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A not entirely short FWIW aside..
It's been so long since her appeal was first filed that I'd forgotten the insane motions her attorneys made to the COA shortly afterwards.
Remember? They demanded the ENTIRE COA recuse themselves from hearing her appeal, for bias. Because a single COA judge had mentioned her trial in an article he wrote about the expense of DP trials.
The COA speedily & decisively denied the motion, but her attorneys persisted. They filed a motion for reconsideration, in which they told the COA the decision to deny the motion was wrong, and to try again.
The COA denied this motion too, this time far more succinctly. IiRC - with one or two sentences, amounting to a simple we're done explaining ourselves NO.
What interests me now about those inept, brazen, bizarre motions is how different they are from the same team's opening briefs.
As I keep posting from the record to illustrate, I don't think their appeal has much merit, but their challenge to overturn this conviction was always steep. But....their theme has definitely changed, and while it's quite a reach, it's not unhinged.
From the get go, as in, during trial itself on through & afterwards, Nurmi strategized and laid the grounds for the appeal to be centered on pervasive publicity, NOT pervasive prosecutorial misconduct. He seems to have actually believed "he" would win on his circus trial argument.
What made the killer's team change their mainstay argument to JM's alleged misconduct?
Karen the Unethical Clark. It had to be, imo. She requested (and was given) access to the killer's entire trial record from the COA, including all sealed everything.
I remember speaking to a COA court clerk about what that meant, and why Clark's name now appeared on the killer's COA docket as an attorney on record.
Clark was obstensibly given access because of the work she was doing then preparing the killer's civil case against Nurmi. And I'm sure she used access for that purpose.
I'm also convinced she used her access to help the killer's otherwise mediocre at best attorneys prepare their opening brief, including retooling it to make it about JM, and to have it go straight for JM's jugular.
An attack on JM would buttress both the COA appeal and the bar cases against JM brought by Clark. Synergy.
Bar cases: see? JM has a history of misconduct, see appellate record, including in the pending JA appeal.
Pending COA appeal: see? JM had intent to engage in misconduct- look at not just his appellate record, but EVERYWHERE else for his misconduct. Wink wink.
(BTW. I assumed that it wouldn't be quite ethical if Clark had been involved in shaping/writing the killer's briefs. But asked DH (civil atty) and he said involving outside attorneys in writing motions, etc. was actually quite common. Who knew).
STATE OF ARIZONA, Appellee, BRYAN WAYNE HULSEY, Appellant. Filed January 18, 2018
THE CASE: {{Bryan Wayne Hulsey was sentenced to death after a jury found him guilty of the first degree murder of an on duty peace officer (LE). Hulsey also received a consecutive nine-year sentence for his conviction of attempted first degree murder of another on duty peace officer.
We affirm Hulsey’s convictions and prison sentence, but vacate his death sentence and remand for new penalty phase proceedings. }}
COURT ON STANDARD OF REVIEW, RULING ON MISCONDUCT BY JM:
We review a denial of a motion for mistrial based on cumulative prosecutorial misconduct for an abuse of discretion. We begin by assessing each claim of misconduct; we review objected-to claims for harmless error and unobjected-to claims for fundamental error.
After determining which claims constitute error, this Court reviews the cumulative misconduct to determine whether the total effect rendered defendant’s trial unfair.
(COURT’S FINAL RULING ON MISCONDUCT):
Here, although prosecutor Juan Martinez engaged in several instances of misconduct or near misconduct, altogether it was not so prolonged or pronounced that it affected the fairness of trial.
---------------------------------------------
I. THE COURT'S ANALYSIS AND RULINGS ON (MOST OF) THE MISCONDUCT CLAIMS REVIEWED, BROKEN DOWN BY TRIAL PHASES.
A. In VOIR DIRE. Use of the word “debate,” Use of the word “bullied.”
B. In GUILT PHASE
CHARGE: Improper Cross-examination of witness:
(JM) “talked over [a] witness and refused to let him answer the questions,” and insinuated that the witness was unethical. (..) was yelling and screaming at the witnesses and flailing his arms.
At trial, the court overruled defense counsel’s objections and stated that the prosecutor simply had a “very animated style.” We cannot conclude from the record that this assessment was incorrect.
(Also, that) throughout cross-examination, the prosecutor asked a series of questions designed to mislead the jury into believing a witness was testifying unethically, constituting improper burden shifting. In ruling on the objection, the court found that there was no evidence of unethical conduct and so instructed the jurors.
COURT RULING: This Court gives great latitude to conclusions drawn by judges who observe trial behavior first hand. [W]e note that the trial court is in a better position to judge whether the prosecutor is unduly sarcastic, his tone of voice, facial expressions, and their effect on the jury, if any.”).
(We find) no reason to overturn the trial court’s conclusion that the prosecutor’s tone had no effect on the verdict. Additionally, although “t is improper . . . to imply unethical conduct on the part of an expert witness in the absence of evidentiary support,”, any improper implication of unethical conduct or burden shifting was remedied when the trial court instructed the jurors that it “specifically found that this witness has not violated any code of ethics as set forth in any document.”
