Sentencing and beyond- JA General Discussion #9
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geevee
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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).
Yes, it does seem this is more her vendetta against JM as opposed to the original grounds of the circus trial.
A side note - when the appeal was mainly based on excessive publicity, why had no one mentioned the show HLN created -'After Dark' - it began because of the trial and was primarily all about the trial, with a "jury" to vote on particulars of the day, reporters in court, etc.
That would have been a good point to make about how circus-y it had become, but then of course KC barged in and had to make everything about JM...talk about yer witch hunts.
Weki
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So this is one big conspiracy against JM? They got all the sexual harassment complainants on board, they got Wood’s ex-husband, and Wood’s former friend/blogging buddy on board? All these ppl are just lying? They also somehow influenced the SAO because JM has been relegated to auto-theft crimes and removed from a high profile case (Saucedo)? Why would the SAO bench him over baseless accusations? The SAO acknowledged that JM was out of line in some instances, are they part of the conspiracy too?
Okay then!
As far as the strategy to go after JM with the bar and to use that to buttress a prosecutorial misconduct appeal, that’s plausible. And good strategy! That’s what defense counsel is supposed to do. If you have judges that hate any kind of prosecutorial misconduct then you have a fighting chance. Welcome to the adversarial process and clearly JM had skeletons.
It’s probably safe to say that defense lawyers despise him. The crack he made at Wilmott at sidebar is a good example from a female defense atty’s perspective. That was a sexist and derogatory “joke.” So do I find it hard to believe he’s been sexist at the workplace around subordinates? Not at all!
Ultimately, I believe controlling the “carnival like atmosphere” was under the purview of Judge Stephens! She was a passive and ineffective judge! She should’ve held JM in contempt for making that remark to Wilmott for one thing. She should’ve leashed JM in many other areas but mainly during cross. I’ve seen many judges do it. Hankinson in the recent Dan Markel trial is one good example. Judges have a duty to ensure the process is efficient and the sanctity of the courtroom is protected. Hankinson would’ve eaten JM alive!
Okay then!
As far as the strategy to go after JM with the bar and to use that to buttress a prosecutorial misconduct appeal, that’s plausible. And good strategy! That’s what defense counsel is supposed to do. If you have judges that hate any kind of prosecutorial misconduct then you have a fighting chance. Welcome to the adversarial process and clearly JM had skeletons.
It’s probably safe to say that defense lawyers despise him. The crack he made at Wilmott at sidebar is a good example from a female defense atty’s perspective. That was a sexist and derogatory “joke.” So do I find it hard to believe he’s been sexist at the workplace around subordinates? Not at all!
Ultimately, I believe controlling the “carnival like atmosphere” was under the purview of Judge Stephens! She was a passive and ineffective judge! She should’ve held JM in contempt for making that remark to Wilmott for one thing. She should’ve leashed JM in many other areas but mainly during cross. I’ve seen many judges do it. Hankinson in the recent Dan Markel trial is one good example. Judges have a duty to ensure the process is efficient and the sanctity of the courtroom is protected. Hankinson would’ve eaten JM alive!
POSTS TO FOLLOW…..
I’m editing/summarizing (as much as I can) the AZ Supreme Court’s analysis/ rulings (solely) on JM’s alleged prosecutorial misconduct for each of his death penalty convictions, all of which by AZ law go automatically to the Court for review. I’ve also reformatted the Court’s Opinion doc so it’s easier to see the exact charges and court rulings.
These are the cases:
1. State v Beemon (2002)
2. State v Morris (2005/7)
3. State v Gallardo (2010)
4. State v Lynch (2010)
5. State v Lynch (sentencing retrial; 2015)
6. State v Hulsey (2018)
(Am posting them in reverse chronological order, so Hulsey is first).
I’m editing/summarizing (as much as I can) the AZ Supreme Court’s analysis/ rulings (solely) on JM’s alleged prosecutorial misconduct for each of his death penalty convictions, all of which by AZ law go automatically to the Court for review. I’ve also reformatted the Court’s Opinion doc so it’s easier to see the exact charges and court rulings.
These are the cases:
1. State v Beemon (2002)
2. State v Morris (2005/7)
3. State v Gallardo (2010)
4. State v Lynch (2010)
5. State v Lynch (sentencing retrial; 2015)
6. State v Hulsey (2018)
(Am posting them in reverse chronological order, so Hulsey is first).
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.
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.
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.”
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.
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.
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.
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STATE OF ARIZONA, Appellee, v. MIKE PETER GALLARDO, Appellant. Decided: November 30, 2010
THE CASE: {{On December 9, 2005, Rudy Padilla was murdered at his parents' home in Phoenix. Padilla's father returned from work and saw that a sliding glass door into the house had been broken. He found his son's body in the master bedroom. Padilla's wrists and ankles had been bound, a pillowcase had been tied over his head, and he had been shot once in the back of the head. The bedroom was in disarray; jewelry and a revolver were missing. Telephone records showed that Gallardo had called the Padilla home from his cell phone the day of the murder, and DNA profiles developed from evidence at the crime scene matched Gallardo's profile. Neither Rudy nor his parents knew Gallardo.
Gallardo was indicted for first degree murder, burglary, and kidnapping. After a mistrial for juror misconduct, a second jury was impaneled. This jury convicted Gallardo on all counts. In the aggravation phase, the jury found two aggravating factors: Gallardo had been previously convicted of a serious offense, and the murder was especially cruel.
In the penalty phase, the jury determined Gallardo should receive a death sentence for the murder. The trial court also sentenced Gallardo to concurrent prison terms of 15.75 years for the burglary and kidnapping counts.}}
((Prosecutorial misconduct was one of 6 grounds for appeal)).
COURT: CHARGES
“Gallardo argues that comments made by the State during its penalty phase opening statement and closing argument constituted prosecutorial misconduct and deprived him of a fair trial and due process.”
COURT: STANDARD OF REVIEW
We “will reverse a conviction for prosecutorial misconduct if (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.”
The defendant must show that the offending statements were “so pronounced and persistent” that they “permeate[d] the entire atmosphere of the trial” and “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”
We separately “evaluate each instance of alleged misconduct, and the standard of review depends upon whether [the defendant] objected.”
If Gallardo objected, we review for harmless error; if not, we review only for fundamental error.
CHARGES
1. Reference to Gallardo's Prison Packet
Before the penalty phase, Gallardo filed a motion to limit the scope of rebuttal evidence. Gallardo stated that he intended to present only two categories of mitigation: expert testimony regarding the conditions of confinement in the maximum security units of Arizona prisons and testimony by members of his family about their affection for him and the impact a death sentence would have on them.
Gallardo asked the court to preclude the State from asking witnesses about his “criminal history, institutional history, or any other past events,” and in particular an incident involving a handcuff key, escape attempts, or the expert's conversations with Gallardo. The trial court granted the motion.
COURT RULING: Gallardo contends JM committed misconduct by suggesting in his opening statement that Gallardo's prison packet would illustrate his personal history. Gallardo, however, mischaracterizes the prosecutor's remarks. JM simply stated that Gallardo's expert had not reviewed the Arizona Department of Corrections' records for Gallardo, which had been previously admitted, but instead would talk about the treatment of inmates generally. By noting the limited scope of the expert's opinion, JM did not violate the trial court's ruling on the scope of rebuttal.
2. Reference to Gallardo's Childhood and Intelligence
In his opening statement, JM stated that the jury would hear evidence regarding Gallardo's childhood. Gallardo objected and moved for a mistrial, arguing the statement violated the court's ruling on the scope of rebuttal. The trial court denied a mistrial but ruled that JM could not introduce evidence of Gallardo's childhood or intelligence unless the defense “opened the door” on those issues.
COURT RULING: JM’s statements about the anticipated evidence concerning Gallardo's childhood and intelligence did not violate the court's prior ruling on the motion in limine or otherwise constitute misconduct, given that the judge's ruling precluding such evidence came only after the opening statement.
Moreover, Gallardo later offered testimony by his sister about his family and argued in closing that his family members had been in the courtroom and the jury should consider that “[t]hey care about him.” The defense did not offer evidence regarding Gallardo's intelligence, and JM did not comment on this issue again after the court's ruling.
Even if the comments by JM were improper, we would reverse only if Gallardo established “a ‘reasonable likelihood’ that the ‘misconduct could have affected the jury's verdict.’ “[A]ny improper comments must be so serious that they affected the defendant's right to a fair trial.” The preliminary and final jury instructions noted that “[t]he attorneys' remarks, statements, and arguments are not evidence, but are intended to help you understand the evidence and apply the law.”
Presuming that jurors follow the court's instructions, we conclude that any possible prejudice from JM’s statements was cured by the trial court's instructions.
3. Comparison of Victim and Gallardo
In closing argument, Gallardo argued that a life sentence was “sufficient punishment” given the “severe restriction” and “isolat[ion]” of prison. In response, JM said that maximum security inmates are allowed to watch television, receive magazines, make phone calls, and see visitors. Noting that victim impact statements could rebut mitigation, JM then said, “Do you think [Rudy's father is] going to be able to call his son, Rudy․” The defense objected to the comparison between Gallardo and the victim, and the trial court sustained the objection.
COURT RULING: Even if JM’s statements were improper, reversal is not required. The trial court instructed the jurors “not to be swayed by mere sympathy not related to the evidence presented during this phase” and to disregard any question to which the judge sustained an objection. These instructions negated the effect of the prosecutor's statements.
4. Reference to Mitigation Witness's Fees
In the penalty phase, Gallardo presented expert testimony from a retired corrections director about the conditions of maximum security facilities in Arizona. During cross examination, JM elicited testimony concerning the expert's fees and potential bias. During closing argument, JM characterized this testimony as an inconsistent statement,
Gallardo objected to the argument as misleading, and the trial court sustained the objection. JM persisted with the line of argument and the trial court twice sustained further objections.
COURT RULING: A prosecutor should not repeat an argument after it has been the subject of a sustained objection. Pool v. Superior Court (noting that repetition of questions to which objection has been sustained is misconduct).
Although the repeated statements by the prosecutor were improper, Gallardo's objections were sustained and the trial court instructed the jury to “disregard questions ․ that were withdrawn or to which objections were sustained.” Again, because “we presume jurors follow the court's instructions,” any prejudice that may have resulted from the prosecutor's argument was cured by the trial court's instructions.
5. Misstatement of the Law
Gallardo further claims that it was improper for JM to suggest in closing that the jurors must vote for death if they found no mitigation.
COURT RULING: We have previously rejected this argument: “Under our sentencing scheme ․ given the findings of one or more aggravators, a juror must vote to impose a sentence of death if he or she determines there is no mitigation at all or none sufficiently substantial to warrant a sentence of less than death.”
6. Cumulative Effect
Gallardo argues that even if no single incident of misconduct warrants reversal, the deliberate and persistent conduct of the prosecutor deprived him of a fair trial.
COURT RULING: We 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 a specific intent, to prejudice the defendant.”
The record does not suggest pervasive prosecutorial misconduct that deprived Gallardo of a fair trial.
(Video of oral argument & the complete Court opinion) STATE v. GALLARDO - Nov 2nd, 2010
THE CASE: {{On December 9, 2005, Rudy Padilla was murdered at his parents' home in Phoenix. Padilla's father returned from work and saw that a sliding glass door into the house had been broken. He found his son's body in the master bedroom. Padilla's wrists and ankles had been bound, a pillowcase had been tied over his head, and he had been shot once in the back of the head. The bedroom was in disarray; jewelry and a revolver were missing. Telephone records showed that Gallardo had called the Padilla home from his cell phone the day of the murder, and DNA profiles developed from evidence at the crime scene matched Gallardo's profile. Neither Rudy nor his parents knew Gallardo.
Gallardo was indicted for first degree murder, burglary, and kidnapping. After a mistrial for juror misconduct, a second jury was impaneled. This jury convicted Gallardo on all counts. In the aggravation phase, the jury found two aggravating factors: Gallardo had been previously convicted of a serious offense, and the murder was especially cruel.
In the penalty phase, the jury determined Gallardo should receive a death sentence for the murder. The trial court also sentenced Gallardo to concurrent prison terms of 15.75 years for the burglary and kidnapping counts.}}
((Prosecutorial misconduct was one of 6 grounds for appeal)).
COURT: CHARGES
“Gallardo argues that comments made by the State during its penalty phase opening statement and closing argument constituted prosecutorial misconduct and deprived him of a fair trial and due process.”
COURT: STANDARD OF REVIEW
We “will reverse a conviction for prosecutorial misconduct if (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.”
The defendant must show that the offending statements were “so pronounced and persistent” that they “permeate[d] the entire atmosphere of the trial” and “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”
We separately “evaluate each instance of alleged misconduct, and the standard of review depends upon whether [the defendant] objected.”
If Gallardo objected, we review for harmless error; if not, we review only for fundamental error.
CHARGES
1. Reference to Gallardo's Prison Packet
Before the penalty phase, Gallardo filed a motion to limit the scope of rebuttal evidence. Gallardo stated that he intended to present only two categories of mitigation: expert testimony regarding the conditions of confinement in the maximum security units of Arizona prisons and testimony by members of his family about their affection for him and the impact a death sentence would have on them.
Gallardo asked the court to preclude the State from asking witnesses about his “criminal history, institutional history, or any other past events,” and in particular an incident involving a handcuff key, escape attempts, or the expert's conversations with Gallardo. The trial court granted the motion.
COURT RULING: Gallardo contends JM committed misconduct by suggesting in his opening statement that Gallardo's prison packet would illustrate his personal history. Gallardo, however, mischaracterizes the prosecutor's remarks. JM simply stated that Gallardo's expert had not reviewed the Arizona Department of Corrections' records for Gallardo, which had been previously admitted, but instead would talk about the treatment of inmates generally. By noting the limited scope of the expert's opinion, JM did not violate the trial court's ruling on the scope of rebuttal.
2. Reference to Gallardo's Childhood and Intelligence
In his opening statement, JM stated that the jury would hear evidence regarding Gallardo's childhood. Gallardo objected and moved for a mistrial, arguing the statement violated the court's ruling on the scope of rebuttal. The trial court denied a mistrial but ruled that JM could not introduce evidence of Gallardo's childhood or intelligence unless the defense “opened the door” on those issues.
COURT RULING: JM’s statements about the anticipated evidence concerning Gallardo's childhood and intelligence did not violate the court's prior ruling on the motion in limine or otherwise constitute misconduct, given that the judge's ruling precluding such evidence came only after the opening statement.
Moreover, Gallardo later offered testimony by his sister about his family and argued in closing that his family members had been in the courtroom and the jury should consider that “[t]hey care about him.” The defense did not offer evidence regarding Gallardo's intelligence, and JM did not comment on this issue again after the court's ruling.
Even if the comments by JM were improper, we would reverse only if Gallardo established “a ‘reasonable likelihood’ that the ‘misconduct could have affected the jury's verdict.’ “[A]ny improper comments must be so serious that they affected the defendant's right to a fair trial.” The preliminary and final jury instructions noted that “[t]he attorneys' remarks, statements, and arguments are not evidence, but are intended to help you understand the evidence and apply the law.”
