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The jury questions and the back and forth by the prosecution and defense completed computer expert witness “John Smith”s testimony today. Former Mesa Detective Steve Flores was called back to the stand to testify a little more about what happened with Travis Alexander’s lap-top computer. The two sides have finally gotten to the bottom of what happened with the computer and who did what.
The court had been grappling with two giant crater issues in the Jodi Arias Penalty Phase Re-trial. The first was Judge Sherry Stephen’s decision to clear the court room for the testimony of Jodi Arias. This decision must have everyone stumped. Be aware that that decision ONLY pertains to Jodi Arias, and not any other mitigation witnesses.
Giant Crater #1
Can Jodi Arias continue to testify in secret?
No. Many prosecution supporters were incensed with that ruling and have lashed out at the Judge, claiming that she is on the defense side and some have implied that she has been that way throughout the proceedings. It doesn’t seem so, yet they cite this ruling as a major example that Stephens is rooting for the defense.
Yet, the Judge must have had a reason, other than sending the decision to a higher court to take the blame for making the decision. The media was the most upset about the ruling, citing the Constitutional 1st Amendment right of the public to be present, especially in high profile and high consequence trials. They already can’t broadcast until after the trial, and they’re not about to be pushed any further. It’s difficult to think of a compelling reason for the Judge to have made that decision, but we should be fair in believing that she did have an important reason.
The only one I can think of is that Jodi Arias was going to talk about the other mitigation witnesses in her testimony and integrate them into her testimony. This means she would have to name them or otherwise expose them. The only way to keep the witnesses who did not want to be identified protected would be to also make Arias’ testimony secret.
Giant Crater #2
The Porn on the computer issue.
The second Large Crater in this penalty retrial is the issue of porn on the computer. How did it get there? Was it purposely accessed or was it automatically accessed due to malware? Did the prosecution try to hide porn found on the laptop hard drive, or was automatic actions of the computer creating that appearance? Canadian Deborah Maran has a good set of articles explaining the inner workings of computers, site-blockers, viruses, and malware, etc. It’s a good background on the issues surrounding Travis’ lap top computer.
Judge Stephens waited for Bryan Neumeister and his assistant, “John Smith”, to complete their testimony before issuing her ruling on lots of motions pertaining to the defenses’ desire that the court reverse the conviction or remove the death penalty from the proceedings. These rulings were released today. Boom!
“IT IS ORDERED denying the defendant’s Motion to Dismiss State’s Notice of Intent to Seek the Death Penalty Due to Continued Misconduct filed October 1, 2014,
the defendant’s Motion to Dismiss the State’s Notice of Intent to Seek the Death Penalty Due to Defendant’s Inability to Present a Complete Case for Life filed September 26, 2014,
the defendant’s Motion to Dismiss State’s Notice of Intent to Seek the Death Penalty Due to Continue State Misconduct Supplement #1 filed October 24, 2014,
the defendant’s Motion to Dismiss All Charges with Prejudice and/or in the Alternative to Dismiss the State’s Notice of Intent to Seek the Death Penalty due to Recently Discovered Purposeful and Egregious Prosecutorial Misconduct filed on November 10, 2014,
the Defendant’s Motion for Reconsideration: Motion to Dismiss State’s Notice of Intent to Seek the Death Penalty Due to Defendant’s Inability to Present a Complete Case for Life filed November 26, 2014,
and the Defendant’s Supplemental Motion to Dismiss all Charges with Prejudice and/or in the Alternative to Dismiss the State’s Notice of Intent to Seek the Death Penalty Due to Recently Discovered Purposeful and Egregious Prosecutorial Misconduct filed December 14, 2014.”
Judge Stephens ruled that nothing the defense brought up, including the computer evidence, can be construed as prosecutorial misconduct, and nothing the defense brought up justifies any sanction including the removal of the death penalty. Also the tweets by Steve Flores’ wife may or may not have been leaks from sealed meetings, however the Judge rules that the defense presented no evidence that the information tweeted came from closed meetings.
As to the hard drive evidence, it was determined that no pornographic photos were found, that much of the accessing of porn sites was the automatic workings of malware, as Deborah Maran stated in her article, and that the prosecution did nothing wrong that would change the outcome of the trial. The court also determined that differences between the different clone copies of the hard drive created on different dates were the result of waking and inspecting the original computer, and only system files were overwritten. The computer did not overwrite any registry files or porn information.
The court also determined that a porn site was accessed purposely by a user on June 3, 2008, one day before the killing.
This should put an end to the computer porn issue, and it’s doubtful that this could be deemed to be a legitimate appeal issue by a higher court. Deborah Maran also reported in her article that she felt the defense violated their “duty of candor” by purposely filing accusations and allegations they knew to be false. Juan Martinez also filed a motion to sanction the defense for the issues and allegations regarding the hard drive. That motion was also denied.
“ IT IS FURTHER ORDERED denying the State’s Motion for Sanctions (Compaq Presario Computer) filed November 16, 2014 and the State’s Motion to Strike (Compaq Presario Computer) filed November 18, 2014.”
These two Huge Craters in this elongated penalty re-trial seem to be traversed, but there’s one huge chasm left.
The remaining Giant Chasm
The remaining giant chasm is will Jodi Arias agree to continue her testimony in open court? Will her mitigation witnesses agree or refuse to testify in open court?
The Judge has ruled that there are many options available to protect the identity of witnesses short of clearing the courtroom. This is true, and we have already seen this in action with Darryl Brewer not showing his face in the original trial, and most recently, a computer expert who was given the pseudonym of “John Smith” to protect his identity. Maybe “John Smith” was fearful of what his participation in this trial would do to his prospects of being hired by “major corporations” as a private contractor.