OVERALL CHARGE: Misconduct in Closing argument
CHARGES:
1. Comments about defense witnesses
JM insinuated in his closing argument that defense witness Greene was untruthful. JM discussed Mr. Greene’s candor and encouraged the jurors to infer that his different styles of answering corresponded with the varying truthfulness of his statements. JM stated that Mr. Greene “is somebody that you really can’t trust.”
Counsel have wide latitude to argue reasonable inferences from the evidence, but cannot make insinuations that have no evidentiary support.
COURT RULING: Here, the prosecutor’s conduct was close to crossing the line, but the record did contain facts on which he could fairly base his argument.
JM highlighted his observations that Greene was sometimes less vocal during cross-examination than in direct examination. From this, JM told the jurors that in order to assess Greene’s credibility, they should consider the way he answered questions. In context, the comments were not improper.
2. Comments about defense counsel and defense theory
Throughout the closing argument JM continued to imply that defense counsel was a liar and made other personal attacks. JM invoked the story of Don Quixote and compared the defense’s theory to tilting at windmills. He repeatedly analogized the defense’s evidence in the case to the imaginary monsters in that story. He stated that the defense wanted the jury to “[go] to Neverland” and enter the “Land of Oz.” Hulsey unsuccessfully moved for mistrial based on the “unethical behavior.”
COURT RULING: While commentary about the defense’s theory is common, “[a]n argument that impugns the integrity or honesty of opposing counsel is . . . improper.” The prosecutor’s comments equating defense counsel to Don Quixote were different from those discussing defense theories. The prosecution impugned defense counsel’s integrity by suggesting he was purposely leading the jury on a make-believe expedition.
These improper statements, however, were brief and on this record we cannot say that they affected the jury’s verdict, especially in light of the instruction to the jury that counsel’s arguments are not evidence.
(Additional claims about misconduct in this phase included Misstating the evidence, Disparate theories, Improper vouching for {witness}Patsy Jones).
C. MISCONDUCT IN PENALTY PHASE
CHARGES:
1. Duty of the jury argument (error for the prosecutor to quote poet John Donne at the end of the penalty phase by proclaiming: …” it tolls for each of you to do your duty and return a verdict of death.” (Misconduct exists where “remarks called to the jurors’ attention matters that they should not consider”).
COURT RULING: The context of the remark was not of such magnitude to influence the jurors and cause Hulsey prejudice.
2. Cross-examination of penalty phase experts
“Loud verbose witness attacks began in earnest” as JM cut off answers and raised his voice at Wicks, a psychologist who testified regarding Hulsey’s mental abnormalities. Hulsey objected and the trial court overruled, stating that it was just the prosecutor’s style.
Hulsey also notes that the trial court sustained objections regarding the prosecutor’s tone in both Dr. Globus’ and Dr. Cunningham’s testimony, warning the prosecutor to “keep the tone.” The trial court “admonished JM to not be disrespectful” in his cross-examination with the prison expert, Aiken.
COURT RULING: The trial court observed that the prosecutor’s tone was consistent for all witnesses and that there was no misconduct. As stated above, the trial court is in the best position to gauge whether a counsel’s tone crosses the line into misconduct. Here, Hulsey has given us no reason to disturb the court’s finding.
3. Misstatement of the law
JM misstated the law when he argued that the jury should not consider whether the defendant was high at the time of the shooting because there must be a nexus between the mitigation and the crime. The trial court overruled the objection and stated that the jury could determine what the instructions say and the defense could point that out in rebuttal.
COURT RULING: This misstatement of law was improper. However, the trial court instructed the jurors that they were not required to find a connection between the mitigating circumstance and the crime in order to consider the evidence.
Further, defense counsel explained in rebuttal that there was no need for a nexus between mitigation and the crime. Defense counsel also argued to the jury that the prosecutor was ignoring the instructions and asking the jury to ignore them as well. Any error here was cured.
4. Liar remarks
Hulsey claims JM argued over objection that both defense counsel and defense expert, Dr. Wicks, lied to the jury regarding Hulsey’s IQ. Referring to Dr. Wicks, the prosecutor stated: He lied. He’s a doctor and he is a psychologist and he’s board certified. Give him all that. Put him on the pulpit, but that hero has clay feet. That guy came in here, looked you -- and remember how he looked at you when he was doing direct examination, looked you right in the eye and lied.
After the objection was overruled, the prosecutor explained that the expert misstated what tests he ran and that he “made up a number.”
The record generally shows JM would not let Dr. Wicks explain his reasons for picking a prorated number and why he would have “made up a number.” JM accurately argued that Dr. Wicks “did all these tests and didn’t report them,” but incorrectly stated that Dr. Wicks lied by stating that he completed the two-phase test.
COURT RULING:
To the extent that JM insinuated that Dr. Wicks acted unethically, it was improper; and any insinuation that the time constraints were Dr. Wicks’ fault was also improper.