Presuming that jurors follow the court's instructions, we conclude that any possible prejudice from JM’s statements was cured by the trial court's instructions.
3. Comparison of Victim and Gallardo
In closing argument, Gallardo argued that a life sentence was “sufficient punishment” given the “severe restriction” and “isolat[ion]” of prison. In response, JM said that maximum security inmates are allowed to watch television, receive magazines, make phone calls, and see visitors. Noting that victim impact statements could rebut mitigation, JM then said, “Do you think [Rudy's father is] going to be able to call his son, Rudy․” The defense objected to the comparison between Gallardo and the victim, and the trial court sustained the objection.
COURT RULING: Even if JM’s statements were improper, reversal is not required. The trial court instructed the jurors “not to be swayed by mere sympathy not related to the evidence presented during this phase” and to disregard any question to which the judge sustained an objection. These instructions negated the effect of the prosecutor's statements.
4. Reference to Mitigation Witness's Fees
In the penalty phase, Gallardo presented expert testimony from a retired corrections director about the conditions of maximum security facilities in Arizona. During cross examination, JM elicited testimony concerning the expert's fees and potential bias. During closing argument, JM characterized this testimony as an inconsistent statement,
Gallardo objected to the argument as misleading, and the trial court sustained the objection. JM persisted with the line of argument and the trial court twice sustained further objections.
COURT RULING: A prosecutor should not repeat an argument after it has been the subject of a sustained objection. Pool v. Superior Court (noting that repetition of questions to which objection has been sustained is misconduct).
Although the repeated statements by the prosecutor were improper, Gallardo's objections were sustained and the trial court instructed the jury to “disregard questions ․ that were withdrawn or to which objections were sustained.” Again, because “we presume jurors follow the court's instructions,” any prejudice that may have resulted from the prosecutor's argument was cured by the trial court's instructions.
5. Misstatement of the Law
Gallardo further claims that it was improper for JM to suggest in closing that the jurors must vote for death if they found no mitigation.
COURT RULING: We have previously rejected this argument: “Under our sentencing scheme ․ given the findings of one or more aggravators, a juror must vote to impose a sentence of death if he or she determines there is no mitigation at all or none sufficiently substantial to warrant a sentence of less than death.”
6. Cumulative Effect
Gallardo argues that even if no single incident of misconduct warrants reversal, the deliberate and persistent conduct of the prosecutor deprived him of a fair trial.
COURT RULING: We 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 a specific intent, to prejudice the defendant.”
The record does not suggest pervasive prosecutorial misconduct that deprived Gallardo of a fair trial.
(Video of oral argument & the complete Court opinion) STATE v. GALLARDO - Nov 2nd, 2010
REFRESHER. EXTRACTS FROM THE “STATEMENT OF FACTS” PORTION OF THE KILLER’S OPENING BRIEF TO THE COA
(This and the next set of extracts relates to her what attorneys argued in their reply brief about the strength of JM’s case against her at trial).
EXTRACTS
This appeal is about Jodi Arias and T.A., whose lives were bound together by secrets. (…) Arias was a spiritual seeker, always interested in self-improvement. After leaving Vegas, they talked on the phone every night. By the week’s end, Arias broke up with D.B. Arias and T.A. met the following weekend at their friends’ residence in California, for a PPL event. Once everyone was asleep, T.A. arrived at Arias’s bedroom for a night time rendezvous. T.A. initiated sexual contact. Arias knew that T.A. was Mormon. He wore his temple garments during that sexual encounter.
Arias believed T.A. was superior to her in all matters concerning religion. The Law of Chastity forbids sexual contact between unmarried persons. T.A. instructed Arias that the church permitted sexual contact but not vaginal intercourse. Arias trusted T.A. when he assured her that oral and anal sex between unmarried persons were acceptable.
T.A. assured her that the church approved of their sexual relationship. Arias felt that T.A. had authority to act for God.
Arias learned that T.A. was seeing other women. In fact, his relationship with Arias was a secret because T.A. treated her as “just a friend” in public. Arias decided to break up with T.A. after they returned from a vacation. They broke up over the phone on June 29, 2007, but the next day, T.A. called her to tell her he was “horny.” Arias found him hard to resist. Encouraged by T.A., Arias moved to Mesa in August of 2007.
Arias and T.A. behaved as a couple even though they were not exclusive. T.A. promised to change, and Arias still loved him. T.A. criticized Arias’s male friends and the few men she dated. He told her which men she could date. Their sexual relationship continued. Arias had sex with T.A. even when it was unpleasant, because she enjoyed his attention. But she did not consent to all of his fantasies. She described herself as a “doormat.”
Arias aspired to work as a wedding photographer. She did not earn a lot of money through PPL. T.A. frequently took loans from Arias, who still waitressed. Arias described herself as a willing participant in their sexual activities, but acknowledged that sometimes she felt like used toilet paper or a prostitute.T.A. enjoyed acting out fantasies involving sex in public, anal sex, situations where he expected Arias to wear boys’ underwear, and asking Arias to perform oral sex on him while he wore a business suit.
In January 2008, their relationship changed when Arias discovered T.A. masturbating while viewing a picture of a little boy wearing only underwear. T.A. told Arias that he was sexually attracted to children. After that, Arias admitted that one reason she had sex with T.A. was to keep him from molesting children.
During an argument, T.A. threatened to reveal Arias’s secrets, and she responded by threatening to reveal his sexual attraction to children. After a calmer discussion of their disagreement, Arias apologized to T.A. for threatening to reveal his shameful secret. Arias learned that having sex with T.A. relieved his stress and ended his anger. Afterwards he would be calm again.
However, there were times when T.A.’s rage resulted in physical abuse directed at Arias.
The first incident of physical abuse occurred in March of 2007. T.A. grabbed Arias by the wrist when she asked him about his relationship. He went upstairs and banged his head against the wall.
The second incident occurred in October, 2007 when T.A. pushed her down and would not let her leave his house. He called her family cruel names. She felt suicidal afterwards. T.A. apologized shortly afterward. He asked her to return so they could have sex. She agreed because she did not want to hurt his feelings.
The third incident occurred on January 22, 2008, the day after Arias discovered that T.A. was a pedophile. T.A. asked to borrow money from Arias but she declined. Angry, T.A. shook her, then body slammed her. He kicked her in the ribs and when she put her hand out to protect herself, he kicked her hand injuring her left ring finger. After he calmed down, he made a splint for Arias’s injured finger.
Another incident of abuse occurred on or about March 2, 2008, when Arias told T.A. that she was moving back to California. (T.A. was driving the car, Arias was next to him in the passenger seat. T.A. backhanded her and hit her on her neck. T.A. choked her on April 8, 2008, when they discussed her dating other men. He choked her so hard that she passed out.
Arias’s relationship with T.A. was a roller coaster. T.A. was not only physically abusive but could be mentally and emotionally cruel too. T.A. used his status to control and demean Arias. (T.A. called Arias a *advertiser censored*, *advertiser censored*, a *advertiser censored*, a three hole wonder, and other derogatory names. T.A. could also be very nice to Arias. Arias liked it best when she and T.A. were alone and having sex, because he acted like he loved her and she enjoyed his attention.
Arias decided to move back to California. On the day she left for California, T.A. stood on the doorstep as she drove away, giving her the “double bird,” followed by a mean text.
Arias continued to communicate with T.A. after she returned to California. They had phone sex. The phone sex recording illustrates T.A.’s sexual interest in children.
She moved back to California in April, 2008. They recorded a sex tape over the phone in May, 2008. They carried on an extended, heated argument via texts and IM's agreed to visit T.A. on June 3, 2008.
Arias planned a trip to Utah to visit a man that she wanted to get to know better, R.B. She wanted to take photographs at Utah’s national parks. T.A. knew about her trip.
She rented a car in Redding. She asked for a white car instead of a red car because she did not want to stand out. She stopped along the way in Santa Cruz and Monterey. She visited D.B. who lived near Monterey. She borrowed two gas cans from him. She purchased another gas can at a Walmart but then decided to return it. A Walmart employee testified that there was no record of anyone returning a gas can on the day in question.
When Arias was near Pasadena she talked to T.A. T.A. “guilted” her into visiting him in Mesa. She arrived on June 4, 2008, at about 4 a.m. T.A. was awake.
T.A. showed Arias his new punching bag and punched it a few times for her. They slept until noon. They had sex. T.A. wanted to tie Arias up. He loosely tied her wrists to the bed.She was naked and he wore his Mormon garments. They took photos of themselves having sex. When they finished, she took a shower and T.A. went downstairs.
Arias started a load of laundry and prepared to leave. Arias tried to show T.A. some photos taken on one of their trips, but the CD would not work on his computer due to a virus. T.A. angrily threw the CD against the wall, and then bent Arias over his desk for sex. Afterwards, he told her to go clean up. Then they went upstairs to photograph T.A. in the shower.
Arias accidentally dropped T.A.’s camera. T.A. became enraged. He left the shower, picked Arias up and slammed her to the ground, calling her a “stupid idiot.” Arias thought he would kill her.
Arias ran and grabbed a handgun from the closet shelf. She pointed the gun at T.A., hoping that he would stop. The gun discharged. Arias did not realize that she shot T.A. He continued after her and said, “ kill you .” She feared for her life. The next thing Arias remembered was driving in the middle of nowhere. She stopped to drink water and clean the blood from her hands.
She believed T.A. was probably dead and she was in deep trouble. She visited R.B. as planned. She did not stay long, but returned home and waited to be arrested.
Arias’s friend told her that T.A. was dead. Arias talked to Mesa Detective Flores on the phone regarding the murder investigation, but did not tell him what she knew about T.A.’s death. Arias considered suicide. She was going to go to Monterey to be away from her family when she killed herself.
Arias initially told the police that she was not in Mesa and knew nothing about T.A.’s death. Flores confronted her about the photos that were found in the camera at the scene, showing that she was present minutes before T.A.’s death. Arias then told the police that home invaders killed T.A. while Arias ran away.
Arias eventually admitted to killing T.A. in self-defense.
----------------------------------------------------------------------
Note: from advice article on writing an effective appellate opening brief (https://www.law.georgetown.edu/wp content/uploads/2018/07/StatementofFactsinaBriefFinal.pdf )
Do not deceptively characterize the facts. Such characterization damages your credibility. Accurately state the facts in a way that most favors your client, but do not try to make the Statement of Facts persuasive by being dishonest or deceitful.
Include all legally relevant facts, even if they do not favor your client. Leaving out key facts causes you to lose credibility, may be unethical and a violation of the Rules of Professional Responsibility. When you fail to include facts that work against your client, you lose the opportunity to frame that negative fact in a way that is less damaging. Ignoring a harmful fact does not make it go away; it simply leaves the problem unexplained and undefended.
Emphasize the strengths and minimize the weaknesses of your case. In most briefs, there will be a negative fact about your client that, in the interest of full disclosure, you must reveal. When you do this, focus on providing the best possible representation for your client’s specific situation. If it is critically important for the court to know that your client has done something distasteful, frame it in the best way possible, but do disclose it. You cannot change what happened; you are only working to change how you can accurately present the situation in a persuasive way.
(This and the next set of extracts relates to her what attorneys argued in their reply brief about the strength of JM’s case against her at trial).
EXTRACTS
This appeal is about Jodi Arias and T.A., whose lives were bound together by secrets. (…) Arias was a spiritual seeker, always interested in self-improvement. After leaving Vegas, they talked on the phone every night. By the week’s end, Arias broke up with D.B. Arias and T.A. met the following weekend at their friends’ residence in California, for a PPL event. Once everyone was asleep, T.A. arrived at Arias’s bedroom for a night time rendezvous. T.A. initiated sexual contact. Arias knew that T.A. was Mormon. He wore his temple garments during that sexual encounter.
Arias believed T.A. was superior to her in all matters concerning religion. The Law of Chastity forbids sexual contact between unmarried persons. T.A. instructed Arias that the church permitted sexual contact but not vaginal intercourse. Arias trusted T.A. when he assured her that oral and anal sex between unmarried persons were acceptable.
T.A. assured her that the church approved of their sexual relationship. Arias felt that T.A. had authority to act for God.
Arias learned that T.A. was seeing other women. In fact, his relationship with Arias was a secret because T.A. treated her as “just a friend” in public. Arias decided to break up with T.A. after they returned from a vacation. They broke up over the phone on June 29, 2007, but the next day, T.A. called her to tell her he was “horny.” Arias found him hard to resist. Encouraged by T.A., Arias moved to Mesa in August of 2007.
Arias and T.A. behaved as a couple even though they were not exclusive. T.A. promised to change, and Arias still loved him. T.A. criticized Arias’s male friends and the few men she dated. He told her which men she could date. Their sexual relationship continued. Arias had sex with T.A. even when it was unpleasant, because she enjoyed his attention. But she did not consent to all of his fantasies. She described herself as a “doormat.”
Arias aspired to work as a wedding photographer. She did not earn a lot of money through PPL. T.A. frequently took loans from Arias, who still waitressed. Arias described herself as a willing participant in their sexual activities, but acknowledged that sometimes she felt like used toilet paper or a prostitute.T.A. enjoyed acting out fantasies involving sex in public, anal sex, situations where he expected Arias to wear boys’ underwear, and asking Arias to perform oral sex on him while he wore a business suit.
In January 2008, their relationship changed when Arias discovered T.A. masturbating while viewing a picture of a little boy wearing only underwear. T.A. told Arias that he was sexually attracted to children. After that, Arias admitted that one reason she had sex with T.A. was to keep him from molesting children.
During an argument, T.A. threatened to reveal Arias’s secrets, and she responded by threatening to reveal his sexual attraction to children. After a calmer discussion of their disagreement, Arias apologized to T.A. for threatening to reveal his shameful secret. Arias learned that having sex with T.A. relieved his stress and ended his anger. Afterwards he would be calm again.
However, there were times when T.A.’s rage resulted in physical abuse directed at Arias.
The first incident of physical abuse occurred in March of 2007. T.A. grabbed Arias by the wrist when she asked him about his relationship. He went upstairs and banged his head against the wall.
The second incident occurred in October, 2007 when T.A. pushed her down and would not let her leave his house. He called her family cruel names. She felt suicidal afterwards. T.A. apologized shortly afterward. He asked her to return so they could have sex. She agreed because she did not want to hurt his feelings.
The third incident occurred on January 22, 2008, the day after Arias discovered that T.A. was a pedophile. T.A. asked to borrow money from Arias but she declined. Angry, T.A. shook her, then body slammed her. He kicked her in the ribs and when she put her hand out to protect herself, he kicked her hand injuring her left ring finger. After he calmed down, he made a splint for Arias’s injured finger.
Another incident of abuse occurred on or about March 2, 2008, when Arias told T.A. that she was moving back to California. (T.A. was driving the car, Arias was next to him in the passenger seat. T.A. backhanded her and hit her on her neck. T.A. choked her on April 8, 2008, when they discussed her dating other men. He choked her so hard that she passed out.