That’s one of many reasons Arias’ mitigation witnesses are reluctant to testify. Another is cyber-stalking by over-zealous social media followers. Witnesses from the main trial had their books disparaged in reviews by trial activists on sites such as Amazon.com. Others have found photos of their children and maps to their home, as well as phone numbers publicly displayed on Facebook. Alyce LaViolette has had her speaking engagements seriously curtailed as a result of backlash from her participation and opinions in this trial. Other participants have had their safety and their life threatened.
The media appealed Judge Stephen’s decision to close the court to the Arizona Court of Appeals. The Court ruled in favor of the Media, and stayed the ruling. Arias had to stop testifying until the defense gets a chance to appeal that ruling. The Appeals Court also ordered Arias’ sealed testimony to be released to the public which happened yesterday.
Here are a few samples from Jodi Arias’ secret testimony:
(Click to enlarge)
Many people theorized that Arias wanted the testimony to be secret because she was going to make wild and outrageous new allegations of abuse, sexual abuse, physical abuse and pedophilia, either by the victim, Travis Alexander or someone in her family when she was a child, or both. We have yet to see an indication of this yet.
The released transcripts reveal no real shockers, but there was some talk of drug use and more details of physical abuse by her parents when Arias was a child. The Appeals Court ruling put an abrupt end to Arias’ testimony, which covered her childhood and previous relationships all the way up to her first meeting with Travis Alexander and their initial motel rendezvous at a truck stop in Ehrenberg, Arizona, on the California border. Perhaps any anticipated shockers were yet to come? Perhaps there were not going to be any shockers at all?
The released testimony had more color and detail than in the original trial. Arias seemed to be very eloquent and comfortable and she revealed new information in terms of different friends she made and how she came to move to the different places she lived. For example, Jodi did not just cruise down to the California Coast and find the Ventana Inn job. A man named Richard Molay from Oregon worked there and she actually got a recommendation from him.
She also revealed that when living with Bobby Juarez in Montague, 6 miles outside of Yreka, Jodi owned a Samurai sword. After Bobby allegedly choked her, and then convinced her to hang up on the 911 call, she told her brother Carl that Bobby had choked her. Carl showed up with a posse at Juarez’ place to intimidate Bobby, who came sailing out the door with the Samurai sword and chased Carl and his friends away. There are interesting details like that, but no real exploding bomb shells.
Now, the big question is, will Jodi Arias continue her testimony in open court, or will she refuse to testify? Also, the Court of Appeals is under no obligation or time limit to respond to Nurmi’s appeal of their decision to stay Judge Stephen’s ruling to clear the courtroom. The Arizona Court of Appeals also said that the defense could not use their decision as a basis to put the trial on hold or to delay the trial further.
Will the defense work with the court and the prosecution to find creative ways to protect witnesses and information while still having an open court? Will Jodi Arias continue her testimony or refuse to return to the stand? If she testifies, will other mitigation witnesses refuse to testify now that the promised anonymity may not be available? Will they agree to modifications so they can testify in open court? These are the big questions coming up soon.
A witness can be given a pseudonym, a witness can ask not to be identified, a witness can testify on video or by affidavit. Another person, such as mitigation specialist Maria De La Rosa or another suitable person can testify in the place of a witness. The witness can also be subpoenaed and compelled by the defense to testify. There are many ways a witness can testify and protect their identity without going to the extreme solution of clearing the courtroom, and Judge Stephens has explained this in her ruling.
So, if witnesses make a personal decision not to testify, this most likely cannot be an appealable issue at this point, because the prosecution and the court have offered many ways for witnesses to testify without having to reveal their identity.
This is not such a simple issue, because the Judge is reluctant to force Jodi Arias or her mitigation witnesses to testify in open court, because Nurmi has appealed the ruling. Should Jodi Arias be sentenced to death, and afterwards, Nurmi’s appeal is granted, then the retrial becomes a mistrial and Jodi Arias’ sentence would possibly need to be converted to life, especially if some witnesses refuse to testify. Anything done in open court cannot be undone, so it is questionable how this trial will proceed or even if there will be a postponement of the trial pending the ruling on Nurmi’s appeal.
Some prosecution supporters believe that this “witnesses are afraid” claim is just a ruse by the defense to find an excuse not to present mitigation witnesses. This is because some death sentences have been stricken down by the 9th Circuit Federal Court of Appeals, based on ineffective assistance of counsel for failure of a defense attorney to present mitigation witnesses. They claimed that this was what Nurmi did in the first penalty trial, also.
If this is his strategy, it’s not going to work at this point. So, it will be interesting to see what happens next. Will the defendant and her mitigation witnesses testify or not?
Another notable thing that happened on Tuesday the 13th was that Jennifer Willmott finished re-direct questioning of Mesa Detective Steve Flores about the chain of custody and what he witnessed about the computer in the evidence room. Some evidence favorable to the defense was elicited from Detective Flores. Juan Martinez got up on re-cross and went after him in a fury and with as much ferocity as he has displayed with any defense witness. Fireworks in the courtroom. Juan Martinez also referred to himself as “Mr. Martinez”. “Objection to what Mr. Martinez thinks”.
Two Giant Craters have been traversed. Many prosecution supporters blamed the defense and Judge Sherry Stephens for all the delays and for throwing this crazy train retrial off the tracks, but that’s not the only perspective. The defense did not threaten and intimidate witnesses in the original trial and the defense did not put the porn on the computer. Theses two issues could not be ignored, they had to be confronted and worked out one way or another. The final Giant Chasm is what will the defense do now? Court is out until Tuesday after the Holiday, and we may or may not find out then.
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