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.

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.


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.


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