Arias’s relationship with T.A. was a roller coaster. T.A. was not only physically abusive but could be mentally and emotionally cruel too. T.A. used his status to control and demean Arias. (T.A. called Arias a *advertiser censored*, *advertiser censored*, a *advertiser censored*, a three hole wonder, and other derogatory names. T.A. could also be very nice to Arias. Arias liked it best when she and T.A. were alone and having sex, because he acted like he loved her and she enjoyed his attention.
Arias decided to move back to California. On the day she left for California, T.A. stood on the doorstep as she drove away, giving her the “double bird,” followed by a mean text.
Arias continued to communicate with T.A. after she returned to California. They had phone sex. The phone sex recording illustrates T.A.’s sexual interest in children.
She moved back to California in April, 2008. They recorded a sex tape over the phone in May, 2008. They carried on an extended, heated argument via texts and IM's agreed to visit T.A. on June 3, 2008.
Arias planned a trip to Utah to visit a man that she wanted to get to know better, R.B. She wanted to take photographs at Utah’s national parks. T.A. knew about her trip.
She rented a car in Redding. She asked for a white car instead of a red car because she did not want to stand out. She stopped along the way in Santa Cruz and Monterey. She visited D.B. who lived near Monterey. She borrowed two gas cans from him. She purchased another gas can at a Walmart but then decided to return it. A Walmart employee testified that there was no record of anyone returning a gas can on the day in question.
When Arias was near Pasadena she talked to T.A. T.A. “guilted” her into visiting him in Mesa. She arrived on June 4, 2008, at about 4 a.m. T.A. was awake.
T.A. showed Arias his new punching bag and punched it a few times for her. They slept until noon. They had sex. T.A. wanted to tie Arias up. He loosely tied her wrists to the bed.She was naked and he wore his Mormon garments. They took photos of themselves having sex. When they finished, she took a shower and T.A. went downstairs.
Arias started a load of laundry and prepared to leave. Arias tried to show T.A. some photos taken on one of their trips, but the CD would not work on his computer due to a virus. T.A. angrily threw the CD against the wall, and then bent Arias over his desk for sex. Afterwards, he told her to go clean up. Then they went upstairs to photograph T.A. in the shower.
Arias accidentally dropped T.A.’s camera. T.A. became enraged. He left the shower, picked Arias up and slammed her to the ground, calling her a “stupid idiot.” Arias thought he would kill her.
Arias ran and grabbed a handgun from the closet shelf. She pointed the gun at T.A., hoping that he would stop. The gun discharged. Arias did not realize that she shot T.A. He continued after her and said, “ kill you .” She feared for her life. The next thing Arias remembered was driving in the middle of nowhere. She stopped to drink water and clean the blood from her hands.
She believed T.A. was probably dead and she was in deep trouble. She visited R.B. as planned. She did not stay long, but returned home and waited to be arrested.
Arias’s friend told her that T.A. was dead. Arias talked to Mesa Detective Flores on the phone regarding the murder investigation, but did not tell him what she knew about T.A.’s death. Arias considered suicide. She was going to go to Monterey to be away from her family when she killed herself.
Arias initially told the police that she was not in Mesa and knew nothing about T.A.’s death. Flores confronted her about the photos that were found in the camera at the scene, showing that she was present minutes before T.A.’s death. Arias then told the police that home invaders killed T.A. while Arias ran away.
Arias eventually admitted to killing T.A. in self-defense.
----------------------------------------------------------------------
Note: from advice article on writing an effective appellate opening brief (https://www.law.georgetown.edu/wp content/uploads/2018/07/StatementofFactsinaBriefFinal.pdf )
Do not deceptively characterize the facts. Such characterization damages your credibility. Accurately state the facts in a way that most favors your client, but do not try to make the Statement of Facts persuasive by being dishonest or deceitful.
Include all legally relevant facts, even if they do not favor your client. Leaving out key facts causes you to lose credibility, may be unethical and a violation of the Rules of Professional Responsibility. When you fail to include facts that work against your client, you lose the opportunity to frame that negative fact in a way that is less damaging. Ignoring a harmful fact does not make it go away; it simply leaves the problem unexplained and undefended.
Emphasize the strengths and minimize the weaknesses of your case. In most briefs, there will be a negative fact about your client that, in the interest of full disclosure, you must reveal. When you do this, focus on providing the best possible representation for your client’s specific situation. If it is critically important for the court to know that your client has done something distasteful, frame it in the best way possible, but do disclose it. You cannot change what happened; you are only working to change how you can accurately present the situation in a persuasive way.
THE REST FROM KILLER’S OPENING BRIEF, STATEMENT OF FACTS/THE CASE
(I omitted copying everything noted from Horn’s testimony about TA’s autopsy. Other than those details and the "facts" included in the post above about gun, rental car, gas cans, & chronology, this is EVERYTHING her attorneys wrote about what transpired at trial).
1. The medical examiner, Dr. Horn, performed an autopsy and noticed: (…) The cut throat was the most significant injury. Both the slit throat and gunshot to the head would cause immediate unconsciousness. Horn believed that T.A. was first stabbed, then his throat cut, and then shot.
2. Horn could not explain why Flores testified that the gunshot wound occurred first in time. He did not remember talking to Flores about the case at all. He admitted his sequence of events was speculative.
3. Defense witness, psychologist Dr. Samuels, opined that Arias suffered from PTSD.
4. Defense witness, therapist Alyce LaViolette, opined that Arias and T.A. were involved in an abusive relationship. She believed Arias suffered from Battered Woman’s Syndrome.
5. The state called psychologist Dr. DeMarte. She testified that:
- There was no abusive relationship.
- Arias was not a battered woman.
-Arias suffered from borderline personality disorder.
6. The defense called psychologist Dr. Geffner in surrebuttal. Geffner testified that:
- Young Dr. DeMarte used flawed methods.
- She misrepresented her experience and qualifications.
- A person who showed numerous symptoms, such as Arias, presented a
cry for help from someone who was in severe distress.
-It was possible that the gunshot to T.A.’s head did not incapacitate him.
The jury found Arias guilty of first degree murder.
(I omitted copying everything noted from Horn’s testimony about TA’s autopsy. Other than those details and the "facts" included in the post above about gun, rental car, gas cans, & chronology, this is EVERYTHING her attorneys wrote about what transpired at trial).
1. The medical examiner, Dr. Horn, performed an autopsy and noticed: (…) The cut throat was the most significant injury. Both the slit throat and gunshot to the head would cause immediate unconsciousness. Horn believed that T.A. was first stabbed, then his throat cut, and then shot.
2. Horn could not explain why Flores testified that the gunshot wound occurred first in time. He did not remember talking to Flores about the case at all. He admitted his sequence of events was speculative.
3. Defense witness, psychologist Dr. Samuels, opined that Arias suffered from PTSD.
4. Defense witness, therapist Alyce LaViolette, opined that Arias and T.A. were involved in an abusive relationship. She believed Arias suffered from Battered Woman’s Syndrome.
5. The state called psychologist Dr. DeMarte. She testified that:
- There was no abusive relationship.
- Arias was not a battered woman.
-Arias suffered from borderline personality disorder.
6. The defense called psychologist Dr. Geffner in surrebuttal. Geffner testified that:
- Young Dr. DeMarte used flawed methods.
- She misrepresented her experience and qualifications.
- A person who showed numerous symptoms, such as Arias, presented a
cry for help from someone who was in severe distress.
-It was possible that the gunshot to T.A.’s head did not incapacitate him.
The jury found Arias guilty of first degree murder.
FROM STATE’S STATEMENT OF FACTS/THE CASE, IN THEIR OPENING BRIEF
The evidence presented at trial and viewed in the light most favorable to upholding the conviction for first degree murder shows Arias killed Travis Alexander with premeditation and not, as she claimed at trial, in self-defense.
A. ARIAS AND ALEXANDER. Arias met Alexander in September 2006, at a convention sponsored by their mutual employer PrePaid Legal. They began
dating in February 2007Because he lived in Mesa and she in California, their relationship was primarily a long-distance one. But Arias began to suspect Alexander of being unfaithful to her after she surreptitiously read messages on his phone. They broke up in June 2007. But they did not stop talking, and Arias moved to Mesa that summer. Her apartment was a 15-minute drive from Alexander’s house. Arias and Alexander supposedly had a “don’t-ask-don’t-tell policy” about dating other people. Still, they continued to carry on a sexual relationship.
In August 2007, Arias went to Alexander’s house unannounced. Peeking through a window, she observed Alexander “making out” with another woman. Upset, she ran from the house. Another time, Arias came into Alexander’s home unannounced while he was with a girlfriend. When Arias saw the woman, she again ran from the house.
In April 2008, Arias moved back to California, staying with her grandparents in Yreka. She and Alexander continued to communicate and at least once engaged in a sexually explicit phone call. On May 19, Alexander told a female friend via instant message that Arias was stalking him and eavesdropping on his social media conversations. He said he was afraid of her.
On May 26, Alexander became angry with Arias in a series of digital messages. Arias had done something and wanted to explain herself over the phone because “it’s too incriminating for any email/voicemail.” Not satisfied with her explanation, Alexander called her disparaging names and said he had “never in [his] life been hurt so bad by someone.” He called her “evil” and said she was “the worst thing that ever happened to [him].”
During this time, Alexander had begun showing interest in another woman, M. Hall. Although she did not reciprocate, Hall agreed to go with Alexander on a trip to Cancun as friends. They were due to leave on June 10. By May 28, Arias and Alexander had discussed the trip. She knew he had an extra ticket but was taking someone else.
The same day, police responded to a reported burglary at the Yreka home. The burglary was “unusual” because the burglar had not taken various bills and small items throughout the house. Arias reported cash missing from her bedroom but her laptop was still there. Her grandfather’s safe was missing only one of his four guns: a .25 caliber pistol.
B. ARIAS’S TRIP TO ARIZONA. On June 2, 2008, Arias traveled 90 miles from Yreka to Redding to rent a car instead of using her own. She told the rental car manager she only intended to drive around town. She refused his selection of a red car and asked for something less “loud.”
Arias spent the night in Monterey. The next morning, she borrowed two five-gallon gasoline cans from an ex-boyfriend. Arias had called him several times about the gas cans before her trip. She purchased a third gas can at a Walmart near Salinas. Although she claimed to have returned the can, a Walmart representative said there were no records of such a return. Arias testified she wanted the cans to store presumably-cheaper gasoline purchased in Nevada and Utah. But Arias filled the cans with gas purchased in Pasadena. As Arias drove toward Mesa, she powered off her cell phone. Her front license plate was detached, lying in her floorboard, and her back plate was upside down.
By her own admission, Arias arrived in Mesa around 4 a.m. on June 4. Later that day, Arias killed Alexander. Arias had plans to meet a man, R. Burns, for a date in West Jordan, Utah on June 4. Burns attempted to call her four times between 9:00 a.m. and 9:30 p.m., but each call went straight to voicemail. When Arias later called Burns around 9:30 p.m., she told him her phone’s battery died because she lost her charger and she bought a new charger at a gas station. At trial, however, she claimed to have found her phone charger under the passenger seat of the rental car.
Arias also called Alexander’s phone on the evening of June 4 near the Nevada Border. She left a voicemail purporting to make future plans and asking him to call her back. The next day in Utah, a police officer saw Arias’s rear license plate was upside down. The officer initiated a traffic stop and Arias claimed friends must have played a trick on her. The officer let her go. Arias then met with friends and went on the date with Burns. She told a friend she hoped she could remain friends with Alexander so that, one day, their children would play together.
Arias returned the rental car in Redding on June 6. She drove the car 1,925 miles. All of the car’s floor mats were missing, and there were stains on the back seat resembling “Kool-aid.” The next day, Arias sent an email to Alexander, apologizing for not coming to see him in Mesa.
C. DISCOVERING ALEXANDER’S BODY. Hall was unable to reach Alexander, so she and a few friends went to his house on June 9, 2008. Gaining entry into his locked bedroom suite, they found his naked body slumped in the shower. A responding officer noted Alexander appeared to have been dead for some time. There was a large amount of blood in the bathroom and the hallway connecting it to the bedroom. There was an especially large pool of blood on the carpet at the end of the hallway. It appeared that some of the surfaces had been washed with water.
(Omitting the thorough review of the forensic evidence found at crime scene).
(Camera). Timestamps indicated these photos were taken between 1:42 and 1:47 p.m. on June 4, 2008. Another batch of photos, taken between 5:22 and 5:30 p.m., showed Alexander posing in the shower. These were followed by three deleted photos. The first, taken at 5:31 p.m. was an out-of-focus shot of the bathroom ceiling. The second, taken at 5:32 p.m., was an upside-down photo of Alexander’s body lying in blood on the bathroom floor with Arias’s shoe-clad foot between his body and the camera. The third, taken at 5:33 p.m., showed Alexander lying in the hallway between his bathroom and bedroom. Deleting a photo from that particular camera was a fairly involved task, requiring five steps.
Medical Examiner Dr. Kevin Horn Alexander (testified that TA) suffered a total of 27 knife wounds and a gunshot wound to the head (prosecutor’s uncontroverted summary).) Alexander had defensive wounds on his hands, likely obtained while attempting to ward off knife strikes. He also suffered knife wounds to his shoulder, abdomen, chest, back, and the back of his head.
All of these injuries would produce bleeding and thus occurred before Alexander’s death. …wounds on the outside of his chest and another stab slipped through the ribs and punctured the pericardial sac around his heart. This wound was enough to cause eventual, though not immediate, unconsciousness and death. In addition, Alexander’s throat was cut open from ear to ear . Finally, Alexander was shot in the head.
Having performed over 6,000 autopsies, Dr. Horn opined that because the throat slash and gunshot would have been immediately incapacitating and fatal, they must have occurred after the other injuries, including the stab to the heart. Dr. Horn was clear that the gunshot wound could not have occurred first because Alexander would have been unable to resist the subsequent knife strikes that caused his defense wounds. Further, Alexander must have been alive when his throat was cut, but it was not clear whether he was still alive when he was shot.
(end {my} part one).
The evidence presented at trial and viewed in the light most favorable to upholding the conviction for first degree murder shows Arias killed Travis Alexander with premeditation and not, as she claimed at trial, in self-defense.
A. ARIAS AND ALEXANDER. Arias met Alexander in September 2006, at a convention sponsored by their mutual employer PrePaid Legal. They began
dating in February 2007Because he lived in Mesa and she in California, their relationship was primarily a long-distance one. But Arias began to suspect Alexander of being unfaithful to her after she surreptitiously read messages on his phone. They broke up in June 2007. But they did not stop talking, and Arias moved to Mesa that summer. Her apartment was a 15-minute drive from Alexander’s house. Arias and Alexander supposedly had a “don’t-ask-don’t-tell policy” about dating other people. Still, they continued to carry on a sexual relationship.
