus depot. The 33-minute video is a compilation of cameras from the bus depot and audio from recording devices worn by police officers.

The grainy black and white video is a key piece of evidence in the prosecution’s case and captured the Fullerton police officers hitting Thomas with batons and a Taser, in addition to shocking him with the device. Several people, including Thomas’ mother, cried as the tape played.

Thomas was in a coma after the incident and died five days later.

The footage begins with Ramos approaching Thomas after receiving a 911 call of someone attempting to break into cars.

To read the remainder of his vivid and sickening description, please go here.


News about the site, jury selection process and latest news in Zimmerman and Arias cases

May 23, 2013

Thursday, May 23, 2013

Good afternoon:

Crane-Station and I are combining our websites, so you will be seeing her articles on a regular basis.

We are putting together a plan to live-blog each morning and afternoon session of GZ’s trial similar to the way we covered the last motion hearing. We will do the same for the hearing on May 28th.

I will post an article 30 minutes before each session to preview it and update everyone. The article will have a link to livestream coverage.

We are soliciting your comments and recommendations, so please let us know what you would like us to do.

We will use the hearing next Tuesday, May 28th, to fine tune our approach.

I do not yet know whether jury selection will be livestreamed. Hopefully, it will so that we can share our thoughts regarding each juror.

I have much to teach regarding the art of jury selection.

I hope the Court permits the public to link to the juror questionnaires for easy reference during individual voir dire, but privacy concerns may prevail over our desire to know as much as possible about each juror and make informed choices about cause and peremptory challenges. This also would allow us to more accurately evaluate the performance of the lawyers.

Individual voir dire, as the name implies, involves questioning prospective jurors individually out of the presence of the others in order to prevent their answers from potentially influencing or poisoning the minds of other jurors. For example, this is the only way to effectively question prospective jurors regarding what information about the case they have been exposed to, from what sources, and whether they have formed an opinion about the case, the guilt or innocence of the accused, and the lawyers representing each side.

Personal questions regarding whether anyone has been a victim of a crime or accused of a crime also should be asked out of the presence of other jurors. Whether we will be permitted to observe that process remains to be seen.

Keep in mind that there is no limit to the number of challenges for cause that each side may assert. A challenge for cause is a formal request to the Court to excuse a prospective juror on the ground that they cannot or will not follow the jury instructions, which will be the law of the case. For example, a prospective juror who says she cannot presume the defendant innocent, given what she knows about the case, would be challenged for cause by the defense and excused for cause by the judge. The same result would happen to a prospective juror challenged for cause by the State, if he said that he had already decided that the defendant was innocent because TM was the aggressor and he had a right to kill him.

On the other hand, if either or both prospective jurors expressed less certainty and said they could put aside their personal beliefs and base their verdict only on the evidence admitted by the Court, the challenge for cause would be denied.

This unhappy result for the party that lost the challenge for cause would probably result in the use of a peremptory challenge to excuse the prospective juror. With three important exceptions, the party exercising a peremptory challenge does not have to give a reason to support or justify the challenge. The three exceptions are race, gender and religion.

You can reasonably expect the State will object to the defense using a peremptory challenge against a Black prospective juror. To survive the challenge, the defense will have to convince Judge Nelson that they have a reason independent of the prospective juror’s race to support the challenge.

Unless Judge Nelson increases the number of peremptory challenges, each side will get 3. A 6-person jury will decide the case.

For more information, click on Jury Selection in the Categories column on the right side of the web page or click here.

Finally, here’s a link to the latest from the Orlando Sentinel: New evidence in George Zimmerman case: Trayvon texted about being a fighter.

Rene Stutzman and Jeff Weiner breathlessly write:

The text messages about fighting may be the most damaging to the state.

Zimmerman says he acted in self-defense when he shot Trayvon, an unarmed black 17-year-old, in Sanford, Feb. 26, 2012.

Zimmerman described Trayvon to police as an aggressive young man who punched him, knocking him to the ground then climbed on top and began hammering his head onto a sidewalk.

In one text message Trayvon sent Nov. 22, 2011, he wrote about his unnamed opponent, “he got mo hits cause in da 1st round he had me on da ground an I couldn’t do ntn.”

In another text send Dec. 12 he acknowledged earning a reputation in the neighborhood – although because words were blacked out, it’s not clear what his reputation was. His reputation came, he wrote, because of “Duh way I fight nd duh golds (teeth) I had last year.”

Trayvon’s text messages also show that he was interested in guns. A few days before the shooting, he wrote an unidentified friend, “U wanna share a .380”

And about a week before that, he texted a young Miami woman who’s been described as his girlfriend, “U gotta gun?”

Her response: yes, although she did not have possession of it. “It my mommy but she buy for me,” the young woman wrote.

On November 22, 2011, three months before he was killed, he wrote a friend that his mother had ordered him to move out and that he had gotten in trouble for cutting classes.

“I promise my mom just told me I gotta move,” he wrote. Two minutes later, he wrote, “Da police caught me outta school.”

Circuit Judge Debra S. Nelson must now decide whether to allow jurors to learn about the text messages and photos. In paperwork filed earlier this month, Assistant State Attorney Bernie de la Rionda asked her to ban them, describing them as irrelevant.

Latest word on Jodi Arias: Jurors resumed deliberations this morning after reporting yesterday that they were deadlocked.

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I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


Proof of premeditation requires proof of reflection on decision to kill and discussion of the Arias allocution

May 21, 2013

Tuesday, May 21, 2013

Good afternoon:

To prove premeditation, a prosecutor must prove beyond a reasonable doubt that the defendant intended to kill the victim and, upon reflecting on the decision to kill, decided to go ahead and kill the victim. This process can occur quickly and only requires more than a moment in time to take place. Therefore, time is not particularly important to proving premeditation.

A prosecutor must rely on circumstantial evidence to prove premeditation, unless the defendant has admitted that he or she premeditated the murder. The most powerful circumstantial evidence of the defendant’s intent is the defendant’s conduct. The greater the length of time between formation of intent to kill and the act that causes death, the more likely the defendant reflected on the decision to kill and decided to complete the act.

Many of us, including me, have speculated that GZ premeditated the death of Trayvon Martin. However, a prosecutor must restrict himself to charging what he believes he can prove beyond a reasonable doubt. This is why GZ is charged with second degree murder. It is a conservative charging decision based on the uncertainty of convincing all of the jurors beyond a reasonable doubt that GZ reflected on a decision to kill Trayvon Martin and decided to go ahead and do it.

Now consider the Jodi Arias case. Seems to me that there is overwhelming evidence of careful planning before the murder, and the use of two weapons (knife and gun) to carry it out, including a coup de grâce, eliminates any doubt in my mind that she had opportunities to reflect on her decision to kill and decided to complete the act.

Jodi Arias just finished addressing the jury (her right to allocution) and the Court is now instructing the jury.

What did you all think about her allocution and what do you think the sentence will be?

Keep in mind during the jury deliberation that any mental illness qualifies as a potential mitigating factor. Insanity is a legal definition that requires proof that, due to a mental illness, a defendant could not distinguish between right and wrong at the time of the act. Any effort to conceal the commission of the crime and/or the person’s role in committing the crime normally defeats the insanity defense. Arias is not claiming insanity.

Closing arguments will begin at 1:30 pm PDT.

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I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


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