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.


Explanation of the Jodi Arias sentencing hearing

May 9, 2013

Thursday, May 9, 2013

Good morning:

The jury convicted Jodi Arias of premeditated first degree murder yesterday. Next up is the sentencing. The same jury that convicted her of premeditated murder will decide whether to impose the death sentence.

The hearing is scheduled to start at 1 pm, PDT (4 pm EDT).

Jodi Arias has stated that she wants to be sentenced to death. She has a right to testify and may request that sentence. She may have changed her mind, however.

There is no premeditated murder, no matter how egregious, that automatically results in a death penalty.

Court will reconvene at 1:00 pm PDT for the Eligibility Phase of the trial. This phase is also called the aggravation hearing because the prosecution will have to prove an aggravating circumstance beyond a reasonable doubt. The aggravating circumstance alleged in the indictment is that the premeditated murder was “especially cruel.”

The prosecution will probably call the Medical Examiner who performed the autopsy to testify regarding how long the victim remained conscious after she initiated the assault and the extent to which he may have suffered pain and emotional distress before losing consciousness and dying.

The more extreme his suffering and emotional distress, the more likely the jury will decide that the murder was especially cruel.

The defense can call its own expert or rely on cross examining the State’s expert.

Both sides will have an opportunity to argue whether the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel.

The Court will instruct the jury as follows regarding the meaning of the term “especially cruel.”

The term “cruel” focuses on the victim’s pain and suffering. To find that the murder was
committed in an “especially cruel” manner you must find that the victim consciously suffered
physical or mental pain, distress or anguish prior to death. The defendant must know or should
have known that the victim would suffer.

Potential consequences:

If the State does not prove beyond a reasonable doubt that an aggravating circumstance
exists, the judge will sentence the defendant to either life imprisonment without the
possibility of release, or life imprisonment with the possibility of release after 25 [35] years.

If the jury unanimously decides beyond a reasonable doubt that an aggravating circumstance
does exist, each juror will decide if mitigating circumstances exist and then, as a jury, you will
decide whether to sentence the defendant to life imprisonment or death. If the sentence is
life imprisonment then the judge will sentence the defendant to either life imprisonment
without the possibility of release from prison, or life imprisonment with the possibility of
release from prison after 25 [35] years.

“Life without the possibility of release from prison” means exactly what it says. The
sentence of “life without possibility of release from prison” means the defendant will never
be eligible to be released from prison for any reason for the rest of the defendant’s life.

If the jury concludes that the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel, the sentencing will proceed to the Penalty Phase.

The judge will then read the following instruction to the jury:

While all twelve of you had to unanimously agree that the State proved beyond a
reasonable doubt the existence of a statutory aggravating circumstance, you do not need to
unanimously agree on a particular mitigating circumstance. Each one of you must decide
individually whether any mitigating circumstance exists.

You are not limited to the mitigating circumstances offered by the defendant. You must
also consider any other information that you find is relevant in determining whether to
impose a life sentence, so long as it relates to an aspect of the defendant’s background,
character, propensities, record, or circumstances of the offense.

The defendant bears the burden of proving the existence of any mitigating circumstance
that the defendant offers by a preponderance of the evidence. That is, although the
defendant need not prove its existence beyond a reasonable doubt, the defendant must
convince you by the evidence presented that it is more probably true than not true that such
a mitigating circumstance exists. In proving a mitigating circumstance, the defendant may
rely on any evidence already presented and is not required to present additional evidence.
You individually determine whether mitigation exists. In light of the aggravating
circumstance[s] you have found, you must then individually determine if the total of the
mitigation is sufficiently substantial to call for leniency. “Sufficiently substantial to call for
leniency” means that mitigation must be of such quality or value that it is adequate, in the
opinion of an individual juror, to persuade that juror to vote for a sentence of life in prison.
Even if a juror believes that the aggravating and mitigating circumstances are of the same
quality or value, that juror is not required to vote for a sentence of death and may instead
vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence
even if the defendant does not present any mitigation evidence.

A mitigating factor that motivates one juror to vote for a sentence of life in prison may
be evaluated by another juror as not having been proved or, if proved, as not significant to
the assessment of the appropriate penalty. In other words, each of you must determine
whether, in your individual assessment, the mitigation is of such quality or value that it
warrants leniency in this case.

The law does not presume what is the appropriate sentence. The defendant does not
have the burden of proving that life is the appropriate sentence. The State does not have the
burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide
what you individually believe is the appropriate sentence.

In reaching a reasoned, moral judgment about which sentence is justified and
appropriate, you must decide how compelling or persuasive the totality of the mitigating
factors is when compared against the totality of the aggravating factors and the facts and
circumstances of the case. This assessment is not a mathematical one, but instead must be
made in light of each juror’s individual, qualitative evaluation of the facts of the case, the
severity of the aggravating factors, and the quality of the mitigating factors found by each
juror.

If you unanimously agree there is mitigation sufficiently substantial to call for leniency,
then you shall return a verdict of life. If you unanimously agree there is no mitigation, or the
mitigation is not sufficiently substantial to call for leniency, then you shall return a verdict of
death.

Your decision is not a recommendation. Your decision is binding. If you unanimously
find that the defendant should be sentenced to life imprisonment, your foreperson shall sign
the verdict form indicating your decision. If you unanimously find that the defendant should
be sentenced to death, your foreperson shall sign the verdict form indicating your decision.
If you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the
judge.

And there you have it.

Go here to read the full set of pattern jury intructions for the Eligibility and Penalty Phases.

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