In August 2007, Arias went to Alexander’s house unannounced. Peeking through a window, she observed Alexander “making out” with another woman. Upset, she ran from the house. Another time, Arias came into Alexander’s home unannounced while he was with a girlfriend. When Arias saw the woman, she again ran from the house.
In April 2008, Arias moved back to California, staying with her grandparents in Yreka. She and Alexander continued to communicate and at least once engaged in a sexually explicit phone call. On May 19, Alexander told a female friend via instant message that Arias was stalking him and eavesdropping on his social media conversations. He said he was afraid of her.
On May 26, Alexander became angry with Arias in a series of digital messages. Arias had done something and wanted to explain herself over the phone because “it’s too incriminating for any email/voicemail.” Not satisfied with her explanation, Alexander called her disparaging names and said he had “never in [his] life been hurt so bad by someone.” He called her “evil” and said she was “the worst thing that ever happened to [him].”
During this time, Alexander had begun showing interest in another woman, M. Hall. Although she did not reciprocate, Hall agreed to go with Alexander on a trip to Cancun as friends. They were due to leave on June 10. By May 28, Arias and Alexander had discussed the trip. She knew he had an extra ticket but was taking someone else.
The same day, police responded to a reported burglary at the Yreka home. The burglary was “unusual” because the burglar had not taken various bills and small items throughout the house. Arias reported cash missing from her bedroom but her laptop was still there. Her grandfather’s safe was missing only one of his four guns: a .25 caliber pistol.
B. ARIAS’S TRIP TO ARIZONA. On June 2, 2008, Arias traveled 90 miles from Yreka to Redding to rent a car instead of using her own. She told the rental car manager she only intended to drive around town. She refused his selection of a red car and asked for something less “loud.”
Arias spent the night in Monterey. The next morning, she borrowed two five-gallon gasoline cans from an ex-boyfriend. Arias had called him several times about the gas cans before her trip. She purchased a third gas can at a Walmart near Salinas. Although she claimed to have returned the can, a Walmart representative said there were no records of such a return. Arias testified she wanted the cans to store presumably-cheaper gasoline purchased in Nevada and Utah. But Arias filled the cans with gas purchased in Pasadena. As Arias drove toward Mesa, she powered off her cell phone. Her front license plate was detached, lying in her floorboard, and her back plate was upside down.
By her own admission, Arias arrived in Mesa around 4 a.m. on June 4. Later that day, Arias killed Alexander. Arias had plans to meet a man, R. Burns, for a date in West Jordan, Utah on June 4. Burns attempted to call her four times between 9:00 a.m. and 9:30 p.m., but each call went straight to voicemail. When Arias later called Burns around 9:30 p.m., she told him her phone’s battery died because she lost her charger and she bought a new charger at a gas station. At trial, however, she claimed to have found her phone charger under the passenger seat of the rental car.
Arias also called Alexander’s phone on the evening of June 4 near the Nevada Border. She left a voicemail purporting to make future plans and asking him to call her back. The next day in Utah, a police officer saw Arias’s rear license plate was upside down. The officer initiated a traffic stop and Arias claimed friends must have played a trick on her. The officer let her go. Arias then met with friends and went on the date with Burns. She told a friend she hoped she could remain friends with Alexander so that, one day, their children would play together.
Arias returned the rental car in Redding on June 6. She drove the car 1,925 miles. All of the car’s floor mats were missing, and there were stains on the back seat resembling “Kool-aid.” The next day, Arias sent an email to Alexander, apologizing for not coming to see him in Mesa.
C. DISCOVERING ALEXANDER’S BODY. Hall was unable to reach Alexander, so she and a few friends went to his house on June 9, 2008. Gaining entry into his locked bedroom suite, they found his naked body slumped in the shower. A responding officer noted Alexander appeared to have been dead for some time. There was a large amount of blood in the bathroom and the hallway connecting it to the bedroom. There was an especially large pool of blood on the carpet at the end of the hallway. It appeared that some of the surfaces had been washed with water.
(Omitting the thorough review of the forensic evidence found at crime scene).
(Camera). Timestamps indicated these photos were taken between 1:42 and 1:47 p.m. on June 4, 2008. Another batch of photos, taken between 5:22 and 5:30 p.m., showed Alexander posing in the shower. These were followed by three deleted photos. The first, taken at 5:31 p.m. was an out-of-focus shot of the bathroom ceiling. The second, taken at 5:32 p.m., was an upside-down photo of Alexander’s body lying in blood on the bathroom floor with Arias’s shoe-clad foot between his body and the camera. The third, taken at 5:33 p.m., showed Alexander lying in the hallway between his bathroom and bedroom. Deleting a photo from that particular camera was a fairly involved task, requiring five steps.
Medical Examiner Dr. Kevin Horn Alexander (testified that TA) suffered a total of 27 knife wounds and a gunshot wound to the head (prosecutor’s uncontroverted summary).) Alexander had defensive wounds on his hands, likely obtained while attempting to ward off knife strikes. He also suffered knife wounds to his shoulder, abdomen, chest, back, and the back of his head.
All of these injuries would produce bleeding and thus occurred before Alexander’s death. …wounds on the outside of his chest and another stab slipped through the ribs and punctured the pericardial sac around his heart. This wound was enough to cause eventual, though not immediate, unconsciousness and death. In addition, Alexander’s throat was cut open from ear to ear . Finally, Alexander was shot in the head.
Having performed over 6,000 autopsies, Dr. Horn opined that because the throat slash and gunshot would have been immediately incapacitating and fatal, they must have occurred after the other injuries, including the stab to the heart. Dr. Horn was clear that the gunshot wound could not have occurred first because Alexander would have been unable to resist the subsequent knife strikes that caused his defense wounds. Further, Alexander must have been alive when his throat was cut, but it was not clear whether he was still alive when he was shot.
(end {my} part one).
grammieto5
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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.” Well this is good news, yeah? I hope so anyway
FROM STATE’S STATEMENT OF FACTS/THE CASE, IN THEIR OPENING BRIEF (PART 2 OF 2)
D. ARIAS’S STATEMENTS. On June 9, 2008, Arias left a voicemail for the responding homicide detective, Esteban Flores. Flores returned her call the next day. Arias told him the last time she spoke with Alexander was June 3. She asked when the murder happened and whether the killer used a weapon, particularly a gun. At trial, she admitted she made this call “in an effort to pretend like [she] was never there.”
(Similarly, Arias attended Alexander’s memorial service because she “thought that if [she] didn’t show up it would look suspicious because Travis and [her] were close and a lot of people knew that.” At the service, she introduced herself to Hall. Hall did not know her.
Local police arrested Arias in Yreka on July 15, 2008. Detective Flores interviewed her the same day. Arias insisted she was “absolutely not” at Alexander’s house on June 4, 2008. She claimed she did not go “anywhere near” Phoenix. She held to this story even after Detective Flores showed her the photos of her at Alexander’s house on the day of his death. She insisted, “if Travis were here today he would tell you that it wasn’t me.” She added, “if I’m found guilty, I don’t have a life.”
At trial, Arias admitted the story was not true and was instead what she “thought would comport with what the forensics would show” in order to “create a way for [her] to not have been responsible for it.” As she explained, “I was also very scared of what might happen. I didn’t want my family to know I had done that. And I just couldn’t bring myself to say that I did that.”
The next day, Arias admitted to traveling to Alexander’s house on June 4 and to having sex with him. But instead of admitting to killing him, she claimed two intruders broke into the house and shot him. She claimed one of the intruders, a woman, wanted to kill her but the other, a man, let her live after threatening her family. Arias supposedly did not tell this story at first to protect her family. But at trial, she admitted the story was “all BS
Arias smiled while posing for her booking photo. She did so because she thought Alexander wanted her to smile and because she “knew it would be all over the internet.” Arias gave multiple interviews to TV news outlets, including 48 Hours, Inside Edition, and ABC News. One of the 48 Hours interviews occurred in August 2008 while Arias was detained in Yreka and before she had been extradited back to Arizona. In those interviews, she continued to insist she did not kill Alexander. She told 48 Hours, “I would never hurt Travis.”
She also repeated her intruder story to both 48 Hours and Inside Edition. To Inside Edition she said, “No jury is going to convict me.” While she claimed at the time this was because she was innocent, she later said at trial she had planned to avoid conviction by killing herself.
Arias was evaluated by a defense psychologist, Dr. R. Samuels, to whom she continued to tell the intruder story. When taking the post-traumatic stress diagnostic scale used to diagnose post-traumatic stress disorder (“PTSD”), Arias answered she had suffered trauma from “nonsexual assault” from a “stranger.”
In 2011, jail security confiscated a magazine Arias had given to a visitor. Arias had written in pencil a series of short phrases spread out over multiple pages. Together, they read:
You f’ucked up. What you told my attorney next day directly contradicts what I have been saying for over a year. Get down here ASAP and see me before you talk to them again and before you testify so we can fix this. Interview was excellent, must talk ASAP.
The magazine also contained the handwritten name and telephone number of an ABC News producer whom she had met several times in 2009. Arias’s ex-boyfriend, M. McCartney was scheduled to meet with the prosecutor a few days later.
E. THE PROSECUTION. Following the indictment, the State filed a notice of intent to seek the death penalty. On September 15, Arias noticed as defenses “mere presence,” “no criminal intent,” and “mistaken identity.” But two days later, she changed her defenses to “self-defense” and “justification.” Notwithstanding, Arias claimed at trial she “confessed” in the Spring of 2010 that both of her stories were untrue. She instead admitted to killing Alexander on June 4, 2008. But this time, she said she acted in self-defense.
Arias claimed that on January 21, 2008, she walked into Alexander’s bedroom as he allegedly masturbated to a photograph of a young boy. She further claimed he admitted to being sexually attracted to children. Arias kept a journal, and while she did not write an entry for that day, the next entry on January 24, 2008 read, “I haven’t written because there has been nothing noteworthy to report.”
Moreover, Arias told a defense psychotherapist, A. LaViolette, that the picture of the child was on Alexander’s computer rather than being a physical photograph. At any rate, police did not find pictures of children—sexually explicit or otherwise—at Alexander’s house or on his computer.
Arias further claimed Alexander was physically abusive. Specifically, she claimed that during an argument in April 2008, he “body slammed” her onto the floor of his bedroom and kicked her hand, breaking her left ring finger. Although she claimed at trial her finger was permanently crooked, it appeared normal in a photo she took with her sister on May 15, 2008.
She also claimed that in March 2008, Alexander slapped her when she told him about her plan to move back to California. Yet this conflicts with her journal account of the event:
Well, Travis and I talked some more in his car, and we were able to say some things, at least I was, that we’ve been wanting to say for a long time. It was the beginning of a bitter-sweet closure. ... I leaned in to give him a hug and a kiss on his cheek to say goodbye and he turned his head so that our lips met. It was a series of 3 very tender, very slow, very soft kisses. I love his lips. ... we ended up being naughty again. That will be another advantage to me moving away, since we can’t seem to keep our hands off of each other.
Arias claimed she would not have written about the abuse in her journal because of her belief in the “law of attraction,” which supposedly forbade writing negative things about people. She also claimed Alexander reviewed her journal and ripped out any pages that disparaged him. Both claims conflicted with her journal entry of August 26, 2007:
Well, I guess it’s a good thing that nobody else reads this, because I write right now that I love Travis Victor Alexander so completely that I don’t know any other way to be. I wish I did, because at times my heart is sick and saddened over all that has come to pass. I don’t understand it, and at times I still have a hard time believing it. He makes me sick, and he makes me happy. He makes me sad & miserable, and he makes me feel uplifted and beautiful. All ... in all, I shouldn’t be wording it as if he “makes” me feel these things. It all originates from w[ith]in. All of my darkness is a result of my own creation, it is the fruit of my thoughts planted continually and w[ith] too much repetition.
Arias’s explanation also conflicted with an entry dated January 24, 2008:
Well, speaking of Travis, he frustrates me and thrills me. I love love love him, and he sings to me, goes out of his way for me, displays massive amounts of unconditional love for me in countless ways. I’m almost haunted by it. But it still remains that I cannot marry him. I ... can’t quite put my finger on it, but something is just off w[ith] that boy .... I certainly wasn’t thrilled—no—I was DEVASTATED when I discovered that he wasn’t being faithful to me. I just don’t get why men cheat!!!! ... It is a subtle feeling. But it doesn’t go away. It nags. It pulls at the solar plexus until it’s justified through the discovery of ugly hidden truths. Infidelity is so awful and causes ridiculous pain. ... I’m going to stop writing about this right now. It is of no benefit. I could just rip out the last few pages, but I’ll refrain from doing that.
In her first interview with Detective Flores, Arias said there “was no reason” why she would ever “want to hurt” Alexander because “he never raped me” and “except for some mean words that he said ... there’s no reason why” she would want to hurt him. On the other hand, she reported four abusive incidents to the State’s psychologist, Dr. J. DeMarte, and at trial. But to a non-testifying defense psychologist, she reported substantially more incidents—so many that the psychologist thought they caused Arias to suffer post-traumatic stress disorder.
As to the killing itself, Arias claimed that after having sex with Alexander on June 4, 2008, they mutually decided to take the photos of him posing in the shower. While taking the photos, Arias said she dropped the camera. This supposedly angered Alexander, who picked Arias up off the ground and “body slammed” her onto the bathroom floor. Arias said she rolled away and ran into an adjoining closet. There, she climbed onto a high shelf and grabbed a handgun Alexander supposedly kept.
Arias said Alexander entered the closet and she ran back into the bathroom. There, she pointed the gun at him. She said he lunged at her “like a linebacker” and grabbed her by the waist. Then, “the gun went off.” She claimed she “didn’t mean to shoot him or anything” and “didn’t even think [she] was holding the trigger.” She “didn’t know that [Alexander] got shot until Flores told” her. Alexander then supposedly tacked her and shouted that he would kill her.
Arias then claimed to have a complete lapse in memory; other than a fleeting image, she said her next full memory was driving her rental car in the desert. In contrast, Arias previously told Detective Flores she did not think Alexander “would allow” her to take photos of him posing in the shower.
She also told LaViolette she shot Alexander in the closet, not in the bathroom. Arias also repeatedly told Detective Flores that Alexander did not own a gun. The police did not find any evidence of a gun, such as a case or ammunition.
F. CONVICTION AND SENTENCE. Following a 67-day trial, the jury found Arias guilty of first-degree, premeditated murder. They further found, as an aggravating circumstance, that Arias committed the murder in an especially cruel manner. A four-day penalty phase ended in a hung jury. A second, 51-day penalty phase also ended in a hung jury. On April 13, 2015, the trial court sentenced Arias to natural life in prison without the possibility of release.
D. ARIAS’S STATEMENTS. On June 9, 2008, Arias left a voicemail for the responding homicide detective, Esteban Flores. Flores returned her call the next day. Arias told him the last time she spoke with Alexander was June 3. She asked when the murder happened and whether the killer used a weapon, particularly a gun. At trial, she admitted she made this call “in an effort to pretend like [she] was never there.”