But any effect this may have had on the jury subsided on redirect, when defense counsel gave Dr. Wicks an opportunity to explain any inconsistencies. Dr. Wicks told the jury he had to prorate the score of one of the tests because he was running out of time and discussed standard protocol. Moreover, the trial court instructed the jury that the arguments of counsel were not evidence.
When assessing cumulative error, this Court “consider whether persistent and pervasive misconduct occurred and whether the cumulative effect of the incidents shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not specific intent, to prejudice the defendant.”
D. CUMALATIVE ERROR
Hulsey claims that JM’S “repeated and pervasive attacks on defense witnesses; improper questions and jury arguments were intentional and calculated to ‘win-by-any-means.’” Hulsey contends there is a reasonable likelihood that the misconduct tainted the verdict.
Here, the lack of respect, poor courtroom decorum, and unnecessary verbal attacks on defense counsel and experts were unbecoming of an Arizona prosecutor, especially one with as much experience as Mr. Martinez.
By engaging in such conduct, a prosecutor places a case in serious danger of mistrial. However, “[w]e do not . . . reverse convictions merely to punish a prosecutor’s misdeeds []or to deter future misconduct.”
We do, though, once again remind prosecutors, and particularly Mr. Martinez (whose misbehavior has been repeatedly noted in prior cases), that they are to act as ministers of justice and exercise professionalism even in the heat of trial.
Nonetheless, Hulsey has failed to show that the actual misconduct in this case so permeated and infected his trial as to render it unfair. The court’s instructions to the jury helped mitigate any impact the cumulative misconduct had.
Hulsey thus failed to show that cumulative error denied him due process.
Jodi Arias appeals murder conviction, cites ‘circus-like’ trial
July 7, 2018
PHOENIX — Jodi Arias is asking an appeals court to overturn her murder conviction in the 2008 death of her former boyfriend, saying a prosecutor’s misconduct and a judge’s failure to control news coverage during the salacious case deprived her of the right to a fair trial.
In the appeal released Friday, Arias’ lawyers said prosecutor Juan Martinez improperly questioned witnesses, ignored rulings on evidence and courted news coverage.
Much speculation on how she made her money and the truckers that would go there would give her some money making opportunites to fund the rest of the trip to and from where she was heading. Remember the long road trip she made out of the way in California to "get her hair done" was her excuse or something like that. Ive always speculated that the reason she went out of the way there was to make some extra funds. I suspect she had a few places that would guarantee her some money making opportunities./QUOTE said:I wondered this as well - she had a few fleeting part time jobs here and there - but moved so many times. She claimed that she and TA had a book listing 1000 places to visit before you die and they'd been "checking places off the list". She also claimed that she was not dependent on TA for any financial support. She got her hair done. Her nails done. She claimed to have a vehicle "better than" TA's. And yet she'd left home as a teenager because she didn't see eye to eye with her parents.
She was particularly attached to her camera - which would have set her back a few hundred dollars. And a laptop computer. Who knows if these items were gifts, but they also demonstrate that she was living beyond her means.
The very same questions struck me when I recently started looking into the Casey Anthony case. She'd been unemployed for more than two years, was living at her parent's house and yet even during the month when little CA was missing - she was lavishing herself with a couple tattoos and regular visits to town to party in clubs. She wasn't living with her parents at this point, so she was either relying on her new boyfriend to support her - or she'd found another, more depraved way to finance her lifestyle. It seems as if no one knew little CA's biological father, so we can most likely rule out the idea that she was living on a blend of welfare benefits and child support.
And Jodi Arias certainly didn't have those 'luxuries', lol.
But in all honesty, I think that Jodi Arias was way too self-obsessed to transform into a truck-stop prostitute. She knew she'd run the risk of being abused and hurt. In my opinion, she wouldn't have taken that sort of risk. And I believe she would have seen it as a very dirty, self-deprecating way to make an easy buck. However, I believe it's totally plausible that she was more of a high-end call girl for more respectable, reliable clients who wouldn't force her into violent sex. Clients who were cashed up, clean and predominantly gentlemanly. Men who would take her out on the town, flaunt her around and then have sex with her at the end of the night. At the very least, I would expect that she was a stripper. She does look pretty comfortable wearing nothing in those photos from June 4th.
We have to remember that this was more than ten years ago and it's only since then that women have been voluntarily and openly sharing their 'nudes' and sexually explicit photos. We have to place Jodi back in the time when we were all shocked to hear about Kim Kardashian's sex tape. Jodi seemed very comfortable with her sexuality whereas TA did not. He didn't particularly want her taking naked photos of himself and would have only done so with the agreement that it be done with his camera, and to be deleted afterwards. She says it took a lot of convincing just to get him to allow photos of himself in the shower - most of which were not sexually graphic in nature at all. Therefore it's probably safe to assume that the photos they took during/after their sexual exploits that afternoon were only done with the intention of immediately deleting them afterwards.