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.

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