(Similarly, Arias attended Alexander’s memorial service because she “thought that if [she] didn’t show up it would look suspicious because Travis and [her] were close and a lot of people knew that.” At the service, she introduced herself to Hall. Hall did not know her.
Local police arrested Arias in Yreka on July 15, 2008. Detective Flores interviewed her the same day. Arias insisted she was “absolutely not” at Alexander’s house on June 4, 2008. She claimed she did not go “anywhere near” Phoenix. She held to this story even after Detective Flores showed her the photos of her at Alexander’s house on the day of his death. She insisted, “if Travis were here today he would tell you that it wasn’t me.” She added, “if I’m found guilty, I don’t have a life.”
At trial, Arias admitted the story was not true and was instead what she “thought would comport with what the forensics would show” in order to “create a way for [her] to not have been responsible for it.” As she explained, “I was also very scared of what might happen. I didn’t want my family to know I had done that. And I just couldn’t bring myself to say that I did that.”
The next day, Arias admitted to traveling to Alexander’s house on June 4 and to having sex with him. But instead of admitting to killing him, she claimed two intruders broke into the house and shot him. She claimed one of the intruders, a woman, wanted to kill her but the other, a man, let her live after threatening her family. Arias supposedly did not tell this story at first to protect her family. But at trial, she admitted the story was “all BS
Arias smiled while posing for her booking photo. She did so because she thought Alexander wanted her to smile and because she “knew it would be all over the internet.” Arias gave multiple interviews to TV news outlets, including 48 Hours, Inside Edition, and ABC News. One of the 48 Hours interviews occurred in August 2008 while Arias was detained in Yreka and before she had been extradited back to Arizona. In those interviews, she continued to insist she did not kill Alexander. She told 48 Hours, “I would never hurt Travis.”
She also repeated her intruder story to both 48 Hours and Inside Edition. To Inside Edition she said, “No jury is going to convict me.” While she claimed at the time this was because she was innocent, she later said at trial she had planned to avoid conviction by killing herself.
Arias was evaluated by a defense psychologist, Dr. R. Samuels, to whom she continued to tell the intruder story. When taking the post-traumatic stress diagnostic scale used to diagnose post-traumatic stress disorder (“PTSD”), Arias answered she had suffered trauma from “nonsexual assault” from a “stranger.”
In 2011, jail security confiscated a magazine Arias had given to a visitor. Arias had written in pencil a series of short phrases spread out over multiple pages. Together, they read:
You f’ucked up. What you told my attorney next day directly contradicts what I have been saying for over a year. Get down here ASAP and see me before you talk to them again and before you testify so we can fix this. Interview was excellent, must talk ASAP.
The magazine also contained the handwritten name and telephone number of an ABC News producer whom she had met several times in 2009. Arias’s ex-boyfriend, M. McCartney was scheduled to meet with the prosecutor a few days later.
E. THE PROSECUTION. Following the indictment, the State filed a notice of intent to seek the death penalty. On September 15, Arias noticed as defenses “mere presence,” “no criminal intent,” and “mistaken identity.” But two days later, she changed her defenses to “self-defense” and “justification.” Notwithstanding, Arias claimed at trial she “confessed” in the Spring of 2010 that both of her stories were untrue. She instead admitted to killing Alexander on June 4, 2008. But this time, she said she acted in self-defense.
Arias claimed that on January 21, 2008, she walked into Alexander’s bedroom as he allegedly masturbated to a photograph of a young boy. She further claimed he admitted to being sexually attracted to children. Arias kept a journal, and while she did not write an entry for that day, the next entry on January 24, 2008 read, “I haven’t written because there has been nothing noteworthy to report.”
Moreover, Arias told a defense psychotherapist, A. LaViolette, that the picture of the child was on Alexander’s computer rather than being a physical photograph. At any rate, police did not find pictures of children—sexually explicit or otherwise—at Alexander’s house or on his computer.
Arias further claimed Alexander was physically abusive. Specifically, she claimed that during an argument in April 2008, he “body slammed” her onto the floor of his bedroom and kicked her hand, breaking her left ring finger. Although she claimed at trial her finger was permanently crooked, it appeared normal in a photo she took with her sister on May 15, 2008.
She also claimed that in March 2008, Alexander slapped her when she told him about her plan to move back to California. Yet this conflicts with her journal account of the event:
Well, Travis and I talked some more in his car, and we were able to say some things, at least I was, that we’ve been wanting to say for a long time. It was the beginning of a bitter-sweet closure. ... I leaned in to give him a hug and a kiss on his cheek to say goodbye and he turned his head so that our lips met. It was a series of 3 very tender, very slow, very soft kisses. I love his lips. ... we ended up being naughty again. That will be another advantage to me moving away, since we can’t seem to keep our hands off of each other.
Arias claimed she would not have written about the abuse in her journal because of her belief in the “law of attraction,” which supposedly forbade writing negative things about people. She also claimed Alexander reviewed her journal and ripped out any pages that disparaged him. Both claims conflicted with her journal entry of August 26, 2007:
Well, I guess it’s a good thing that nobody else reads this, because I write right now that I love Travis Victor Alexander so completely that I don’t know any other way to be. I wish I did, because at times my heart is sick and saddened over all that has come to pass. I don’t understand it, and at times I still have a hard time believing it. He makes me sick, and he makes me happy. He makes me sad & miserable, and he makes me feel uplifted and beautiful. All ... in all, I shouldn’t be wording it as if he “makes” me feel these things. It all originates from w[ith]in. All of my darkness is a result of my own creation, it is the fruit of my thoughts planted continually and w[ith] too much repetition.
Arias’s explanation also conflicted with an entry dated January 24, 2008:
Well, speaking of Travis, he frustrates me and thrills me. I love love love him, and he sings to me, goes out of his way for me, displays massive amounts of unconditional love for me in countless ways. I’m almost haunted by it. But it still remains that I cannot marry him. I ... can’t quite put my finger on it, but something is just off w[ith] that boy .... I certainly wasn’t thrilled—no—I was DEVASTATED when I discovered that he wasn’t being faithful to me. I just don’t get why men cheat!!!! ... It is a subtle feeling. But it doesn’t go away. It nags. It pulls at the solar plexus until it’s justified through the discovery of ugly hidden truths. Infidelity is so awful and causes ridiculous pain. ... I’m going to stop writing about this right now. It is of no benefit. I could just rip out the last few pages, but I’ll refrain from doing that.
In her first interview with Detective Flores, Arias said there “was no reason” why she would ever “want to hurt” Alexander because “he never raped me” and “except for some mean words that he said ... there’s no reason why” she would want to hurt him. On the other hand, she reported four abusive incidents to the State’s psychologist, Dr. J. DeMarte, and at trial. But to a non-testifying defense psychologist, she reported substantially more incidents—so many that the psychologist thought they caused Arias to suffer post-traumatic stress disorder.
As to the killing itself, Arias claimed that after having sex with Alexander on June 4, 2008, they mutually decided to take the photos of him posing in the shower. While taking the photos, Arias said she dropped the camera. This supposedly angered Alexander, who picked Arias up off the ground and “body slammed” her onto the bathroom floor. Arias said she rolled away and ran into an adjoining closet. There, she climbed onto a high shelf and grabbed a handgun Alexander supposedly kept.
Arias said Alexander entered the closet and she ran back into the bathroom. There, she pointed the gun at him. She said he lunged at her “like a linebacker” and grabbed her by the waist. Then, “the gun went off.” She claimed she “didn’t mean to shoot him or anything” and “didn’t even think [she] was holding the trigger.” She “didn’t know that [Alexander] got shot until Flores told” her. Alexander then supposedly tacked her and shouted that he would kill her.
Arias then claimed to have a complete lapse in memory; other than a fleeting image, she said her next full memory was driving her rental car in the desert. In contrast, Arias previously told Detective Flores she did not think Alexander “would allow” her to take photos of him posing in the shower.
She also told LaViolette she shot Alexander in the closet, not in the bathroom. Arias also repeatedly told Detective Flores that Alexander did not own a gun. The police did not find any evidence of a gun, such as a case or ammunition.
F. CONVICTION AND SENTENCE. Following a 67-day trial, the jury found Arias guilty of first-degree, premeditated murder. They further found, as an aggravating circumstance, that Arias committed the murder in an especially cruel manner. A four-day penalty phase ended in a hung jury. A second, 51-day penalty phase also ended in a hung jury. On April 13, 2015, the trial court sentenced Arias to natural life in prison without the possibility of release.
IN THEIR REPLY BRIEF, KILLER’S ATTORNEYS TRY TO PERSUADE THE COA THAT “OVERWHELMNG EVIDENCE OF GUILT” NEED NOT BE CONSIDERED AS AN IMPEDIMENT TO OVERTURNING HER CONVICTION.
BECAUSE, THEY ARGUE, THERE REALLY WASN’T CONVINCING EVIDENCE OF PREMEDITATION. AND, PROVING/DISPROVING PREMEDITATION WASN’T EVEN WHAT WAS KEY AT TRIAL.
THE KILLER’S STATE OF MIND AT THE TIME SHE KILLED TRAVIS IS WHAT MATTERED MOST (WHICH IS WHY/HOW JM’S PERVASIVE MISCONDUCT WHEN CROSS EXAMINING SAMUELS AND LAVIOLETTE PREVENTED THE JURY FROM REACHING A JUST VERDICT).
EXTRACTS FROM THEIR REPLY BRIEF
A. PREMEDITATION. Appellee argued that evidence of premeditation was “overwhelming.” Appellee points to the “stolen gun,” when there is no evidence that the gun used in the killing was the same gun stolen from Arias’s grandfather. Further, there was no evidence that Arias was the one who stole the gun from her grandfather. That evidence was improperly admitted through the use of hearsay. But the prosecutor used this improperly admitted evidence to argue premeditation and now on appeal it is again an argument to support a claim of harmless error.
Appellee argued that Arias concealed her trip to Mesa. She rented a car in her own name instead of using her own car. She stopped to visit D.B. along the way. She kept the receipts from her trip in a shoe box, thus documenting this “secret” trip. She moved away from T.A. long before he decided to go to Cancun with another woman who also had rejected him as a potential spouse. One of the reasons she moved away from T.A. was the continued abuse, evidenced by the scathing writings he sent her.
Proving premeditation was an essential element to first degree murder. The prosecutor was able to tie Arias’s actions to premeditation because the court erred when it allowed DeMarte to testify about Arias’s mental state after the crime.
((The prosecutor argued that the crime scene did not support sudden quarrel or heat of passion and that the scene indicated “something else.” The prosecutor argued that “She actually took some time to delete some photographs from the camera. She actually took time to make sure she didn’t get the bloody footprints on to the carpet. She took time to put the camera in the washing machine. And she took some extra time to kind of wipe up the scene, drag him back stick him in the shower.”
The prosecutor connected DeMarte’s testimony about the planning and organizing that took place after the killing to premeditation. He told the jury, “So there is this premeditation aspect. So she staged the scene at that point.” DeMarte testified that Arias was capable of planning and organizing. The prosecutor then used that testimony to bolster his argument that Arias planned, organized and committed premeditated murder)).
B. ABUSE (GOES TO SELF-DEFENSE) As for the “uncorroborated” acts of physical abuse, Arias certainly isn’t the first woman to testify that she suffered physical abuse where no one else was a witness to the violence. She is not the first woman who did not report domestic violence to authorities. She is not the first woman who did not photograph injuries sustained as a result of domestic violence. She is not the first woman to continue to love her abuser.
Appellee asserts, without explaining, that Arias’s self-defense claim was “physiologically impossible.” But the state’s theory of events as elicited at the Chronis Hearing was consistent with Arias’s testimony. Arias testified that she shot T.A. first when she pointed T.A.’s gun at him hoping to stop him, and the gun went off. The medical examiner testified that he could not be certain about the timing of the injuries.
The existence of wounds on T.A.’s hands led the medical examiner to suggest that they were defensive wounds. The crime scene looked like a “wildebeest migration” went through it, according to the prosecutor. Even the state’s version of the series of events that led to T.A.’s death was murky at best.
C. KILLER ATTORNEYS’ EXPLICIT ASSERTIONS ABOUT "NOT OVERWHELMING"
1. The evidence of guilt on the key questions at trial was not overwhelming.
2. The key question was whether Arias reacted as a domestic violence victim during the incident, given there was no dispute she killed the victim.
3. The evidence against her domestic violence claim, and related claims regarding PTSD and memory loss, was not overwhelming.
4. This is the same kind of reframing of the key questions for the discussion of evidence as occurred in Hughes. That Court noted that there was never much doubt that the defendant had done what he was charged with, so its discussion of the evidence focused on prosecutorial misconduct in relation to the insanity defense. Specifically, the Court noted that the evidence of the defendant’s guilt was overwhelming, but the evidence of his sanity was not.
5. Similarly, Arias’s state of mind was the key question at trial and was hotly contested. (NOTE: Nah. This is just factually inaccurate/ untrue).
BECAUSE, THEY ARGUE, THERE REALLY WASN’T CONVINCING EVIDENCE OF PREMEDITATION. AND, PROVING/DISPROVING PREMEDITATION WASN’T EVEN WHAT WAS KEY AT TRIAL.
THE KILLER’S STATE OF MIND AT THE TIME SHE KILLED TRAVIS IS WHAT MATTERED MOST (WHICH IS WHY/HOW JM’S PERVASIVE MISCONDUCT WHEN CROSS EXAMINING SAMUELS AND LAVIOLETTE PREVENTED THE JURY FROM REACHING A JUST VERDICT).
EXTRACTS FROM THEIR REPLY BRIEF
A. PREMEDITATION. Appellee argued that evidence of premeditation was “overwhelming.” Appellee points to the “stolen gun,” when there is no evidence that the gun used in the killing was the same gun stolen from Arias’s grandfather. Further, there was no evidence that Arias was the one who stole the gun from her grandfather. That evidence was improperly admitted through the use of hearsay. But the prosecutor used this improperly admitted evidence to argue premeditation and now on appeal it is again an argument to support a claim of harmless error.
Appellee argued that Arias concealed her trip to Mesa. She rented a car in her own name instead of using her own car. She stopped to visit D.B. along the way. She kept the receipts from her trip in a shoe box, thus documenting this “secret” trip. She moved away from T.A. long before he decided to go to Cancun with another woman who also had rejected him as a potential spouse. One of the reasons she moved away from T.A. was the continued abuse, evidenced by the scathing writings he sent her.
Proving premeditation was an essential element to first degree murder. The prosecutor was able to tie Arias’s actions to premeditation because the court erred when it allowed DeMarte to testify about Arias’s mental state after the crime.
((The prosecutor argued that the crime scene did not support sudden quarrel or heat of passion and that the scene indicated “something else.” The prosecutor argued that “She actually took some time to delete some photographs from the camera. She actually took time to make sure she didn’t get the bloody footprints on to the carpet. She took time to put the camera in the washing machine. And she took some extra time to kind of wipe up the scene, drag him back stick him in the shower.”
The prosecutor connected DeMarte’s testimony about the planning and organizing that took place after the killing to premeditation. He told the jury, “So there is this premeditation aspect. So she staged the scene at that point.” DeMarte testified that Arias was capable of planning and organizing. The prosecutor then used that testimony to bolster his argument that Arias planned, organized and committed premeditated murder)).
B. ABUSE (GOES TO SELF-DEFENSE) As for the “uncorroborated” acts of physical abuse, Arias certainly isn’t the first woman to testify that she suffered physical abuse where no one else was a witness to the violence. She is not the first woman who did not report domestic violence to authorities. She is not the first woman who did not photograph injuries sustained as a result of domestic violence. She is not the first woman to continue to love her abuser.
Appellee asserts, without explaining, that Arias’s self-defense claim was “physiologically impossible.” But the state’s theory of events as elicited at the Chronis Hearing was consistent with Arias’s testimony. Arias testified that she shot T.A. first when she pointed T.A.’s gun at him hoping to stop him, and the gun went off. The medical examiner testified that he could not be certain about the timing of the injuries.
The existence of wounds on T.A.’s hands led the medical examiner to suggest that they were defensive wounds. The crime scene looked like a “wildebeest migration” went through it, according to the prosecutor. Even the state’s version of the series of events that led to T.A.’s death was murky at best.
C. KILLER ATTORNEYS’ EXPLICIT ASSERTIONS ABOUT "NOT OVERWHELMING"
1. The evidence of guilt on the key questions at trial was not overwhelming.
2. The key question was whether Arias reacted as a domestic violence victim during the incident, given there was no dispute she killed the victim.
3. The evidence against her domestic violence claim, and related claims regarding PTSD and memory loss, was not overwhelming.
4. This is the same kind of reframing of the key questions for the discussion of evidence as occurred in Hughes. That Court noted that there was never much doubt that the defendant had done what he was charged with, so its discussion of the evidence focused on prosecutorial misconduct in relation to the insanity defense. Specifically, the Court noted that the evidence of the defendant’s guilt was overwhelming, but the evidence of his sanity was not.
5. Similarly, Arias’s state of mind was the key question at trial and was hotly contested. (NOTE: Nah. This is just factually inaccurate/ untrue).
KILLER’S ATTORNEYS TO COA, REPLY BRIEF TO THE STATE’S OPENING BRIEF: JUDGE STEPHENS WAS A BAD, BIASED JUDGE WHO REPEATEDLY ABUSED HER DISCRETION, ESPECIALLY IN HER RULINGS ON PUBLICITY AND YES, PROSECUTORIAL MISCONDUCT.
A. PUBLICITY.
1. It is up to the court to maintain the safety of trial participants. It is up to the court to protect a defendant’s right to a fair trial. A court that allows the media to portray a trial for entertainment purposes abdicates its duty to the constitution and the defendant. That is exactly what happened in this case.
The trial court allowed the media free rein. When the prosecutor took advantage of the live-stream by acting out for the cameras, the court allowed him to pursue his “style” of lawyering.
--------------------------------
(WHOA!!) When the defense objected to the court’s seeming disregard for due process, the court responded by finding that defense counsel’s argument was disrespectful, unprofessional and may have violated ethical rules.
She warned him that she would consider what action to take, if any. Defense counsel responded by moving to withdraw, noting the chilling effect the court’s words had on his ability to defend his client.
Contrary to Appellee’s argument that the trial court did not threaten defense counsel, she threatened to report him to the State Bar. The court gave the prosecutor expansive leeway in his prosecution of Arias, but threatened defense counsel with a bar complaint when defense counsel advocated for Arias.
It demonstrates the court’s reluctance to control the prosecutor’s tendency to “act out” in front of the cameras in the courtroom. In fact, the court took displeasure when defense counsel noted her enabling behavior for the record. Defense counsel’s effort to protect Arias’s right to a fair trial only annoyed the court. (WHOA!!)
------------------------------
2. Appellee argued that Arias herself caused the media circus. In a classic example of projection, Appellee identified the prosecutor’s faults and then projected them onto Arias.
** Who signed autographs outside of the courthouse? Was that Arias? No, it was the prosecutor.
Who took photos with ribbon wearing media types outside of the courthouse? Was that Arias? No, it was the prosecutor.
Who threw evidence onto the floor in front of the cameras during trial? Was that Arias? No, that was the prosecutor.
Who frequently yelled at defense witnesses during cross examination? Was that Arias? No, that was the prosecutor.
Who disparaged defense counsel while the trial was being livestreamed to the world? Was that Arias? No, that was the prosecutor.
Who released trial evidence to the media outside of trial? Was that Arias? No, that was the prosecutor.
Who harassed defense experts in front of the cameras during cross-examination? Was that Arias? No, that was the prosecutor.
Who told the court that if he had it his way he’d be on TV every day? Was that Arias? No, that was the prosecutor.
Who wanted the witnesses to be allowed to watch the live feed of the trial before they testified? Was that Arias? No, that was the prosecutor.
Who posed with someone from the Dr. Drew Show during trial? Was that Arias? No, that was the prosecutor.
Who interacted with spectators outside of the courthouse during trial? Was that Arias? No, that was the prosecutor.
This is what happens when the court sacrifices the solemnity of a criminal trial for entertaining the masses.
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B. DEFERENCE TO THE TRIAL COURT ABOUT HER RULINGS ON PROSECUTORIAL MISCONDUCT
1. (The State wants to) narrow this Court’s review by advocating for more deference to the trial court than is warranted by the facts or law. With regard to Appellee’s arguments that this Court should defer to the trial court on individually weighed instances of misconduct, cross-examination of Dr. Samuels cross-examination of Alyce LaViolette), Arias relies on their opening brief arguments for why the trial court abused its discretion in denying relief for this misconduct.
2. (The State) also noted that the trial court found any cumulative prejudice did not amount to a denial of due process, and this Court should defer to the trial court’s “repeated, updating conclusion that the prosecutor’s behavior did not permeate the atmosphere of the trial with unfairness.”
3. This argument is mistaken for two reasons. First, it asks this Court to abdicate its review and instead defer to the trial court on conclusions of law, rather than its findings of fact. Second, it asks this Court to defer to conclusions based on erroneous findings of fact, as the trial court excluded many instances of misconduct and so could not have reached an accurate assessment of cumulative error.
4. (The State) is mistaken that this Court should defer to the trial court’s conclusion on the ultimate legal question: whether cumulative prejudice from the prosecutor’s misconduct denied Arias a fair trial. Deciding whether persistent and pervasive misconduct denied Arias her right to a fair trial is a constitutional question under both state and federal due process.
5. While appellate courts generally review the trial court’s ruling on a claim of improper prosecutorial conduct for abuse of discretion, constitutional issues are reviewed de novo (COA weighs & applies their own choice of law(s), independent of evaluating what the trial judge did or did not do). With regard to allegations of due process violations, appellate courts conducts de novo (their own review). Even issues of prosecutorial misconduct involving mixed questions of fact and law are reviewed de novo (their own review).
6. (The State) is mistaken that this Court should defer to the trial court’s conclusion about whether cumulative error occurred when the trial court’s analysis excludes many instances of misconduct. A lower court’s decision will be affirmed unless it applied the wrong legal rule or its application of the correct legal standard resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.
A trial court abuses its discretion when the reasons given for its ruling are clearly untenable, the record does not substantially support its decision or a discretionary finding of fact is not justified by, and clearly against, reason and evidence.
7. The trial court did not believe that much of the misconduct outlined in Arias’s Opening Brief was misconduct and so its assessment of the weight of the cumulative misconduct and whether the misconduct permeated the trial were truncated. Its legal conclusions were based on incorrect factual underpinnings, making it an abuse of discretion. Therefore, even if this Court were inclined to defer to the trial court’s conclusion on the ultimate legal question, it should not do so here.
8. The vast majority of the prosecutor’s prosecutorial misconduct received no curative action from the court at all and many other instances involved the court siding with the prosecutor over defense objection and thereby notifying the jury his actions were appropriate. When the court did sustain a defense objection, it only very infrequently gave a general instruction not to consider what it had just heard.
But even when the court sustained defense objections, it was undermined by the prosecutor returning to the same improper conduct afterwards, with no admonishment for repeated violations.
The instructions in this case were not given in the majority of the instances of misconduct, were not prompt, were not specific, and were not emphatic enough to address the prosecutor’s misconduct.
Therefore, the harm caused by the prosecutor’s misconduct was not cured by the trial court’s actions.
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(Does anyone else hear the ghost whine of Nurmi throughout the publicity-related complaints?)
A. PUBLICITY.
1. It is up to the court to maintain the safety of trial participants. It is up to the court to protect a defendant’s right to a fair trial. A court that allows the media to portray a trial for entertainment purposes abdicates its duty to the constitution and the defendant. That is exactly what happened in this case.
The trial court allowed the media free rein. When the prosecutor took advantage of the live-stream by acting out for the cameras, the court allowed him to pursue his “style” of lawyering.
--------------------------------
(WHOA!!) When the defense objected to the court’s seeming disregard for due process, the court responded by finding that defense counsel’s argument was disrespectful, unprofessional and may have violated ethical rules.
She warned him that she would consider what action to take, if any. Defense counsel responded by moving to withdraw, noting the chilling effect the court’s words had on his ability to defend his client.
Contrary to Appellee’s argument that the trial court did not threaten defense counsel, she threatened to report him to the State Bar. The court gave the prosecutor expansive leeway in his prosecution of Arias, but threatened defense counsel with a bar complaint when defense counsel advocated for Arias.
It demonstrates the court’s reluctance to control the prosecutor’s tendency to “act out” in front of the cameras in the courtroom. In fact, the court took displeasure when defense counsel noted her enabling behavior for the record. Defense counsel’s effort to protect Arias’s right to a fair trial only annoyed the court. (WHOA!!)
------------------------------
2. Appellee argued that Arias herself caused the media circus. In a classic example of projection, Appellee identified the prosecutor’s faults and then projected them onto Arias.
** Who signed autographs outside of the courthouse? Was that Arias? No, it was the prosecutor.
Who took photos with ribbon wearing media types outside of the courthouse? Was that Arias? No, it was the prosecutor.
Who threw evidence onto the floor in front of the cameras during trial? Was that Arias? No, that was the prosecutor.
Who frequently yelled at defense witnesses during cross examination? Was that Arias? No, that was the prosecutor.
Who disparaged defense counsel while the trial was being livestreamed to the world? Was that Arias? No, that was the prosecutor.
Who released trial evidence to the media outside of trial? Was that Arias? No, that was the prosecutor.
Who harassed defense experts in front of the cameras during cross-examination? Was that Arias? No, that was the prosecutor.
Who told the court that if he had it his way he’d be on TV every day? Was that Arias? No, that was the prosecutor.
Who wanted the witnesses to be allowed to watch the live feed of the trial before they testified? Was that Arias? No, that was the prosecutor.
Who posed with someone from the Dr. Drew Show during trial? Was that Arias? No, that was the prosecutor.
Who interacted with spectators outside of the courthouse during trial? Was that Arias? No, that was the prosecutor.
This is what happens when the court sacrifices the solemnity of a criminal trial for entertaining the masses.
----------------------------------------------
B. DEFERENCE TO THE TRIAL COURT ABOUT HER RULINGS ON PROSECUTORIAL MISCONDUCT
1. (The State wants to) narrow this Court’s review by advocating for more deference to the trial court than is warranted by the facts or law. With regard to Appellee’s arguments that this Court should defer to the trial court on individually weighed instances of misconduct, cross-examination of Dr. Samuels cross-examination of Alyce LaViolette), Arias relies on their opening brief arguments for why the trial court abused its discretion in denying relief for this misconduct.
2. (The State) also noted that the trial court found any cumulative prejudice did not amount to a denial of due process, and this Court should defer to the trial court’s “repeated, updating conclusion that the prosecutor’s behavior did not permeate the atmosphere of the trial with unfairness.”
3. This argument is mistaken for two reasons. First, it asks this Court to abdicate its review and instead defer to the trial court on conclusions of law, rather than its findings of fact. Second, it asks this Court to defer to conclusions based on erroneous findings of fact, as the trial court excluded many instances of misconduct and so could not have reached an accurate assessment of cumulative error.
4. (The State) is mistaken that this Court should defer to the trial court’s conclusion on the ultimate legal question: whether cumulative prejudice from the prosecutor’s misconduct denied Arias a fair trial. Deciding whether persistent and pervasive misconduct denied Arias her right to a fair trial is a constitutional question under both state and federal due process.
5. While appellate courts generally review the trial court’s ruling on a claim of improper prosecutorial conduct for abuse of discretion, constitutional issues are reviewed de novo (COA weighs & applies their own choice of law(s), independent of evaluating what the trial judge did or did not do). With regard to allegations of due process violations, appellate courts conducts de novo (their own review). Even issues of prosecutorial misconduct involving mixed questions of fact and law are reviewed de novo (their own review).
6. (The State) is mistaken that this Court should defer to the trial court’s conclusion about whether cumulative error occurred when the trial court’s analysis excludes many instances of misconduct. A lower court’s decision will be affirmed unless it applied the wrong legal rule or its application of the correct legal standard resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.
A trial court abuses its discretion when the reasons given for its ruling are clearly untenable, the record does not substantially support its decision or a discretionary finding of fact is not justified by, and clearly against, reason and evidence.
7. The trial court did not believe that much of the misconduct outlined in Arias’s Opening Brief was misconduct and so its assessment of the weight of the cumulative misconduct and whether the misconduct permeated the trial were truncated. Its legal conclusions were based on incorrect factual underpinnings, making it an abuse of discretion. Therefore, even if this Court were inclined to defer to the trial court’s conclusion on the ultimate legal question, it should not do so here.
8. The vast majority of the prosecutor’s prosecutorial misconduct received no curative action from the court at all and many other instances involved the court siding with the prosecutor over defense objection and thereby notifying the jury his actions were appropriate. When the court did sustain a defense objection, it only very infrequently gave a general instruction not to consider what it had just heard.
But even when the court sustained defense objections, it was undermined by the prosecutor returning to the same improper conduct afterwards, with no admonishment for repeated violations.
The instructions in this case were not given in the majority of the instances of misconduct, were not prompt, were not specific, and were not emphatic enough to address the prosecutor’s misconduct.
Therefore, the harm caused by the prosecutor’s misconduct was not cured by the trial court’s actions.
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(Does anyone else hear the ghost whine of Nurmi throughout the publicity-related complaints?)
HOW MUCH AND WHAT KIND OF PROSECUTORIAL MISCONDUCT IS ENOUGH FOR THE COA TO JUSTIFY OVERTURNING A CONVICTION?
1. The killer’s attorneys know the answer to that question, which is why the key point in their opening brief, reply brief, and replies during oral arguments is this (as succinctly stated in their reply brief):
“The type and breadth of misconduct in the Hughes and Pool cases match that which occurred in Arias’s trial.”
((Note: The short reply to their assertion is: no, and not even close)).
2. ON HUGHES, FROM THEIR REPLY BRIEF: “In Hughes, the Supreme Court reversed the defendant’s conviction as he was deprived of a fair trial based on cumulative effect of the prosecutor’s comment on the defendant’s failure to testify; argument outside the record; allegation the defendant fabricated his insanity defense; and, appeal to jurors’ fears.”
I’ve already summarized the Hughes case and the AZ Supreme Court’s ruling. Nutshell recap: Prosecutor Zawanda’s misconduct WAS pervasive, from pretrial through closing arguments. He refused to acknowledge even the possibility that Hughes was severely mentally ill, didn’t put on a psych expert and accused the defense psych expert of being a mouthpiece for the “mean drunk” defendant Hughes. Zawanda’s barely veiled accusation during closing that the defendant hadn’t testified in his own defense because he didn’t have a real defense alone caused the COA to rule fundamental error.
Fundamental as in, there was no way Zawanda’s accusation during closing didn’t prejudice the jury, and especially not because Zawanda’s entire case had been a frontal, unprincipled & unethical assault on Hughes’ credibility in claiming an insanity defense.
In type, magnitude and severity, JM’s alleged misconduct during the killer’s trial simply isn’t comparable to Zawanda’s misconduct in Hughes.
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ON POOL, FROM THEIR REPLY BRIEF: “The Arizona Supreme Court described the Pool misconduct: During cross-examination of the defendant regarding the theft at issue, the prosecutor’s questions ranged from irrelevant and prejudicial to abusive, argumentative, and disrespectful. Permanent prejudice became clear by reason of the prosecutor’s persistence in improper cross examination.”
The prosecutor in Pool: also Zawanda. And again, there simply isn’t any factual comparison between Zawanda’s misconduct in Pool and JM’s during the killer’s trial.
Another brief recap: Zawanda messed up in multiple ways pretrial, including by filing incorrect (theft/fencing) charges against Pool and his co-defendant. His conduct during trial was egregious enough for the trial judge to grant a mistrial based solely on a finding of prosecutorial misconduct.
The thing is, as the AZ Supreme Court noted when the case came before them as a request for special action, it was clear from the trial record that Zawanda’s misconduct was absolutely intentional.
NOT intentional as defined/used by the killer’s attorneys: “JM knew better because he’s an experienced prosecutor, and because he’d previously been rebuked by the Court for some of the very same misconduct, so therefore his misconduct was intentional."
But….intentional as in, Zawanda WANTED a mistrial, and did everything in his power to cause one, because he believed his pre-trial and early trial sc-rew ups might result in Pool being acquitted. He wanted a do-over trial.
3. WHY DOES IT MATTER WHETHER OR NOT THE COA AGREES THAT JM’S ALLEGED MISCONDUCT MATCHES THAT OF ZAWANDA IN EITHER OR BOTH POOL AND HUGHES?
Because these are virtually the only AZ cases her attorneys can cite, however inappropriately, in which the AZ Supreme Court essentially explained what degree and kind of prosecutorial misconduct is required for an AZ appellate court to find that prosecutorial misconduct alone deprived a defendant of a fair trial, and in the Hughes’ decision, DESPITE overwhelming evidence of the defendant’s guilt.
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(Below, in next post, the last remnant of my deep dives into AZ appellate law: an excerpt of Zawanda’s cross examination of defendant Pool, cross examination the killer’s attorneys say JM’s crosses match in egregiousness (and as they assert elsewhere, that JM’s were even more outrageous).
1. The killer’s attorneys know the answer to that question, which is why the key point in their opening brief, reply brief, and replies during oral arguments is this (as succinctly stated in their reply brief):
“The type and breadth of misconduct in the Hughes and Pool cases match that which occurred in Arias’s trial.”
((Note: The short reply to their assertion is: no, and not even close)).
2. ON HUGHES, FROM THEIR REPLY BRIEF: “In Hughes, the Supreme Court reversed the defendant’s conviction as he was deprived of a fair trial based on cumulative effect of the prosecutor’s comment on the defendant’s failure to testify; argument outside the record; allegation the defendant fabricated his insanity defense; and, appeal to jurors’ fears.”
I’ve already summarized the Hughes case and the AZ Supreme Court’s ruling. Nutshell recap: Prosecutor Zawanda’s misconduct WAS pervasive, from pretrial through closing arguments. He refused to acknowledge even the possibility that Hughes was severely mentally ill, didn’t put on a psych expert and accused the defense psych expert of being a mouthpiece for the “mean drunk” defendant Hughes. Zawanda’s barely veiled accusation during closing that the defendant hadn’t testified in his own defense because he didn’t have a real defense alone caused the COA to rule fundamental error.
Fundamental as in, there was no way Zawanda’s accusation during closing didn’t prejudice the jury, and especially not because Zawanda’s entire case had been a frontal, unprincipled & unethical assault on Hughes’ credibility in claiming an insanity defense.
In type, magnitude and severity, JM’s alleged misconduct during the killer’s trial simply isn’t comparable to Zawanda’s misconduct in Hughes.
------------------------------------------------
ON POOL, FROM THEIR REPLY BRIEF: “The Arizona Supreme Court described the Pool misconduct: During cross-examination of the defendant regarding the theft at issue, the prosecutor’s questions ranged from irrelevant and prejudicial to abusive, argumentative, and disrespectful. Permanent prejudice became clear by reason of the prosecutor’s persistence in improper cross examination.”
The prosecutor in Pool: also Zawanda. And again, there simply isn’t any factual comparison between Zawanda’s misconduct in Pool and JM’s during the killer’s trial.
Another brief recap: Zawanda messed up in multiple ways pretrial, including by filing incorrect (theft/fencing) charges against Pool and his co-defendant. His conduct during trial was egregious enough for the trial judge to grant a mistrial based solely on a finding of prosecutorial misconduct.
The thing is, as the AZ Supreme Court noted when the case came before them as a request for special action, it was clear from the trial record that Zawanda’s misconduct was absolutely intentional.
NOT intentional as defined/used by the killer’s attorneys: “JM knew better because he’s an experienced prosecutor, and because he’d previously been rebuked by the Court for some of the very same misconduct, so therefore his misconduct was intentional."
But….intentional as in, Zawanda WANTED a mistrial, and did everything in his power to cause one, because he believed his pre-trial and early trial sc-rew ups might result in Pool being acquitted. He wanted a do-over trial.
3. WHY DOES IT MATTER WHETHER OR NOT THE COA AGREES THAT JM’S ALLEGED MISCONDUCT MATCHES THAT OF ZAWANDA IN EITHER OR BOTH POOL AND HUGHES?
Because these are virtually the only AZ cases her attorneys can cite, however inappropriately, in which the AZ Supreme Court essentially explained what degree and kind of prosecutorial misconduct is required for an AZ appellate court to find that prosecutorial misconduct alone deprived a defendant of a fair trial, and in the Hughes’ decision, DESPITE overwhelming evidence of the defendant’s guilt.
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(Below, in next post, the last remnant of my deep dives into AZ appellate law: an excerpt of Zawanda’s cross examination of defendant Pool, cross examination the killer’s attorneys say JM’s crosses match in egregiousness (and as they assert elsewhere, that JM’s were even more outrageous).
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From Pool v Superior Court, AZSC case, excerpts of Zawanda’s cross-examination of defendant Pool, with commentary by the AZSC
Q. You’ve never testified before?
A. Not to my recollection.
Q. If anybody would know it would be you, sir.
A. I never testified in front of a jury before, no, sir.
Q. Any special reason why you're seated facing toward the jury and not just perhaps straight out?
A. Because I want the jury to hear my testimony.
Q. Did anybody else tell you how to sit when you came in here today?
A. No.
Q. You're pretty much a cool talker, aren't you?
MR. SCHAYE [Defense counsel]: Objection…Judge
COURT: Sustained.
Q. John Brown didn't go hunting with you? [John Brown has no relevance to the case.]
A. No.
Q. Is he going to be here to testify today?
MR. SCHAYE: Objection. Irrelevant.
THE COURT: Sustained.
Q. Is Tony Miller going to be here to testify today? [Tony Miller is another hunting companion who is also irrelevant to the case.]
MR. SCHAYE: Judge
THE COURT: Sustained.
Q. What is Tony Miller's phone number?
A. He's since then moved.
Q. Does John Brown drink?
A. Yes.
Q. How much excuse me, that day, was he drinking with you that day?
A. John Brown?
Q. Yeah.
A. No.
Q. John Francis?
A. Yes.
Q. Kevin Phillips?
A. Yes.
Q. You guys were out shooting a thirty ought eight? [This refers to a hunting trip prior to visiting (the house where the thefts took place).
A. .308.
Q. .308. You were sober enough to handle that weapon safely I assume.
A. That's probably a debatable question whether we could handle it safely or not.
Q. Could you or couldn't you? [Objection sustained.]
Q. What does John Francis' state of intoxication have to do with this case? [For some reason defense counsel had referred to this subject on direct examination.]
[Objection sustained.]
Q. Well, what about Mr. Machado's state of intoxication? [Machado had been drunk and asleep in the back of John Francis' car on August 2.]
[Objection sustained.]
Q. You sat here throughout the entire testimony yesterday and today?
A. Yes.
Q. You knew exactly what was going to be presented here today?
A. No.
Q. No? You knew did you know what [could be "that"] all the evidence in this case was going to be against you?
A. No.
Q. Don't you care?
A. Of course I care, but I'm not a lawyer.
Q. You talk like one.
THE COURT: Approach the bench. [The bench conference is unreported, but we think it fairly safe to assume the judge's comments were not complimentary. Undaunted, however, the prosecutor continued.]
Q. And you realized [soon after the events] that Kevin [Phillips] had stolen [the jewelry].
A. Yes.
Q. You saw Kevin in here today and he refused to answer any questions?
A. Yes.
Q. His trial is still pending; is that correct?
A. Yes.
Q. What do you think he's going to say in his case? [Objection sustained.]
There followed a line of questions which were proper, though fairly senseless, but which evidently were somewhat emotional since the court instructed the prosecutor to allow the witness to make his answer and not to argue with the witness. Then followed a line of questioning about defendant's relationship with his girlfriend and her brother, Kevin Phillips:
Q. Is he [the brother] a very intelligent man?
A. Sure.
Q. Smarter than you?
A. I have no idea.
Q. Why did you laugh when you said that Gavin Garwood was John Francis' room mate?
[Objection sustained.]
Q. How many other pawn shops have you gone to?
[Objection overruled.]
A. I've probably been in two or three over at least in the last twenty-six years
Q. Two or three different pawn shops?
A. Sure.
Q. How many times in each?
A. I don't know. Not more than a dozen times ever in my life.
Q. But almost a dozen times in a pawn shop?
A. Not in any particular pawn shop.
Q. What were you selling?
A. Not always selling. [These questions seem to imply "other bad acts."]
[Objection.]
THE COURT: Approach the bench. [The bench conference was again unreported.]
THE COURT: Ask another question.
Q. Your attorney said in opening statement he thought you might be guilty of hindering a prosecution.
[Objection on the grounds that that is not what the defense counsel had stated. The court sustained that objection.]
Q. Do you think you're guilty of hindering a prosecution?
A. No.
Q. Do you think you're guilty of anything in this case? [Even if the witness were a legal expert, this is not a proper subject of expert testimony].
-------------------------------------------------------
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What the Court said about Zawanda's cross of Pool:
1. When the prosecutor's opening salvo (about why defendant faced the jury as he testified) failed to disturb the witness and produced a fairly reasonable answer (so that they would hear the testimony), the prosecutor followed with the question, "You're pretty much a cool talker, aren't you?"
There is no possible basis upon which such a question could be justified. It is not only argumentative, but contains innuendo designed to prejudice the witness.
2. Determination of whether a particular action is misconduct depends to some extent on the circumstances of the particular case. It is apparent that several areas of cross-examination were quite improper. For instance, references to handling a gun while intoxicated and the drinking habits of the defendant and his acquaintances were both irrelevant and prejudicial.
3. Any idea that counsel may have pursued these points without realizing their irrelevancy is settled by counsel's immediate repetition of questions to which objections had just been sustained. Such conduct is "an impertinence to the court."
Questions characterizing the defendant as a "cool talker," a knowledgeable witness and a "good buddy" of defense counsel are argumentative, grossly improper and designed to raise prejudice in jurors.
4. Questions characterizing the evidence, asking the witness for his view of evidence received or his expectations of evidence that will be given are not designed to produce admissible facts but only to invite speculation and argument from the witness in order to put him in a bad light; they are, therefore, argumentative and improper.
5. Questions asking the witness to speculate on testimony which might have been given by someone who has claimed the fifth amendment are improper and constitute misconduct.
6. Suggestion by question or innuendo of unfavorable matter which is not in evidence and which would be irrelevant, or for which no proof exists is improper and can constitute misconduct. Unwarranted abuse of opposing counsel or his client is improper and can be misconduct.
7. The trial judge was quite correct in deciding that these and similar matters in cross-examination of the defendant were improprieties which warranted, if not required, mistrial.
Q. You’ve never testified before?
A. Not to my recollection.
Q. If anybody would know it would be you, sir.
A. I never testified in front of a jury before, no, sir.
Q. Any special reason why you're seated facing toward the jury and not just perhaps straight out?
A. Because I want the jury to hear my testimony.
Q. Did anybody else tell you how to sit when you came in here today?
A. No.
Q. You're pretty much a cool talker, aren't you?
MR. SCHAYE [Defense counsel]: Objection…Judge
COURT: Sustained.
Q. John Brown didn't go hunting with you? [John Brown has no relevance to the case.]
A. No.
Q. Is he going to be here to testify today?
MR. SCHAYE: Objection. Irrelevant.
THE COURT: Sustained.
Q. Is Tony Miller going to be here to testify today? [Tony Miller is another hunting companion who is also irrelevant to the case.]
MR. SCHAYE: Judge
THE COURT: Sustained.
Q. What is Tony Miller's phone number?
A. He's since then moved.
Q. Does John Brown drink?
A. Yes.
Q. How much excuse me, that day, was he drinking with you that day?
A. John Brown?
Q. Yeah.
A. No.
Q. John Francis?
A. Yes.
Q. Kevin Phillips?
A. Yes.
Q. You guys were out shooting a thirty ought eight? [This refers to a hunting trip prior to visiting (the house where the thefts took place).
A. .308.
Q. .308. You were sober enough to handle that weapon safely I assume.
A. That's probably a debatable question whether we could handle it safely or not.
Q. Could you or couldn't you? [Objection sustained.]
Q. What does John Francis' state of intoxication have to do with this case? [For some reason defense counsel had referred to this subject on direct examination.]
[Objection sustained.]
Q. Well, what about Mr. Machado's state of intoxication? [Machado had been drunk and asleep in the back of John Francis' car on August 2.]
[Objection sustained.]
Q. You sat here throughout the entire testimony yesterday and today?
A. Yes.
Q. You knew exactly what was going to be presented here today?
A. No.
Q. No? You knew did you know what [could be "that"] all the evidence in this case was going to be against you?
A. No.
Q. Don't you care?
A. Of course I care, but I'm not a lawyer.
Q. You talk like one.
THE COURT: Approach the bench. [The bench conference is unreported, but we think it fairly safe to assume the judge's comments were not complimentary. Undaunted, however, the prosecutor continued.]
Q. And you realized [soon after the events] that Kevin [Phillips] had stolen [the jewelry].
A. Yes.
Q. You saw Kevin in here today and he refused to answer any questions?
A. Yes.
Q. His trial is still pending; is that correct?
A. Yes.
Q. What do you think he's going to say in his case? [Objection sustained.]
There followed a line of questions which were proper, though fairly senseless, but which evidently were somewhat emotional since the court instructed the prosecutor to allow the witness to make his answer and not to argue with the witness. Then followed a line of questioning about defendant's relationship with his girlfriend and her brother, Kevin Phillips:
Q. Is he [the brother] a very intelligent man?
A. Sure.
Q. Smarter than you?
A. I have no idea.
Q. Why did you laugh when you said that Gavin Garwood was John Francis' room mate?
[Objection sustained.]
Q. How many other pawn shops have you gone to?
[Objection overruled.]
A. I've probably been in two or three over at least in the last twenty-six years
Q. Two or three different pawn shops?
A. Sure.
Q. How many times in each?
A. I don't know. Not more than a dozen times ever in my life.
Q. But almost a dozen times in a pawn shop?
A. Not in any particular pawn shop.
Q. What were you selling?
A. Not always selling. [These questions seem to imply "other bad acts."]
[Objection.]
THE COURT: Approach the bench. [The bench conference was again unreported.]
THE COURT: Ask another question.
Q. Your attorney said in opening statement he thought you might be guilty of hindering a prosecution.
[Objection on the grounds that that is not what the defense counsel had stated. The court sustained that objection.]
Q. Do you think you're guilty of hindering a prosecution?
A. No.
Q. Do you think you're guilty of anything in this case? [Even if the witness were a legal expert, this is not a proper subject of expert testimony].
-------------------------------------------------------
-----------------------------------------------------
What the Court said about Zawanda's cross of Pool:
1. When the prosecutor's opening salvo (about why defendant faced the jury as he testified) failed to disturb the witness and produced a fairly reasonable answer (so that they would hear the testimony), the prosecutor followed with the question, "You're pretty much a cool talker, aren't you?"
There is no possible basis upon which such a question could be justified. It is not only argumentative, but contains innuendo designed to prejudice the witness.
2. Determination of whether a particular action is misconduct depends to some extent on the circumstances of the particular case. It is apparent that several areas of cross-examination were quite improper. For instance, references to handling a gun while intoxicated and the drinking habits of the defendant and his acquaintances were both irrelevant and prejudicial.
3. Any idea that counsel may have pursued these points without realizing their irrelevancy is settled by counsel's immediate repetition of questions to which objections had just been sustained. Such conduct is "an impertinence to the court."
Questions characterizing the defendant as a "cool talker," a knowledgeable witness and a "good buddy" of defense counsel are argumentative, grossly improper and designed to raise prejudice in jurors.
4. Questions characterizing the evidence, asking the witness for his view of evidence received or his expectations of evidence that will be given are not designed to produce admissible facts but only to invite speculation and argument from the witness in order to put him in a bad light; they are, therefore, argumentative and improper.
5. Questions asking the witness to speculate on testimony which might have been given by someone who has claimed the fifth amendment are improper and constitute misconduct.
6. Suggestion by question or innuendo of unfavorable matter which is not in evidence and which would be irrelevant, or for which no proof exists is improper and can constitute misconduct. Unwarranted abuse of opposing counsel or his client is improper and can be misconduct.
7. The trial judge was quite correct in deciding that these and similar matters in cross-examination of the defendant were improprieties which warranted, if not required, mistrial.
Final post on this topic, unless new info becomes available and/or until her appeal is denied.
HER APPEAL WILL BE DENIED.
1. JSS was a lousy judge in lots of ways, imo, but there's no way the COA will rule that she abused her discretion. And most relevant, they will not believe she abused discretion with her many rulings denying the DT's motions for a mistrial based on alleged pervasive misconduct by JM.
AZ law gives her (as trial judge) the benefit of the doubt, and presumes she was in the best position to monitor/know any adverse affect on the jury JM's "misdeeds" had, and if any such affect rose to the level of prejudicial.
2. Killer's attorneys argue that JM engaged in egregious, pervasive misconduct by intentionally choosing a trial strategy that portrayed him as the sole truth -teller, and all other trial participants & witnesses as liars.
Well...NO, and in so many ways, NO.
JM didn't make any such accusation against the DT, which WOULD have constituted misconduct. He DID accuse the killer, multiple times, of lying. He didn't cross any ethical lines by accusing her of having lied before & during trial.
And given her choice of an affirmative defense, he was entitled -and obligated- to attack her credibility at trial. The factual record supports his accusation that she was (still is, no doubt) a lying liar.
JM went up to the line and perhaps crossed it by suggesting Samuels tailored his findings because of how he supposedly felt about the killer.
The COA may or may not consider parts of JM's cross misconduct. But...even if they do, they'll rule that his transgressions when crossing Samuels were harmless error.
Notice that JM never accused Samuels of lying, which was supposedly the thread that tied all JM's alleged misconduct together throughout trial.
What JM elicited from Samuels wasn't that Samuels was lying/had lied, but that his testing was invalidated by the killer's lies. End of story.
Whatever error can be found is harmless, because JM elicited from Samuels a sufficient factual basis for questioning his credibility and the accuracy of his PTSD testing.
And LaViolette? Killer's attorneys argue that improper allegations about Samuels having feelings for the killer carried over into LaVi's testimony, and that this transfer of doubt was what caused jurors to directly question LaVi about HER feelings towards the killer.
Most of us who watched the trial know that LaVi opened that door entirely on her own, with her belligerent, transparent, myopic, unquestioning advocacy for the killer.
JM's language about LaVi in closing was strong, as the State acknowledged in their opening brief, but strong does not equate to misconduct.
LaVi, like Samuels, invalidated her own conclusions & testimony by basing both on acceptance of the killer's lies.
3. The COA won't find pervasive misconduct by JM because he didn't engage in pervasive misconduct. The Hughes & Pool cases (precedents) do not apply. Nothing JM did amounted to fundamental error, and JSS did not abuse her discretion when she ruled - repeatedly- that nothing JM was doing or had done amounted to prosecutorial misconduct at all, much less to pervasive misconduct, much less misconduct so egregious and pervasive that the killer was denied a fair trial and her due process rights.
I'm convinced she was, is & will remain guilty guilty guilty of slaughtering Travis, and in prison until she dies.
HER APPEAL WILL BE DENIED.
1. JSS was a lousy judge in lots of ways, imo, but there's no way the COA will rule that she abused her discretion. And most relevant, they will not believe she abused discretion with her many rulings denying the DT's motions for a mistrial based on alleged pervasive misconduct by JM.
AZ law gives her (as trial judge) the benefit of the doubt, and presumes she was in the best position to monitor/know any adverse affect on the jury JM's "misdeeds" had, and if any such affect rose to the level of prejudicial.
2. Killer's attorneys argue that JM engaged in egregious, pervasive misconduct by intentionally choosing a trial strategy that portrayed him as the sole truth -teller, and all other trial participants & witnesses as liars.
Well...NO, and in so many ways, NO.
JM didn't make any such accusation against the DT, which WOULD have constituted misconduct. He DID accuse the killer, multiple times, of lying. He didn't cross any ethical lines by accusing her of having lied before & during trial.
And given her choice of an affirmative defense, he was entitled -and obligated- to attack her credibility at trial. The factual record supports his accusation that she was (still is, no doubt) a lying liar.
JM went up to the line and perhaps crossed it by suggesting Samuels tailored his findings because of how he supposedly felt about the killer.
The COA may or may not consider parts of JM's cross misconduct. But...even if they do, they'll rule that his transgressions when crossing Samuels were harmless error.
Notice that JM never accused Samuels of lying, which was supposedly the thread that tied all JM's alleged misconduct together throughout trial.
What JM elicited from Samuels wasn't that Samuels was lying/had lied, but that his testing was invalidated by the killer's lies. End of story.
Whatever error can be found is harmless, because JM elicited from Samuels a sufficient factual basis for questioning his credibility and the accuracy of his PTSD testing.
And LaViolette? Killer's attorneys argue that improper allegations about Samuels having feelings for the killer carried over into LaVi's testimony, and that this transfer of doubt was what caused jurors to directly question LaVi about HER feelings towards the killer.
Most of us who watched the trial know that LaVi opened that door entirely on her own, with her belligerent, transparent, myopic, unquestioning advocacy for the killer.
JM's language about LaVi in closing was strong, as the State acknowledged in their opening brief, but strong does not equate to misconduct.
LaVi, like Samuels, invalidated her own conclusions & testimony by basing both on acceptance of the killer's lies.
3. The COA won't find pervasive misconduct by JM because he didn't engage in pervasive misconduct. The Hughes & Pool cases (precedents) do not apply. Nothing JM did amounted to fundamental error, and JSS did not abuse her discretion when she ruled - repeatedly- that nothing JM was doing or had done amounted to prosecutorial misconduct at all, much less to pervasive misconduct, much less misconduct so egregious and pervasive that the killer was denied a fair trial and her due process rights.
I'm convinced she was, is & will remain guilty guilty guilty of slaughtering Travis, and in prison until she dies.
@Hope4More - Thank you again for all your hard work. It's been very educational and interesting. I wish I had one tenth of your brain power!
I truly hope her appeal is denied. The thought of having to watch her lie on the stand again is enough to make my blood boil.
I truly hope her appeal is denied. The thought of having to watch her lie on the stand again is enough to make my blood boil.
pocketaccent
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Hope's meticulously detailed analysis almost got me into a sleuthing mode once again. lol. eg, post # 407, 408, 409...
Thank you so much, Hope, you are amazing, your research/fact based analysis is impressive! I also wholeheartedly believe her appeal will be denied.
Thank you so much, Hope, you are amazing, your research/fact based analysis is impressive! I also wholeheartedly believe her appeal will be denied.
jypsijemini
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For real?! And yet during the entire trial, Jodi Arias is able to have a running, active Twitter account in which she discusses her opinions about her own trial? She's just bummed that she didn't get bail and asked to shoot some sadistic *advertiser censored* or a snuff film before the verdict.
But seriously - why didn't they shut her account down? I know that she was getting someone else to write for her - but she was imprisoned and on trial. The NSA has plenty of resources to seek out and shut down accounts - Facebook, YouTube and Instagram constantly have programs running to bust users who use music without permission, and all jailhouse phone calls are recorded and monitored... So how did she slip through the cracks and get this sort of leniency?
There was every right for the media to cover this case. She's just upset that she didn't look her best while it was all happening. She accepted invitations for interviews before and after her trial. She lied during the 4 Corners interview - and assumedly during the interview she had straight after her conviction.
She wants to control the way she's depicted in the media and by the court - which is why she was so astounded and enraged by the way the prosecution managed their case against her. She was hoping for an incompetent, confused prosecution like the one which led the case against Casey Anthony. She figured that with Juan Martinez acting alone and handling the case by himself, she would be able to manipulate this individual and everybody else present in the courtroom.
This is so evident by the way that she predominantly directed her answers towards the jury. Most days, she would face Martinez as he asked questions, but would flick her head to the left and speak to the jury. The microphone wasn't placed there - it wasn't as if she was just trying to make sure that she was being heard. She wanted to influence and manipulate the jury.
Just the same way that she wanted to manipulate and influence every police officer she was interrogated by.
Just the same way that she wanted to manipulate and influence the family of Travis Alexander by callously sending a letter and flowers to his grandmother. She claims she chose irises to send to her as they were symbolic to Jodi - it was the name Travis had told her he'd like to call his daughter someday.
Just the same way that she tried to manipulate and influence Juan Martinez during her trial and especially, during her 38 day testimony. She attempted to discredit him. She claimed that his tone and behaviour made it more difficult for her to answer truthfully and completely. She toyed with the wording of his questions. She had so much contempt for a man who was just trying to seek answers from her and find the truth - something to which he was impartial to. He didn't have any grudge or ill-feelings toward her as a person. He was an experienced prosecutor who'd been through many similar, gruesome cases and while he wasn't cold to the disturbing facts - he wasn't taking any time to play on emotion or hypotheticals. He was there to do his job. The evidence told him that her story didn't add up; he consulted the expertise of many professionals and allowed the evidence to run his case.
Jodi successfully manipulated her defence team to create a case based on emotion. She wanted to be portrayed as the victim. She wanted to convince everybody that in that moment, in the dusk hours of June 4th, that she'd been attacked by Travis Alexander. She wanted to convince everyone that she'd been the victim of regular abuse, and this was her reasoning behind fighting back and 'defending herself' during the altercation on June 4th.
She painted the picture of herself as a young Mormon woman who unconditionally adored Travis Alexander. A woman so in love that she'd given in to her cravings and enjoyed a wild sexual relationship with him. A woman who bent over backwards to ensure their lives were intertwined, even after he'd broken up with her. She'd moved multiple times within the two years that they'd known each other and claimed that she'd done so because Travis had requested it. Even after she'd found proof that he'd been cheating on her. She made excuses for him - that he was flirtatious, outgoing - and that these were just acceptable elements of his personality. Yet she made no excuses for him when she claimed that he had been physically violent with her. That he'd struck her in the car. That he'd chased her through the house and grabbed her arm. That he'd yelled and repeatedly slammed his head against a bathroom closet door.
She'd told no one - not even the private pages of her own journal. These claims only surfaced after she'd shot him, stabbed him 27 times all over his head, neck and body, and as he collapsed and was dying, she slashed his throat so violently that she'd almost decapitated him.
Her first lie was that she wasn't there at all.
Then she claimed that she'd been there, but was the victim of a home invasion that resulted in Travis' murder.
And finally, her last claim was that she'd acted in self defence, and the only way to defend herself was to shoot Travis. Due to the vicious nature of her crimes, she decided that it was best to claim that she didn't remember the rest. That she'd "gone into a fog" - that stretched from the stabbing all the way to her escape from Arizona when she changed clothes, washed her hands and tossed the murder weapon/s into the desert from the side of the road. Even years later, her 'fog' hardly lifted. She remembered "dropping the knife and screaming" but argued with Martinez because she didn't remember "gripping" the knife.
I know you all know most, if not all these details of the case as well, but this is the first time that I've really delved deep into the court hearings in particular, and I was so enraged and perplexed by the story she depicted. I really enjoyed trying to piece it all together for myself and it was incredibly frustrating to have to argue with YouTube users rather than being able to have an intelligent, educated discussion with likeminded people. I'm really just venting here.
WebSleuth, I'm so glad I finally found you. You're everything I've been searching for. I feel like I've come home <3
jypsijemini
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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: