The Damsel, the Vicar, and Dr. D (retrial update)

Fact-based reporting by

Rob Roman & Amanda Chen

After finishing with Dr, Geffner as the final mitigation witness, the penalty re-trial transitioned to the rebuttal portion. Here the prosecution tries to refute certain facs or ideas that were presented by the defense in mitigation. The prosecution called Abe Abdelhadi, a former co-worker and date of Jodi Arias.

Next they called Deanna Reid, a long term girlfriend of Travis Alexander. After that came Bishop Vernon Parker of Riverside, California. The Bishop was the higher up in the LDS church for Deanna, Travis, Witness #1, and others. Finally, the defense called on Dr. Janeen DeMarte to refute certain ideas and views of both Dr. Geffner and Dr. Fonseca.

This update comes from cobbling together various court room tweets, mostly Michael Kiefer and Jen Wood. Most everything here is what was tweeted about what was said and what happened in the courtroom. This is not my opinion. There area a few sentences that are my opinion, and I let you know when it’s me talking.

sea 1We’re going with a deep sea theme this time, as we feel this penalty phase retrial has drifted way out to sea. You never know what you will come across out in the deep: A beautiful sunset, a gentle, cool breeze, or a sighting of a magnificent whale. You may also meet up with a sudden storm, gigantic rolling waves, a capsized ship, and a pack of sharks or deadly octopi.

The defense team, having just been told at the last minute that Abe Abdelhadi would be taking the stand, asked for permission to interview him, and the Judge allowed it. Kirk Nurmi fought to have Abe precluded as a witness due to not having been given any notice by the prosecution that he would be testifying.

Nurmi tells the Judge that Mesa Police Detective Smith was also going to be put on the stand with no prior notice from the prosecution. Judge Sherry Stephens suggests that Kirk Nurmi should interview Smith after the days of trial testimony commences. Nurmi says he needs time to consult with his experts first.

sea 2The waves are climbing and a single flash of lightning threatens.

Funny that ambushing the defense is a tactic in a search for the truth. – Michael Kiefer

Prior to starting the trial with Abe Abdelhadi, Judge Stephens wants to know what the relevance is of Jodi Arias asking Abe to lie to Travis? Martinez replies that Arias’ credibility is always an issue. Martinez describes how Abdelhadi and Arias made out at a California mall garage and Arias made a joke about there being magic in her panties.

Abe takes the stand, with Prosecutor Juan Martinez on direct examination.

The main thing is after Christmas 2006, Abe and Jodi got together in Pasadena for dinner. Abe had drinks but Jodi didn’t drink, JA told Abe she “dabbled in Mormonism and later they made out in a parking garage. dr d abeAbe claims he got his hand in her panties, which was kept from the jury. Apparently, in a joke alluding to Mormon magic underwear, JA said there was magic in her underwear.

This is my commentary – Notice how if you look at the interviews of Abe, he didn’t get his hand in her panties. Jodi Arias made a joke not about panties, but about mgic Mormon underwear. The joke has no meaning if she used the word “panties”.

The whole point of this is it puts Arias as the sexual aggressor and the one who’s chasing men, that any man would do, that she would change her LDS interest for a different guy, that she was not following the laws of chastity or the tenets of the church, that she denied her faith, that she wasn’t faithful to one man. Now we see why the prosecution wanted to put Abe on the stand. They are using a brief event to tear down a lot of the way the defense sees and wants to portray Jodi Arias.

Jodi called a few days later and told Abe they shouldn’t be seeing each other any longer. Abe then gave advice to Jodi about Travis. Arias told Alexander about the date and he was upset. Arias told Travis she would send him a letter to tell Abe they couldn’t see each other anymore. She showed Travis the letter. Also Abe said the letter Arias supposedly sent to Abe was never received by him.

Judge Sherry Stephens gave Abe a long list of things that Abe cannot talk about.

Second chair Defense Attorney Jennifer Willmott, on cross examination goes into all Abe’s interviews on TV and in the mainstream media. Arias told Abe she was dating Travis on the DL (down-low), but it was going to become official soon.

Willmott states that many of calls from Arias to Abe were for business advice. Abe was part of the same team as Jodi Arias, which was Team Freedom? Gus Searcy and Abe Abdelhadi were on Jodi Arias’ “Up-line”. Travis was an Executive Director from Team Renu?, and Chris Hughes was his “Up=line”.

JM on redirect shows the e-mail to Abe from Jodi Arias had no address, implying that the letter was never sent. This further implies that the whole episode with Abe Abdelhadi was a manipulation by Jodi Arias to get Travis to commit to and/or stay with Travis.

So, was Travis being jealous and controlling, or was Jodi Arias using Abe to get Travis to commit? That’s the issue here.

It was very short questioning and Abe was quickly off the stand.

Former Travis Alexander girlfriend, Deanna Reid, takes the stand for the prosecution.

She relates that from June 2000 to November 2001, she was on an LDS mission in Costa Rica. They had dated for just a couple of months before Reid left on her mission. dr d damselDuring the mission, you are only allowed to stay in touch with people by writing letters. Mission workers can call their parents maybe once or twice.

Towards the end of her mission, in the summer of 2001, Travis wrote Deanna a letter saying he wanted to see other people. At that time, Travis was living at the Bishop’s home in Riverside California. Travis had set his eye on the illustrious Linda Ballard. When Deanna returned, Travis was no longer living at the Bishop’s house.

By that time, Linda had dumped Travis and moved away. Travis and Deanna eventually started talking again in November, 2001 and by February 2002, they were dating again.

Reid says she knows witness #1, but she never met him and his story involving her and Travis never happened.

sea 10Fins are circling the boat. Are they dolphin fins, or are they sharks?

Jennifer Willmott starts cross-examination. Willmott tells her “You have been misleading and the only person who has been misleading is you”. Deanna Reid denies being misleading, answers questions not asked. “Miss Reid, did I ask you a question?” She’s giving the prosecution’s side a taste of Juan Martinez’ medicine. Deanna Reid is admonished by the judge to answer only questions that are asked of her.

Willmott says she has the transcript and a recording where Deanna Reid is being misleading. Reid wants to hear the recording, rather than relying on the Defenses’ transcript and is trying to stall.

dr d  deanna 2Reid started having sex with Alexander in 2003. There’s some talk about “temple recommends”. This is the permission slip or hall pass that allows the faithful to go to the temple, which is separate from the meeting houses. Willmott brings up that Deanna, when asked by the original Arias defense attorney, Victoria Washington, if she knew of anyone else Travis was having sex with besides Jodi. Deanna had told her “No, no one”. Deanna told Victoria Washington that she had no knowledge of Travis having sex with anyone else. Deanna explains that “she wasn’t asking about me”. Deanna states that she did explain her sexual relationship with Travis, and she testified to that in the original trial.

There were arguments over marriage in 2005 when she realized that Travis was not going to ask her to marry him, but nothing physical.

I would have answered the same way, as it seemed that Victoria Washington was asking about the time frame that Travis was involved with Jodi Arias. We are getting into a what the meaning of IS is type argument, the way I see it.

But Deanna did testify that there was no real thoughts or talk about marriage until 2005. Is this true. Take a look at the clip:

VIDEO

The sky clears and it’s smooth sailing.

Juan Martinez gets up on re-direct.

Deanna confessed having pre-marital sex with TA to her Bishop in Phoenix and she lost her temple recommend. Deanna claims that both she and Travis lost their temple recommends for about a year. She claims she was answering the exact questions asked and they were not about her. Deanna claimed in deposition with Victoria Washington that she never had an interview about a temple recommend. Deanna explained it was a confession, not an interview.

That to me is a bit misleading.

Juan made sure once again to have Deanna put in that little dig about Deanna getting custody of Travis’ dog Napoleon after his death. “Who has Travis’ dog now?” I have Travis’ dog now”. And Deanna is off the stand.

deanna reid hln 2One thing that wasn’t made clear: Travis was his own customer of Pre-Paid Legal services. As such, one of his benefits was a will-writing which I believe was done prior to his meeting Arias. So, Travis left Naps to Deanna in his will, and that’s how Napoleon came to be living with Deanna today.

The other thing is that I strongly suspect that Deanna forced Travis to go to his Bishop in Mesa and confess, as I doubt he would have done this on his own. This means that another violation in the future would bring a more serious punishment. Certainly what happened between Travis and Jodi Arias would have gotten him a temporary excommunication, which Travis definitely did not want to happen. His business and his personal social life would be badly affected.

dr d vicarNext up is Vernon Parker, the Mormon Bishop from Riverside, CA. He claimed that Travis moved out sometime in 2001, and a guy named Jake (the snake) moved in. Bishop Parker and his family claim they never saw Travis use the computer in the Bishop’s living room. Parker knew witness #1 in 1999. Witness #1 had an online relationship with a woman over the internet. That woman lived at Vernon Parker’s home.

Witness #1 visited the woman at Bishop Parker’s home and he used the computer. Travis was not living there at the time. Parker states again he never saw TA use the computer. Witness #1 told the Bishop there were pop-ups of scantily clad women on the computer. The Bishop took the computer to a shop to remove any unwanted malware and viruses. No child porn was found, according to Bishop Parker. The Bishop recalls blaming Jake the snake for being the porn-hound who messed up the computer

The Bishop also doesn’t believe the computer crashed as witness #1 said. He just thought it was acting funny. Witness #1 was good with computers. Witness #1 claimed he didn’t go to the Bishop about the child porn he claims he saw on the computer, because he was just about to get married and he didn’t want complications. dr d vernon parkerBishop Parker said that witness #1 could have come directly to him and there would be no punishment if witness #1 reported that he found child porn.

There are varying winds deep at sea. The sailboat is cruising gracefully. The sails require adjustment as the winds change this way and that.

Kirk Numi is cross-examining Bishop Vernon Parker the next week on a Monday. Your duty is to safeguard the integrity of the church. Discipline is mandatory when a parishioner is known to be a predator. The Bishop agrees. Why did you bring your own attorney?

Parker brought his own attorney with him. He said the LDS church recommended he do that and they supplied the attorney when they found out he would be called as a witness in the Jodi Arias case. Parker’s attorney is sitting with the prosecution team and he participates in the sidebars.

Vernon Parker knew Travis since 1999. He lived with the Bishop after returning from his mission in Colorado in June to Aug, 2000. Kirk Nurmi lists all the sex acts that are transgressions. The Bishop agrees. Kissing is OK, though. One gets the feeling that Kirk Nurmi very much enjoys embarrassing the Bishop and young Mormon ladies with graphic sexual talk.

“Can a sinner baptize people? Can they have anal intercourse and then baptize?” – Nurmi asks the Bishop. “Was it 6 to 9 months or just 2 months that Travis lived there? You told us both.” – Nurmi asks. In a deposition, the Bishop said everyone in the house used the computer. “Everyone that wanted to”, he replies.

If Jake (the snake) Thompson was married in 1999 and Bishop Parker was a witness, how could he be a single man living at the Bishop’s home in 2000?

Parker says Jake confided in him, Nurmi asks him if he is waving his priest- penitent privilege. Parker says it was not a confession. dr d vernon 2The Bishop agrees that Travis came to talk to him about marrying two women, first Deanna Reid, and then Linda Ballard. Linda Ballard is the one Travis dumped Deanna for in the summer of 2001.

This is significant because it shows that there was some thinking about marriage prior to Deanna’s mission, even after dating only a few months. Deanna testified there were no serious thoughts or conversation about marriage until 2005. Hmmmm.

Nurmi seems to be in his element – Which is more of a transgression, anal sex or oral sex or vaginal sex? They are all forbidden, for unmarried couples. The Bishop is close to Deanna and her family and he only found out during the original trial that she had a sexual transgression with Travis.

What about tying a woman to a tree to sodomize her, bragging about masturbation, and the 12 year-old and the orgasm? Travis could have been expelled for his behavior, the Bishop admits.

Nurmi is done, Martinez gets up for re-direct.

Secret witness #1’s bride moved in after Travis Alexander moved out. Juan points out that Jodi Arias is just as guilty as Travis in everything they did.

sea 16The waves are rising and the sky becomes ominously cloudy. The boat rises and falls suddenly.

Now, there’s an argument between the prosecution and the defense. The defense claims the Prosecution failed to disclose their expert Psychologist, Dr. DeMarte’s report in a timely manner. Juan claims it was just a few pages of notes. Martinez claims he was not aware that Dr. DeMarte had notes until just last Friday.

Willmott claims interviews were conducted in December and the State never advised the defense that the notes existed. “There is no reason not to disclose it other than the state not wanting to disclose it”, she said. The defense also wants to preclude Perry Smith as a witness for the exact same reason.

Judge Stephens says the defense can interview Dr. Janeen DeMarte before their cross-examination. The motion to preclude Mesa Police Detective Perry Smith’s testimony will be addressed at a later date. The State has also failed to disclose notes from Smith.

Always trying to be fair and square, while never addressing the root of the problems, is Judge “Timid Timmy” Sherry Stephen’s modus operandi.

dr d dr d 5Dr. DeMarte is now on the stand on direct

This is the darling of prosecution supporters, they literally swoon over their Dr. Dee.

She had been a Licensed Psychologist since 2010. Her experience comes mostly from pre-Ph.D internships. She met with Jodi Arias 4 times for a total of 17 hours. Dr. D. gave Jodi a brief reading test. An intellect test revealed high intelligence. DeMarte refers to her untimely disclosed notes, and there’s an objection by Nurmi – overruled.

During her PTSD screening, a PDS test question shows Arias said she was non-sexually attacked by a stranger. Dr. DeMArte states that Arias lied, thus invalidating the entire test. Now DD is claiming that Arias also has adjustment disorder due to being in jail. She has an inability to cope with life changes.

Dr. D. also discounts Geffner’s DAPS tests because Geffner suggested to Jodi what the trauma was for each test. Juan Martinez asks if Dr. D, talked to the defendant about an alleged choking incident?

Geffner has to make clear what the time frame for each test is, otherwise, the validity could be questioned.

Gail force winds come howling from the North. The waves are high and foamy. The sailboat lurches suddenly, creaking and cracking.

DeMArte relates that Arias said the choking incident was after a fight about sexual partners because Jodi was afraid of contacting an STD. Nurmi objects that the Dr. is fantasizing and that Dr. D. doesn’t have the expertise to make these statements. Dr. D. cautions Martinez not to show the actual test questions, the same thing Dr. Geffner warned about. Martinez shows that Jodi Arias stated on a test that she was never forced to have sex

But Arias claimed she was forced to have sex in a test done by Alyce LaViolette. Nurmi objects to “irrelevant and prejudicial evidence”. Judge Stephens sends the Jury out. DeMarte goes to talk with Juan. Nurmi wants DeMarte out.

The Judge reads case law supplied by Nurmi. She reads a paragraph that says irrelevant and prejudicial evidence should be precluded in the rebuttal of a mitigation phase. DeMarte comes back in the courtroom and Judge Stephens asks her to leave again. Martinez says that it is not unduly prejudicial given the amount of time that Dr. Fonseca and Dr. Geffner spent saying Jodi Arias was passive. Stephens overrules the objection. Nurmi says DeMarte is relying on name-calling. Martinez repeats a quote that Jodi was “snide and a total bitch at family reunions.”

Nurmi repeats the clause warning about relentless assault on the defendant’s character during mitigation rebuttal. Her grandparents also said that Jodi Arias corrected everyone else’s grammar. DeMarte reads the grandparents’ remarks that Arias was always mean to her mother. dr d ddNurmi asks for a sidebar as Martinez looks for more remarks made by Jodi’s grandparents. The snide and total bitch remarks from a relative are allowed in. DeMarte reads them to the jury. Dr. D. wants to talk about Jodi’s behavior at the Purple Plum restaurant, Nurmi wants to approach.

DeMArte charges that those examples of her behavior at the Purple Plum would be classified as aggressive and overbearing. Dr. D. starts talking about Jodi, on her way home from Travis Alexander’s memorial service, giving her phone number to a guy on the plane. Another remark says Arias once pretended to know nothing about Yreka and asked a guy to show her around.

DeMarte reads notes from an interview with a co-worker from the Purple Plum. Jodi Arias, as a waitress, went straight to the men and ignored the women. Martinez says Fonseca and Geffner said Arias lacked self-esteem. “Do the remarks refute that evaluation?” –  he asks DeMarte – “Yes”. Dr. D. says she’s surprised that having written so much in her journals, that Jodi Arias never mentions Domestic Violence – physical abuse.

sea 14The waters are churning, the boat is floundering.

Her remarks about wanting to have sex like a dirty little schoolgirl show Arias as the dominant person and also her assertiveness and high self-esteem. DeMarte reads a message from Arias offering a “bj” and asking for a “facial” in return. DeMarte explains that she was asserting her wants and needs. On top of that, Arias said she “was a goddess, smelled like a goddess, looked like a goddess. She was all over the men” DeMarte reads another remark from the Purple Plum friends about Arias being all over the young men.

DeMarte and Martinez are discussing inconsistencies in Arias’ statements to the Psychologists.

It’s apparent to me that this was all fed to her by Juan Martinez. Dr. DeMarte is acting as a conduit for the prosecution, even as Dr. Geffner acted as a conduit for the defense.

Now we are at the interactions between Jodi and Travis and Lisa Andrews. From DeMarte’s interview with Lisa Andrews, Andrews said Jodi Arias once snuck into Alexander’s house while she was there. Andrews told DeMarte that Alexander never abused her physically. Lisa Andrews also talked at the interview with Dr. D. about her discomfort at being touched in public and how Travis criticized her for wanting to become a teacher.

Deanna Reid also wanted to be a teacher, and she’s a teacher today.

This is how I know this is all coming from Juan Martinez – he’s including things he anticipates the defense will bring up in order to defuse these items. This isn’t coming from Dr. DeMarte. The other thing is that Jodi Arias did not “sneak in” to Travis’ house when Lisa was there with Travis. She walked in, as she usually did, she saw Lisa was there, and she turned around and walked out.

Now Dr. D. relates that Arias confided to Sky Hughes that she didn’t like how Alexander only called late at night. DeMarte interviewed Sky Hughes. Martinez asks what did she say? Nurmi objects. Sidebar. dr d dr d 3The question was about Jodi Arias getting upset about a supposed joke by Alexander calling her a skank. She complained to Sky Hughes. Sky Hughes is sitting in the gallery today. Nurmi cut it off with an objection. Sidebar.

Stephens just asked Martinez if he intended to call Detective Smith. Nurmi: “I believe the non-report is convenient for the state.” Nurmi starts discussing what he characterizes as ongoing misconduct in withholding information. He thinks the state doesn’t want to show him the Mesa PD report.

Juan Martinez says that Mesa Detective Smith has not started his written report on forensic analysis. Willmott says there’s no point for Smith to submit a written report after he testifies. Martinez says the law does not require one. Stephens agrees. Judge Stephens grants the Arias defense team another interview with Smith. Martinez details how Smith will refute the testimony by Neumeister and “John Smith.” Stephens then cuts off Nurmi to discuss it the next day.

Jodi Arias, the lawyers and the Judge need to meet with a juror in chambers.

Dr. DeMarte is back on the stand. Martinez asks if she believes there was physical domestic violence between Jodi Arias and Travis Alexander. DeMarte says she does not think there was domestic violence because the accounts are inconsistent. For example, Arias told DeMarte that the abuse was over Alexander borrowing money but told the female psychologist it was about losing a job. DeMarte says she sees no patterns of abuse, though occasionally Travis may “cross the line.” Juan- What is crossing the line?

DeMarte- Name calling, threatening to harm.

Why can’t it be both losing a job and needing to lend money?

Martinez asks DeMarte about whether Jodi Arias mentioned drug abuse by her parents, and physical abuse as a child. DeMarte is Dr. No to all of it. – Michael Kiefer

Alexander was upset because Arias was “intrusive and crossing boundaries” and had lied to him, DeMarte says.

DeMarte explains her diagnosis of Borderline Personality Disorder for Jodi Arias. DeMarte: Borderlines have general instability in their life, their identity, their behavior

Martinez asks DeMarte if Alexander was officially dating anyone while he was texting 12 women at once. She says he was not. Martinez: Is it manipulative to be corresponding with 12 women at once? DeMarte says no.

Dr. D. reads from an interview with Jodi Arias’ sister Julie, who says she was very secretive…and that she knew very little about her personal life.

Martinez says Geffner placed significance on Alexander not telling the Bishop about sex. Nurmi objects that he misstates testimony. Sidebar. Martinez: Is there a psychological significance to keeping a sexual relationship secret? DeMarte: No, it’s normal.

But there is a psychological significance to keeping all other aspects of the relationship secret.

dr d damsel vicarMartinez shows a note from Dr. Samuels quoting Jodi Arias as saying her parents never physically or sexually abused her.

Jodi called at inappropriate times, asked advice, and Jodi would just always let herself in the house, according to a former Alexander roommate, Zachary Billings, who Dr. D. interviewed. Zach knew they had issues and argued about Jodi showing up in his house and had arguments about her moving back to Mesa.

Of course, Zach is not available to be cross-examined, because Zach also said that Jodi was over there all the time and there were never any other problems between them that he knew of. But we don’t get to see that testimony.

DeMarte repeats the story of Travis Alexander being home with Lisa Andrews when he notices a light go out. When he checks, it’s Jodi Arias. DeMarte calls it continuous pursuit. DeMarte concludes that it comes out of Arias’ fear of abandonment. A text from Alexander says he doesn’t know if Jodi Arias slashed his tires but she watched him make out twice. Martinez shows DeMarte a text between Alexander and Michelle Laury talking about Arias spying on Alexander. DeMarte says Jodi Arias “got caught,” Nurmi jumps up and asks for another sidebar.

There was nothing I ever saw suggesting that there was more than one peeping incident. Also, the story of Lisa and Travis and Jodi and the light was not the story I heard. dr d jodi 2The story was that Travis and Lisa were at her home when an alarm zone went off. When they checked it, No One was there.

DeMArte reads a text between Alexander and Arias referencing a stolen diamond ring. Nurmi objects. Stephens says to disregard the remark. DeMarte says Jodi took it without his consent. Nurmi objects loudly. Sidebar. Martinez: has DeMarte read the text from Alexander asking where the ring is? Arias replies that she has it, don’t worry. Travis says he’s not mad about it.

Nurmi stands and says “She made a false assertion against my client.” Stephens again tells the jury to disregard.

We have never heard from the defense concerning the ring. Was it found among Arias’ possessions when she was arrested or not? Why was it never entered into evidence? If it was too prejudicial to enter into evidence, then why is DeMArte allowed to talk about it at both trials?

Monica Lindstrom @monicalindstrom  ·  Feb 4

JM is able to get evid in about things #JodiArias did in the relationship by having DD testify re JAs condition and the actions r symptoms

BINGO! Monica gets it. Dr. DeMarte is being used to get in Martinez’ evidence.

sailing-ship in time of stormThe clouds break open and the thunder booms above.

More intrusive behavior with Matt McCartney: He moved to Crater Lake to get away from Jodi Arias, DeMarte says. A transcript of Arias ex-boyfriend Matt McCartney: Matt moved because he needed space from Jodi Arias. Nurmi reads the next document, then asks to approach. DeMarte is reading a document that indicates that Arias was clinging and needy with ex-boyfriend Daryl Brewer. He was pulling away.

DeMarte is listing “unwanted behaviors” on the part of Arias towards Travis Alexander. DeMarte says Jodi Arias would wait outside a bedroom door while Alexander was inside talking on the phone and would follow him around the house. Travis said he didn’t want to see Jodi anymore and Jodi was very upset by this.

Where is this information coming from? We haven’t seen any of this before.

DeMarte says these are more examples of intrusive behaviors. Travis told Regan Housley that he dated Jodi for a few months. Jodi hacked into his facebook, emails, and was in his home uninvited.  Regan asks Travis if Arias is still stalking him. Travis says, “Yes.” He said she cried louder & more intense over him than anything. TA says he’s afraid JA will kill herself.

Travis tells Regan that #JodiArias hacked into his IM’s. Juan puts up the Valentines Day letter from Jodi telling TA her anger is very destructive. Borderlines can keep emotions inside and then explode violently, DeMarte says. DeMarte gave Arias a test to evaluate personality traits.

Dr D Dr DHere we go with the windows and doors letter. Wasn’t that a confession that Arias got violent once as a teen? Now it’s back again being used to suggest that Jodi Arias was a violent person as an adult. Zero evidence of that. Now, it’s even being presented as a possible threat towards Travis!

DeMarte says the “likes” on Jodi Arias’ My Space page were identical to those on Alexander’s. DeMarte says that Jodi Arias’ friends called her a chameleon, and Arias would change personality depending who she was with. DeMarte: borderlines tend to have very fast attachments to other people. They idealize them — but can turn and devalue them just as quickly.

Who are the friends that said that? Be specific. Travis started writing journals and taking an interest in photography. Was he a chameleon too?

Juan is bringing up a transcript of Jodi’s testimony from 2/14 regarding suicide

Arias said she bought Advil to thin out her blood in jail and was going to slit her wrists with a razor. Arias said in testimony being read by DeMarte, that she covered herself with blankets to keep the blood from dripping onto her cellmate in the bunk below. She nicked herself with a razor blade and it stung.

But Arias said she didn’t admit her suicide plans because “they would have thrown me in a padded cell.” DeMarte reads Arias’ testimony when she said she made the “no jury will convict me” remark because she had planned to commit suicide in 2008.

Martinez is done. Stephens calls on defense to start cross. Nurmi asks to approach.

The sailboat is climbing the waves, then getting tossed down in the troughs. Things are falling off the edges of the boat, and the sharks are circling.

Kirk Nurmi begins his cross of Dr. DeMarte by saying “Good morning,” and when she doesn’t answer, he says, “I’m sorry, I didn’t hear you.” DeMarte grudgingly says good morning. Then Nurmi asks her to produce her resume, which he is going through now.

DeMarte is in private practice for therapy and evaluations services. Travis Alexander’s friend Chris Hughes is in the gallery. DeMarte says that Arias does not meet the criteria for PTSD because she had no trauma and no flashbacks or intrusive thoughts.

seaa 9

Nurmi says violent relationships would have a pattern. “Not necessarily,” DeMarte answers. The back and forth is very curt. – Michael Kiefer

DeMarte charges $300 an hour. “You work part-time as a sort of Dr. Death,” Nurmi says to DeMarte. He asks how many hours she worked on this case, she answers, “several.” Nurmi asks about two other death penalty cases DeMarte worked on. She says no. When he presses she says she testified on them. Then she says 3 altogether.

Nurmi is telling DeMarte she did not diagnose Jodi Arias as having adjustment disorder. He asks her to look at the last page of her report. DeMarte says she prefers “psychological disorder” to “mental illness.” dr d nurmiNurmi says, “You understand, I don’t care about your preferences…” – Michael Kiefer

Personality disorders are enduring and begin early in life, DeMarte says. Nurmi has DeMarte describing & defining “physical” & “emotional abuse”. Nurmi lingers over definitions of Borderline Personality Disorder in his questions for DeMarte. DeMarte says it usually needs a trigger. Nurmi asks to take the morning break.

Nurmi asks DeMarte to explain a researcher’s theory on the origin of borderline personality– born with certain sensitivities and to unable to control emotions.

DeMarte agrees with Nurmi that borderline personality is a serious mental illness.

Nurmi is as aggressive today as Juan Martinez usually is during cross examination. Nurmi and DeMarte quibble over whether her writing that “showing symptoms of adjustment disorder” is a diagnosis? Nurmi asks DeMarte about Arias’ relationship with Darryl Brewer, re: idealization.

DeMarte starts talking about Jodi Arias changing her hair and getting a boob job possibly as a way to change identity to please the people around her. DeMarte: “They have a dire fear they will be abandoned and so they glom on.”

Or not: Maybe it was always something she wanted to do, to get a boob job. Lots of women get that surgery and lots of women color their hair. It’s ridiculous to opine that she took these actions due to a mental illness

DeMarte and Nurmi use the phrase “invalidating environment.” DeMarte says that BPD could develop in those who are genetically predisposed if the person’s feelings are continuously invalidated. dr d nurmi jennDeMarte brings up “Evocative gene environment coordination” = you pick up the cute, happy baby, not the ugly whiny one. And when parents don’t understand why the child is upset and say “stop it,” it perpetuates the environment.

That sounds right on the mark.

Jodi told DeMarte she was sexually attacked by a family member when she was 5 or 6 years old. Nurmi asks DeMarte for examples of an invalidating environment in Arias’ background. DeMarte says Arias and her parents did not agree.

DeMarte says Jodi breaking up with Darryl and going with Travis right away is Borderline Personality given her pattern. Nurmi: Jodi Arias immersed herself with Alexander in PPL and the LDS and as a sexual outlet to please him. “She is becoming what TA wants her to be.” Nurmi argues that Jodi Arias remained cordial with many of her ex-boyfriends.

To DeMarte: “I understand you’re not aware of much, but…” – Michael Kiefer.

Yesterday DeMarte said that Brewer wanted distance from Jodi Arias. “Brewer told me that she left him after she joined the LDS.” dr d jodi 4During an interview with Brewer near the end of the first trial, it was clear he didn’t know Arias was already with Alexander when she left him. Nurmi asks DeMarte if it’s true that Arias broke up with Daryl Brewer. She couldn’t recall.

DD is a cool cucumber. Perfect witness, so to speak. Calm, even toned, not combative. – Jen Wood

The mast is cracking from the force of the wind, the sharks are bumping into the hull. The captain starts calling ship to shore for help.

sea 4Nurmi- Can someone with Borderline Personality Disorder also have PTSD? DeMarte- Yes it can happen. Now Nurmi starts to question her assertion that Arias does not suffer from PTSD. Nurmi asks DeMarte how to interpret Jodi Arias talking about “facials.” What is the intent? She says she takes it at face value. With all the talk about taking things at face value, Nurmi says, that would mean Alexander knows about a 12-yr-old girl’s orgasms, etc.

Nurmi: “How far does this go back (work experience)? Do you count your experience in high school?” Nurmi repeats: Is it proper to say her work as a student counts as experience in evaluation? She says the license is a test after gaining experience. Nurmi now starts asking about her research in domestic violence since she became licensed. She has none. Nurmi asks if her work as a student counts. DeMarte wants to argue an interpretation.

Nurmi, in an impatient voice: “Doctor, do you understand you are here to answer my questions?”

Nurmi just called DeMarte “you, a psychologist of one year’s experience” when she started an answer. Nurmi is reminding DeMarte that she has not published or presented at conferences for years, in contrast to the long career of Psychologist #1.

Nurmi just asked if she was evaluating Travis Alexander as well. Nurmi says Alexander was exposed to DV as child which would have an effect on the relationship. Nurrmi: Why was he still having sex with her? DeMarte I think he enjoyed having sex with her.

Now DeMarte says that shows Alexander’s ambivalence for Arias. “I think those two experiences co-existed.” Nurmi: What about Alexander telling women that Jodi Arias is stalking him and he wants her gone, then calls her for phone sex and invites her for real sex. Nurmi says that Alexander calling, texting, having phone sex, real sex with Arias is not consistent with not wanting her in his life. DeMarte repeats that Alexander liked the sex with Jodi, but not the intrusive behavior. DeMarte: “I think he liked other aspects of her. Sex, yes, and other aspects of her.” She thinks Alexander loved Jodi earlier.

Nurmi asks if DeMarte ever testified that a woman DID have battered woman syndrome. The answer is never. DeMarte says she never used the DAPS test. Nurmi: How can you say a Psychologist with 30 yrs experience did it wrong? “He absolutely did it wrong”, she replies.

Nurmi asks DeMarte if Geffner’s 30 years experience in domestic violence amounts to anything. DeMarte did not review full testimony of the other Alexander girlfriends who took the stand. sea 6DeMarte claims not to know details of Alexander’s sexual relations with other women or whether he actually had sex with them.

Nurmi is now going through Alexander’s correspondence with Jodi Arias and others. Right now, they discuss the assertion that he was a 30-year-old virgin.

The winds calm down and the waves have receeded, the sailboat has passed by the sharks. The sun peaks out momentarily.

Flores, Martinez and the Alexander sisters come out of chambers first. Then Nurmi, Willmott and Maria De la Rosa.  No Judge, no Jodi.

Stephens takes the bench. Nurmi gives her a case law cite.

Stephens leaves the bench. We are sitting in the courtroom wondering if we will see anything else today. DeMarte finishes off a can of soda as she crosses the courtroom, drops it in the wastebasket and pushes through the door. – Michael Kiefer

Stephens says no trial tomorrow. She is now going to call jurors in one at a time for questioning. Judge Stephens calls the lawyers to the bench. Will there be another witness today?

Nurmi gets DeMarte to acknowledge Jodi Arias had no prior criminal record. Nurmi got DeMarte to say Arias would have had borderline personality disorder at the time she met Travis Alexander.  That’s it for cross examination

Martinez gets up and gets DeMarte to repeat that mental illness and psychological disorder mean pretty much the same thing. DeMarte: Borderline personality disorder is not a “mental illness” but a “disorder.” Will jurors care about this distinction? – Michael Kiefer.

Makes me wonder what kind of disorder Dr. DeMarte. has to go into the highest ranks of a profession that is all about helping and protecting the mentally ill. I have to say that as a fellow professional in the field, she has my contempt as well as the contempt of a great many. I think she’s very bright and a great witness, so I hope she had a come-to-Jesus type moment about what she is doing in her work for the State.

The jury is asking multiple questions about DeMarte’s experience. Jury question asks DeMarte about her experience treating domestic violence and sexual abuse. She goes back to her training.

Questions for DeMarte.

Question: How does she know Geffner made mistakes on tests? She said it is obvious but she doesn’t answer the question.

Question: If Arias and Alexander traded passwords willingly, how is it intrusive? DeMarte says when it became unwanted.

Question: Did Alexander’s various women know about Jodi Arias? DeMarte thinks they did not know the extent of it sexually.

sea 7The sky is brighter now, the wind is mild and from only one direction, the sailboat is cruising smoothly now. Sunset is at hand.

Martinez follows up. DeMarte says Arias answered differently in two versions of the same test.

I don’t think so. They were two tests from two different perspectives, so of course some answers will tend to be different.

Martinez has DeMarte look at a Jodi Arias journal entry written a month after the murder. Nurmi asks to approach. The journal entry: “people are dropping my name as possibly having something to do with Travis’ death.” Payback for immorality? she asks.

Jodi Arias journal entry: “There is nothing he could have possibly done to deserve what happened to him.” Can DeMarte take that at face value? But oddly, doesn’t this time – Michael Kiefer

Doesn’t Jodi Arias’ journal entry make her seem more unhinged and less of a candidate for the death penalty? – Michael Kiefer

Now Juan Martinez is showing an email from Arias to Travis Alexander — after she killed him. DeMarte reads the bogus e-mail Arias wrote to Alexander after she killed him, describing her next visit as if she had not been there recently.

Martinez: Jodi Arias showed up unannounced, peeked in his windows. DeMarte: yes.

Martinez: Isn’t it true that Jodi Arias was under Alexander’s Christmas tree? Yes. He starts the next question, but Nurmi asks for a sidebar

In this text Travis is talking to Julie about finding him a wife and saying that Sarah is too young. Juan points out no sexual texting was going on and Julie was on the chart Geff had for sexting.

But it wasn’t a chart just for sexting.

Martinez: If any prison inmate had trouble adjusting, would that mean they all suffer mental illness? DeMarte says yes. dr d juan 1Martinez: Did Jodi Arias have a strong attachment to men? Nurmi asks for a sidebar.

Martinez shows a sentence saying that #jodiarias was sometimes snide. Martinez says it’s from DeMarte’s report about adjustment disorder. Martinez asks how many times DeMarte used the phrase “mental illness” in her report. She thinks 2-3 times. She counts 3.

Page 27 in DeMarte’s report says: Arias has BPD and anxiety, depression, and adjustment disorder.

What the defense missed: Dr. DeMarte added on depression and anxiety plus the adjustment disorder, because her initial diagnosis of BPD only, did not account for all the peaks and valleys from the raw data in Arias’ test results.

Nurmi asks to approach. Jodi Arias says her mom and other family members have a history of depression and no one has been treated for their mental illness. Martinez asks DeMarte if “jerk” is a psychological term. – not sure what that was about.

Martinez “Does borderline personality disorder mean the defendant doesn’t know right from wrong?” DeMarte: “She knows right from wrong.”

Martinez leads with a question to DeMarte about what her ethical obligations are re tests. DeMarte: “My ethical obligation is that the tests don’t get replicated.”

It’s a brilliant deep red sunset. The clouds are light in the sky.

The jury is sent out

The lawyers are at the bench. Will the Judge make an announcement?

Stephens did not say how long the recess would be. Martinez is with the family in the victim room. The defense team is in conference.

The jury files in.

Stephens: “We are at recess.

The jury files out, again.

The sun has set. The stars are many and bright in the sky. The sharks are back in force.

Nurmi starts the new day by asking Dr. DeMArte the meaning of sexual addiction.

And Nurmi just repeated the line of DeMarte keeping her “job as a part-time Dr. Death.” Martinez asks for a sidebar. Nurmi asks why she doesn’t consider Alexander’s remarks about 12-year-old girls as objective data that he liked children. “Are you having trouble understanding my questions this morning, doctor?” Nurmi is channeling Martinez this morning. – Michael Kiefer.

Now Nurmi accuses DeMarte of relying on Jodi Arias’ self-reports when they are favorable to the state and otherwise discounting them as lies.

DeMarte just said that Jodi Arias not writing in her journal about the TA masturbation incident implies it didn’t happen. sea 11Nurmi now asks DeMarte what journals she reads to stay abreast of theory on domestic violence. DeMarte denies saying that Arias journaled on everything but not on domestic violence. Nurmi asks if she took a course in journaling.

Nurmi to DeMarte: “I know you want to tell me how much Ms. Arias lies. That wasn’t my question.” DeMarte asks to see an exhibit Nurmi is asking about and Nurmi responds “so when you don’t want to answer a question you need an exhibit….”

Nurmi now badgering DeMarte when she doesn’t understand his questions.

The best exchange ever, DeMarte, “What’s your question?” Nurmi, “Fine, you don’t understand, we’ll move on.” – Michal Kiefer

Nurmi to DeMarte: “When did you become this guru of psychological certitude…?”

Martinez asks for a sidebar.

Nurmi produces the rules and asks how she can show the test questions to Martinez. DeMarte does not answer. Martinez objects vigorously. DeMarte asks what rule?

The boat, too stressed from earlier, is starting to come undone. Water is leaking in, and the sharks are stirring about.

DeMarte reads her notes of a meeting with Juan Martinez and Nurmi asks if there is an exception to rules that allows her to show him the test questions. DeMarte does not answer. Martinez objects vigorously.

She says she can show Martinez the questions and she believes it’s at her discretion. Nurmi and DeMarte quibble over whether she showed Martinez the questions or just explained their content to him and what the difference is. Nurmi: “You shared copyrighted material and violated your professional ethics, right?” DeMarte: “That’s not right.”dr d jodi

Nurmi to DeMarte: “Do you believe your obligation to Mr. Martinez surpasses your obligation as a psychologist?” DeMArte: “It’s my responsibility as a psychologist to explain it to him.”

Nurmi says, “OK, Dr., we’ll have it your way.” Martinez objects, Judge Stephens tells the jury to disregard the remark.

Bob Geffner wrote a letter to DeMarte to “teach” her not to expose questions on copyrighted diagnostic tests. Nurmi says she has a history.

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And that ends the rebuttal phase. Surrebuttal is ongoing, and who knows if there’s finally light the end of tunnel in this over-extended trial.

The sailboat shudders its way through the cold, starry night.

 

 

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Horn, Corn, and a Truckload of Porn

Horn, Corn, and a Truck Load of Porn: Update on the Arias Penalty Retrial (Dec. 20)

Fact-based reporting

by Rob Roman

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Bringing you up to date on the epic battle … the interminable saga … the perpetually stalling Arias penalty retrial. If you’re anything like me, you have been sidetracked, distracted, busy, bored or befuddled by what’s going on in the Jodi Arias penalty phase re-trial, but you want to know what’s gone down and what’s likely to happen next. There’s been plenty of talk about this being a nightmare, a perpetual trial, and an interminable saga. So far, the trial is actually right on schedule and, as we predicted, it would last 3 months AND we said it would go into 2015.

The penalty phase retrial has gone 25 days so far, that’s 9 days for the prosecution and 16 days for the defense … so far. The retrial began on October 21st, and there’s no end in sight, as there are multiple issues to deal with and the defense has 14 potential witnesses.

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Prosecutor Juan Martinez, ever the sit-in-the–front-row teacher’s favorite student, presented his case for why Jodi Arias should be executed with cold efficiency in just 9 days, schnip – schnap. First up was Mesa Detective Michael Melendez, the guy with the New Yawk accent who discovered the deleted photos in Travis Alexander’s camera (a Sony Cyber-shot DSC-H9).

All the recovered photos were shown, and Detective Melendez explained how Jodi Arias needed to use 5 steps to delete each photo. The implication there being that Arias was not in an altered state of mind and was not in a fog with her memory seriously impaired. She calmly and coolly took hundreds of steps to delete all the photos. What was not explained is that just 5 steps can delete ALL the photos taken that day, according to the instruction manual, something an experienced photographer like Arias could do in her sleep.

Sony_H9_3qsony-cyber-shot-dsc-h9_2

“Deleting images

(Index) button
(Playback) button
MENU button
1 Press (Playback) button.
2 Press MENU while display in single-image mode or in index mode.
3 Select [Delete] with v on the control button.
4 Select the desired deletion method with b/B from among [This Image],
[Multiple Images] and [All In This Folder], then press z.
See page 45-46
michael
Melendez, not to be confused with Mendes, you racist you, showed the jury the naked and racy photos of Arias and Alexander, the shower photos, the foot photo with a bloody Alexander, and the mystery final photo.

Next up was Detective Esteban “Steve” Flores, who inexplicably is no longer doing active investigations, but has now become a “Media Relations Officer for the Mesa Police Department”. Detective Flores was the main conduit of all the testimony related to the day Travis’ body was found, the crime scene descriptions, and the investigation of the crime up to and including the interrogation of Jodi Arias. The bloody and gruesome crime scene photos were shown to the jury.

Dr. Horn a.k.a. "super-crepy Rob Lowe"

Dr. Kevin Horn a.k.a. "Super Creepy Rob Lowe"
Dr. Kevin Horn a.k.a. “Super Creepy Rob Lowe”

Dr. Kevin Horn was the next witness up. Horn went over the autopsy findings, describing all the wounds, with many autopsy photos being shown. Dr. Horn again stated his opinion that the gunshot was last and probably post-mortem, in direct contradiction to Arias’ explanation of events. At one point on re-direct, prosecutor Juan Martinez suddenly approached Horn and feigned stabbing him with his pen, stating “that didn’t take long, did it?”. Apparently he wanted to demonstrate that all the stabbings could have happened in seconds. We agree.

After that was Nathan Mendes – the Former Detective, from the Siskiyou County California Sheriff’s Office, who set up surveillance on Arias in Yreka and arrested her, and he was present when the famous mug shot was taken. Detective Mendes testified that Arias asked him how her hair looked before being photographed.

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You will recall that Arias asked if she could take her make-up with her when she was arrested in Yreka at her Grandparent’s home where she was living. She could not. Also she had a rental car packed for travel with 2 knives in her luggage and a 9 mm gun taped to the bottom of the seat that was not found until much later. Mendes also testified that he found receipts in the home from the California to Arizona to Utah trip. None of the receipts were from Arizona and none were from June 4th.

On cross exam, the Defense attacked both Doctor Horn and ex-Detective Flores about the change in the order of injuries as Flores was claiming the gunshot was first early on to numerous media outlets and in pre-trial hearings. Flores also stated that it was Dr. Horn who provided that information to him, but Dr. Horn denied any knowledge of having told that to Detective Flores. Nurmi also suggested it was possible that this murder was not especially cruel, the factor that opened the door to the death penalty in the first place.

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The State then called Kevin Friedman, a former Yreka police officer who investigated the theft of the gun and other items taken from Arias’ grandparent’s home on May 28th, just 7 days before the killing. Walmart loss prevention specialist Amanda Webb then made her way back on the stand to testify that Arias had purchased a 5 galllon blue kerosene gas can, but there were no records found that one had been returned, as Arias claimed.

A notable feature of the cross examinations by defense lead Kirk Nurmi, besides all the weight he’s lost and his now full head of hair, is that he has been said to be imitiating Juan Martinez. Nurmi was reported to have slammed down a binder of Walmart records during the cross of Webb, and to have asked Detective Flores if he had any memory problems. We have previously reported that this is not imitation, that sincerest form of flattery, but this is tactics. This is Nurmi using different tactics because the penalty trial is a different situation, calling for a different approach.

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There were 5 days of Flores on the stand altogether, going over the now famous interrogation tapes and the sex tape was played in its entirety. Topping off the prosecution case were the allocutions of Travis’ younger brother Steven Alexander, and his younger sister, Tanisha Sorenson. These were heartfelt pleas to the jury and first-person memorials about the life of Travis Alexander.

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“Steven Alexander described nightmares, ulcers and constant trauma from losing his brother, including locking the doors when he showers. Tanisha Sorenson called it a “living hell.”

“When I lay down at night, all I can think about is my brother’s murder,” Steven Alexander said as other family members could be heard crying in the gallery.”

http://ktar.com/22/1778950/Travis-Alexanders-siblings-give-emotional-statements-at-Jodi-Arias-penalty-retrial

The trial ended on the 18th of December and this was the date scheduled to have been the very end of the trial. The trial is now on hold for the Holidays until January 5th. The trial began to get messy even before the defense took the helm, and it has only gotten messier.

Mess number one – The jury

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After the prosecution’s concise presentation, things got messy quick.  Messy, messy, messy. First of all, one juror was dismissed on the opening day of the trial for a family emergency. A second juror was dismissed on the 2nd day of trial after she sought out legal reporter Beth Karas and asked her if she was Nancy Grace. Actually, the Judge should have left her in if she couldn’t tell the difference between Beth and Nancy.

“The first was let go Tuesday because of family problems. The second was dismissed Wednesday after she asked a freelance TV journalist if she was CNN superstar Nancy Grace, who has been a vocal crusader against Arias.”

http://www.azcentral.com/story/news/local/mesa/2014/10/01/prospective-jurors-vent-arias/16570903/

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A third juror was dismissed the day after Thanksgiving, as she was stopped for DUI, then it was discovered that there was a warrant on her for passing bad checks. This leaves only 3 alternate jurors to go before the threat of a mistrial if they end up with under the statutory number of 12. Yes, the lady with the multi-colored hair and a few other jurors from the guilt phase volunteered to comeback and serve (just kidding) – although she and others have been spotted in the courtroom.

Mess number two – The family Flores and the Mitigation Specialist

PNI Arias Mon

Media Representative Flores’ wife and daughter have been significantly involved in the Justice 4 Travis campaign. Daughter Angela is on Youtube singing a memorial song for Travis (She has a very nice voice, too) and Mrs. Corinna Flores is said to have been on Twitter under the handle “I’m boss that way” tweeting about the case and reportedly leaking confidential information from closed meetings in the Judges’ chambers. This had been disputed. None of these things would be seen as unseemly if the trial were concluded, but as we know, the trial has not nearly concluded.

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“I’m Boss that way”

Mitigation Specialist Maria De La Rosa, whom I like and have communicated with, is reported to also have gotten too personally involved in the case. She has been tweeting about the case under the Twitter handle of “Cougarluscious”, and has been getting involved with Arias supporters. This is a little harder to discern on the basis of wrongdoing, because part of her job as mitigation specialist IS to ferret out any and all evidence in support of sparing Ms. Arias’ life and this would seemingly include communicating with supporters.

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“CougarLuscious”

Ms. De La Rosa was also stopped at the Estrella jail, and an envelope full of legal documents Arias gave her was searched, revealing an Arias art drawing, now identified as “The Pinwheel”. Stupidly, the County Sheriff’s office, or MSCO, tried to ban Maria from the jail, which would have certainly caused an appeal issue – not allowing the mitigation specialist access to the defendant / convict. They soon thought better of that, though. This lead to our speculation that the County wants to fire Ms. De La Rosa, but must wait until the end of the trial in order to not cause an appeal issue – leaving the Defendant / convict without a mitigation specialist would be in violation of Arizona statutes for a capital trial.

Jodi-Arias-Pinwheel-artwork
The famous Pinwheel. Maria De La Rosa got searched, Jodi Arias got a write-up

Mess number three – Sheriff Joe and the false Arias motion

You may remember that between the guilt phase and the penalty retrial, a motion was made by Jodi Arias asking for a restraining order to be placed on Sheriff Joe Arpaio and crime entertainer Nancy Grace. The idea was that Sheriff Joe was supplying Grace with information about Arias’ leaking breast implant and her hepatitis C condition.

This information and the motion were found to be hoaxes filed by a convict from New Jersey. The trouble was that Sheriff Joe had a press conference where he slammed Arias for her motion, even though it was easy to see that the signature was obviously not hers and the motion was made with materials that Arias obviously had no access to. The defense brought up the fact that anything said about Arias, no matter how pernicious, will be believed because the public is so poisoned against her by the media and this does not allow for a fair trial.

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Mess number four – the unsequestered jury

Famous trial lawyer, appellate attorney and Harvard law professor Alan Dershowitz has already sounded the alarm about how it is just about impossible for a very high profile defendant to get a fair trial with an unsequestered jury. This is because the atmosphere is just permeated with strong feelings one way or the other.  Juan Martinez’ boss, District Attorney Thomas Horne, is already on record worrying that the unsequestered jury will be an appeal issue. Nevertheless, Arizona Judge Sherry Stephens did not sequester the jury because ‘we have always not sequestered the jury in the past in Arizona’. Well, Arizona bars were always equipped with spittoons, too. Why aren’t they now? Did times change?

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Mess number five – The secret witness

The defense, after taking the reigns, stated that they had 3 witnesses who would refuse to testify unless the courtroom was closed to the media and the public. Judge Stephens heard the motion and affirmed it. The court was cleared and the secret witness testified. Rumors abounded that the secret witness was Jodi Arias herself. The media balked and appealed the decision to the Arizona Court of Appeals. It’s insane that the Judge would affirm a motion to have a witness who had never been shy of the media, both before, during, and after the trial to suddenly now be requesting to have the public and media cleared for her testimony. Why on earth would Judge Stephens allow such a motion?

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Even so, no one on the prosecution supporter side would give the Judge credit for possibly having some compelling reason for her ruling. Was it because Jodi Arias mentioned the other secret witnesses in her testimony? Wasn’t there some kind of accommodation the court could make without altogether clearing the courtroom? Prosecution supporters also do not want to blame the reason for this special  request on the people who harassed, intimidated, and attacked Arias’ witnesses during the guilt phase. These are the people threatening our system.

The Arizona Court of Appeals agreed with the media that the public has a 1st Amendment right to know what is going on, especially in a capital trial. The Court stayed the Judge’s ruling, and the defense will appeal that ruling, probably on January 5th. Will the other three witnesses, reportedly a long term boyfriend of Arias – Darryl Brewer, A co-worker of Arias’ – unknown, and a former friend of Travis Alexander’s – possibly New Zealander Marc McGee, formerly of Riverside, California, still expect to testify in secret?

Will they refuse to testify? Also under contention is the media’s request to have the transcripts of Arias’ testimony released. Will that be granted, even though the transcripts of all the other witnesses have not been released? Also, was the secret witness actually Jodi Arias? Most people close to the case are saying so. Maybe this matter was confused, because the Judge will refer to the defense as “Arias” in motions. But, people seem to be sure it was Jodi Arias herself who testified in secret.

Mess number six – The Porn

The defense vowed to fight the stay, but continued the trial by calling up Bryan Neumeister, the private computer, audio and video expert who often testifies for the prosecution. You may remember Neumeister as the guy in the guilt phase who testified that he enlarged the reflection in Travis’ left iris from the “Calvin Klein” shower photo and found it was Jodi Arias, with no weapon. Martinez seems to have a distaste for “science-types”.

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Neumeister resisted Juan Martinez’ combativeness, and he stated several times that he couldn’t understand the prosecutors’ questions because Juan had a very limited knowledge about computers. He also accused the prosecutor of lying. But the big thing is that Neumeister made a startling discovery. He said that when he checked the “clone” copy of Travis’ hard drive, he found thousands upon thousands of deleted porn files, supposedly including searches based on the word ”teens” and “tweens”. “Tween” is a word for children on the cusp of being teenagers. They aren’t quite teens, but they are no longer children in the strictest sense. They’re in be-tween. This is exactly the definition of a 12 year-old.

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Neumeister also intimated that child porn was among the deleted files. This was a bombshell in the case, because Detective Melendez testified in the guilt phase that not one shred of porn was found on Travis Alexander’s computer. Juan Martinez, as he has done in other cases, immediately began blaming Neumseister for somehow contaminating the hard drive copy with porn. Alternatively, he blamed 2 former Arias defense attorneys for turning on the original computer and thereby allowing built-in antivirus programs to eliminate all the porn on the computer.

This could not be possible, because the defense attorneys were always under the watchful eye of the police when they inspected the original computer. Detective Flores was in charge of the computer. It was also reported that an anti-virus program found on Alexander’s hard drive was a program that did not exist in 2008. The implication was that the Mesa Police had tried to remove all traces of porn found on Travis’ computer. Many prosecution supporters responded by saying ‘So what, that’s normal all guys have porn on their computer’.

That’s not the point. The point is that IF someone from the police removed the porn from Alexander’s computer, what else did they remove? What other evidence, possibly exculpatory, could they have hidden? Since former Detective Flores was close to the evidence, it was suggested that Flores was the one who removed the porn. In any case, this is another issue for appeal, and it’s a serious one.

Is this a Beta cassette of Porn?
Is this a Beta cassette of Porn?

Martinez, by blaming the former defense counsel and Neumeister, was conceding that there was in fact porn on the computer, and that it was somehow ‘disappeared’.

That there was porn on Travis’ computer should surprise no one, given his references to porn and his sexual vocabulary in the sex tape, etc. which could only have come from a person exposed to porn. This issue, like many others in this case, is still awaiting further clarification and resolution, because most of the conversation about this matter was held in chambers and is not yet available to the public.

Mess number seven – Court reporters and Legal Experts

Yihun Jeong fron The Arizona Republic
Yihyun Jeong fron The Arizona Republic

As a substitute fro HLN broadcasting the trial live and endlessly giving slanted, biased, jesting and mean-spirited views, we now have reports, blogs, “spree-casts”, and Tweets from reporters and Legal commentators inside the courtroom.  Some of them, like Beth Karas, Michael Kiefer / Yihyun Jeong, and Monica Lindstrom, are reporters and/or legal experts with ethics, integrity, and a sense of objectivity. They realize this is a capital case, a serious affair where a defendant / convict may have her life taken by the State. Others, like Jeff Gold, Jen from the Trial Diaries, and Wild about Trial (a division of HLN), are playing to popularity and the lowest common denominator with little thought about ethics or fairness.

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We do note that Jeff Gold stated that this case should not have been a Death Penalty case. He must have taken some heat among his listeners for that.

“The first jury hung (no not that kind of hanging although I know many of you wish so.) Many states end it there. But AZ allows a second bite of the apple.
Moreover, the DP is usually reserved for murdering kids, cops, multiple persons, a particularly heinous murder (chop body up and eat it) or murderers with long records. This is just not a clear case for DP. “

Jeffrey Evan Gold – Court Chatter TV Legal Analyst

http://www.courtchatter.com/2014/09/jeff-gold-weighs-in-on-jodi-arias-on.html

Since then, we’ve heard only a few astute legal observations and almost nothing in any way positive said about the Defense or Arias. Often, his Tweets are rude comments, super-biased comments, comments with sexual innuendos, dumb jokes or self-promoting comments.

Gold often tweeted about “Hodi-Jodi”, with zero evidence that Arias was in any way a “Ho”. He knows his audience is 95% pro-prosecution and constantly plays to that audience with tweets about ‘how dare the defense put up a defense when their client is a sadistic, manipulative, maniacal murderer’? He also enjoys making a big joke out of the whole trial. Wild about Trial seems to be full of high school or college interns, a giggly gaggle constantly spewing corny jokes, many of them laced with 5th grade bathroom humor.

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Wild about Trial talking heads
Wild about Trial talking heads

Jen, from The Trial Diaries who reportedly had or is having an affair with the prosecutor, Juan Martinez, has acted basically as a cheerleader and sounding board for prosecution supporters. Jen couldn’t be counted on to give even a sliver of objective news about the defense or Arias. Nancy Grace and former HLN talking head Vinnie Politan also tried to get in on the act inviting brownie points from trial fanatics for throwing stones at Arias and her defense.

With this bunch of block-heads, it’s really hard to get an objective picture of what exactly is going on in that courtroom. Thankfully, a few of them do have integrity.

Mess number eight – The Death Penalty on the table.

Even some prosecution supporters are wondering if it would not be better if the State goes over Judge Stephens and Juan Martinez’ head and takes the Death Penalty off the table. This would effectively end the Arias trial, and the Judge would only decide on Life in prison with no chance of parole, or twenty five years to life in prison with an almost non-existent infinitesimal chance of parole.

The-Death-Penalty-in-2013-335x256Kasab2209a

Along with a number of other motions to remove the death penalty awaiting a decision by the Judge, Nurmi and Willmott earlier filed their most epic motion yet, a 59 page motion to dismiss the death penalty. In it, they review all their charges of misconduct against the prosecution from the entire history of the case, in addition to new allegations from the post guilt trial and the penalty re-trial.

The motion to dismss the charges and the case also includes an alternate plea in the alternative, to remove the death penalty from the table. Here, court reporter and legal expert Monica Lindstrom explains why the death penalty realistically could be taken off the table possibly due to being under pressure from higher-ups and the people of Arizona:

http://ktar.com/305/1787926/Legally-Speaking-Dismissing-death-for-Jodi-Arias-could-be-a-reality

Non-secret Defense Witnesses

In place of Alyce LaViolette and Dr. Richard Samuels, Forensic Psychologist Dr. L.C. Miccio-Fonseca, and Psychologist Dr. Robert Geffner were called to the stand by the defense to interpret the relationship between Travis Alexander and Jodi Arias and Jodi Arias’ state of mind prior to, during, and after the killing. The defense stated earlier that there was good reason to believe that Alexander was shot by Arias in the shower, as it agrees with the evidence, whereas the prosecution’s assertion that he was stabbed first and then shot does not. Nurmi possibly said this because he was not allowed to bring up Arias’ claim of self-defense, since the jury rejected that theory in the guilt phase.

Dr. Fonseca examined the sexual relationship between Alexander and Arias and the dynamics of that relationship, coming up with the same basic conclusions as Alyce LaViolette. She even stated she believes Alexander did watch child porn. On cross examination, Juan Martinez tried to discredit Dr, Fonseca and her testimony.

Dr. Geffner, who was pilloried by trial watchers in the guilt phase, for having a coughing fit, burping loudly, and spilling a large container of water, was next on the stand. His job was to interpret psychological tests and diagnoses of Arias, and to explain other aspects such as Arias’ temperament, propensities toward violence or lack thereof, and her state of mind. Juan Martinez had begun his cross of Doctor Geffner, when the trial ended for the year.

More details of what was in the text and e-mail exchanges between Arias and Alexander were revealed. One interesting detail is that Jodi Arias claimed to own a stun gun in early 2008, and she apparently offered it to Alexander as protection from the person who was slashing his tires.

Reportedly, there were no spills, no mess.

ur-so-corny

Nothing much can or will be done about the Corn going on regularly in this trial. The so-called legal reporters will continue their pandering and catering to the prosecution supporters, and acting like the entire trial is one big joke and an opportunity to try their hands at low-brow comedy and over-dramatic tweeting.

Maybe something can be done about Horn, in that he continues to be adamant that once Alexander was shot in the face, he would not be able to move or defend himself. This seems to be more and more unlikely and more and more contradictory to the evidence.

But something really needs to be done about the Porn, because police and/or prosecutors removing, hiding, or disappearing any evidence should never be tolerated by a court of law. Some remedy for this seeming violation should be offered. Appeal issues are piling up, leading me to make a remark on social media that this case has become a literal Chia Pet of ever-sprouting possible appeal issues. This holds true no matter what you believe about the verdict in the guilt phase of the trial.

More than this, the new claims of removing evidence seem to give even more credence to earlier claims about the 1st degree felony murder charge and the possible switcheroo of the order of injuries by former Detective Flores and Dr. Kevin Horn.

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This may have also included prosecutor Juan Martinez, who is well known for his win-at-all-cost attitude, which then would become collusion or conspiracy. This would be very difficult to prove, but especially if Arias is sentenced to death, all these little allegations could possibly add up to one big and powerful allegation which could change the course of this seemingly never-ending case.

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Reader: Your Arias trial ‘Holy Grail’ felony murder charge article is baloney

Reader: Your Arias trial ‘Holy Grail’ felony murder charge article is baloney

by Rob Roman & Amanda Chen

liberty-bell-at-independence-hall-1901-padre-art

Did “Cate” decimate our Arias trial felony murder arguments?  It’s complicated.

“Like a wrecking ball’ –  One of our Readers decimates our Arias Trial felony murder argument?

miley_cyrus_wrecking_ball

One of our readers read our Holy Grail article about how we believe the 1st degree Felony Murder charge was bogus.

https://spotlightonlaw.wordpress.com/why-the-felony-murder-charge-is-the-holy-grail-of-the-jodi-arias-case-nov-5-2014/

“Cate” believes that Judge Stephens and Juan Martinez were correct and that Kirk Nurmi, Vladimir Gagic, Amanda Chen and Rob Roman are wrong about the validity and the application of the Felony Murder charge. “Cate” supplied some very good case law on this issue.

 

In our last article, we were asking a number of questions about the Felony Murder Charge:

  • Does it make sense that in Arizona, you can find someone guilty of BOTH Felony Murder (an unplanned murder) AND Pre-meditated murder (a planned murder)?
  • Does the felony murder charge correctly apply to the Arias case, or was the charge kept solely to give the jurors another choice of 1st degree murder (in a sort of heads I win, tails, you lose situation for the prosecution)?
  • Can you be found guilty of felony murder (A death occurs in the course of another dangerous felony) based on burglary with intent to commit the murder?
  • Is this a legitimate charge under the facts of State v. Arias?
  • Were the 7 jurors who found for felony murder correct or not?

It's complicated lg

We needed to dig deeper into the issue to get to the bottom of who’s right and who’s wrong about this. I’m going to make this as easy to understand as possible, easy enough for even me to understand. The citings and cases are all here for you to look at in more detail if you like.

“Cate” offered up an appellate case which had most of the relevant case law regarding the felony murder rule in Arizona, and how the elements of the felony and the elements of the murder can now be, in some cases, the same.

The appelate case is State v. Moore, argued in the Arizona Supreme Court.

az_moore_j

State v. Moore

http://supremestateaz.granicus.com/DocumentViewer.php?file=supremestateaz_34a4d3c5c51b1eedea7eb5b74365035c.pdf&view=1

Moore: It’s not felony murder because I can’t be charged with felony murder based on a burglary that is itself based on the intent to murder.

The Court: Yes, you can, and you did.

 

“Relying on State v. Essman, 98 Ariz(1965), Moore also argues that under the merger doctrine, felony murder cannot be predicated upon a burglary that is itself based on the intent to murder.”

State of Arizona v. Julius Jarreau Moore is an appeal of a death sentence for a man who killed 3 people. One murder victim was outside the house with a woman who also was shot, and 2 murder victims were inside the house. Sergio Mata, Guadalupe Ramos, and Delia Ramos were all shot to death in their rental home and Debra Ford was shot and survived. The crimes took place during a flurry of crack smoking.

'This is a textbook case of homicide.'

“Debra Ford went to the Phoenix apartment of Sergio Mata, Delia Ramos, and Guadalupe Ramos to purchase and smoke crack in the late evening hours of November 15, 1999. In the early hours of the 16th, Moore came to the apartment looking for Debra. When Debra came out to see Moore, they talked for a bit and smoked some crack.

Shortly after, Sergio came out of the apartment and Moore shot him in the head, killing him and then turned to Debra and shot her in the neck.

Debra remained alive and conscious while praying for her life. She heard several additional shots fired while she was on the ground. When police arrived and went into the apartment, they found Guadalupe on the couch and Delia inside the bedroom closet. Both were shot to death. Debra survived and testified against Moore during trial.”

Sergio was shot outside the apartment building in a public area, and there was evidence of pre-meditation, so his murder was charged as a premeditated murder. Guadalupe and Delia were shot inside the home, it appeared as if Moore’s motive was to steal drugs, and there was some reflection, so those two murders were charged as both premeditated and felony murders.

The felony murder was first based on burglary – theft, but the prosecution changed it later and based it on burglary – assault, possibly because they had more evidence of the assault than the theft.

The trial was in 2002, the jury found for the aggravator of multiple murders, but did not reach consensus on the aggravator of cruelty. The case is interesting because right during the penalty phase, Moore’s medical expert had a heart attack, causing a mistrial. Moore had a new aggravation and penalty phase in 2007, the jury found the same aggravator and sentenced Moore to death.

 

Our felony murder argument being destroyrd by one of our readers.
Our felony murder argument being destroyrd by one of our readers.

In the mandatory appeal before the Arizona Supreme court, Moore cites a number of issues. The relevant one to the Arias case is this:

Relying on State v. Essman, (1965), Moore also argues that under the merger doctrine, felony murder cannot be predicated upon a burglary that is itself based on the intent to murder.

 

State v. Essman (1965)

Essman: It’s not felony murder because the felony and the murder are the same thing.

Felony Murder does not apply when the felony is included in (Merged into) the charge of homicide.

Court: Yes, we agree.

 

Essman is in itself an interesting case. Essman was home and cleaning his gun with his daughter in a near bedroom. He began playing around with the gun. His wife came home and told him to put the gun away before someone gets hurt.

Essman said something like “See? It’s harmless”, as he pointed the gun at the family dog and fired twice. Nothing happened because Essman had emptied the revolver. Then he aimed the gun at his wife and pulled the trigger. The gun went off and killed her. Apparently there was one bullet left in the chamber. Jerk.

https://www.youtube.com/watch?v=ylqEN7J3GLA

 

In his instruction on second degree murder the judge in Essman instructed the jury that the felony-murder doctrine applied where the felony was assault with a deadly weapon. The pertinent portion of the instruction was “when the killing is done in the perpetration or attempt to perpetrate a felony such as assault with a deadly weapon.” The felony-murder doctrine does not apply where the felony is an offense included in the charge of homicide.

The felony murder doctrine basically states that any death caused during a dangerous felony becomes a 1st or 2nd degree murder.

 

The decision quoted People v. Moran 246 N.Y. 1927

“The acts of assault merge into the resultant homicide, and may not be deemed a separate and independent offense which could support a conviction for felony murder.”

 

In the appeal of State v. Moran, Chief Judge Cardozo quoted State v. Huter

“To make the quality of the intent indifferent, it is not enough to show that the homicide was felonious, or that there was a felonious assault which culminated in homicide”. People v. Huter 184 N.Y.

“Making the quality of the intent indifferent” means that the intent needs to be to commit a felony which causes a death, rather than an intent to commit a murder. Remember in felony murder, the death caused could be accidental (heart attack, death of a bystander, etc) or intentional (sudden decision to kill, foreseeable consequence of felonious activities).

“Such a holding would mean that every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential.” People v. Wagner 245 N.Y.

 

– And this is why most states practice this kind of common law.

“The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, like robbery or larceny or burglary or rape.” 246 N.Y.

This is the Merger Rule. When the predicate felony of a felony murder merges with the actual murder itself (assault, aggravated assault, assault with a deadly weapon), the merger rule applies and the crime cannot be charged as a Felony murder.

It's complicated

 

Why is this so important?

In the case of 1st degree murder, if the crime can be charged as a Felony Murder, two things happen:

 

First, there are no lesser included offenses or degrees of the crime. You either get convicted of the highest degree of murder, or you are not convicted. It’s all or nothing.

With Pre-mediated Murder, the jury can decide on lesser offenses and lower degrees of the crime (2nd degree Murder, Heat of Passion, Manslaughter), so you do not necessarily get convicted of the highest degree of murder.

 

Second, intent to murder no longer  has to be proven, only that a death occurred during an intent to commit a dangerous felony.

It might be advantageous for the prosecution to charge felony murder over premeditated murder, because a conviction would be of the highest degree, and intent to kill doesn’t need to be proven.

 

This is why the Merger rule is meant to prevent a murder with no dangerous felony other than the murder itself from being charged as a felony murder.

A serious problem with the Arias case is that the prosecution never really specified prior to trial exactly what the felony defining the burglary was, meaning the Felony part of the felony murder is Burglary with intent to …….?

 

It’s not even specified in the jury instructions, the way it is in other cases. It merely says burglary with intent to commit any theft or felony.

So what’s the felony in the felony murder charge in the Arias case?

 

SWCC bell

In Moore, State v. Miniefield is also cited. You can hear Kirk Nurmi discussing this on day 9 of the trial (we included the video and where to find it in the Holy Grail article).

Miniefield basically got drunk and went ballistic trying to kill a guy he got angry at. He had at times, a handgun, a shotgun, and finally, Molotov Cocktails. He finally managed to set the guy’s house on fire and the guy’s young daughter was burned to death.

Kind of makes it difficult to root for this guy in his appeal, doesn’t it?

 

It's complicated lg

 

State v. Miniefield (1974)

http://law.justia.com/cases/arizona/supreme-court/1974/2763-0.html

This guy wanted the felony murder conviction dropped so badly, he was even willing to admit to pre-meditated murder.

stock-footage-activist-man-face-violence-molotov-cocktail-burning-danger

 

Minefield: It’s not felony murder because I intended to murder the victim.

It’s not felony murder because the arson was not independent of the homicide.

Court: Yes, it is felony murder and the arson IS independent of the homicide.

 

“Later Arizona cases implicitly rejected the broad language in Essman suggesting that the predicate felony must be “independent of the homicide.” For example, in State v. Miniefield, the defendant argued that it was fundamental error to charge him with felony murder by arson because “the arson was merely the use of fire to attempt to kill the victim.”

The Court rejected this argument by noting that the felony murder statute provided that when a person commits arson and the arson results in death it is first-degree murder. “The statute does not draw a distinction between a person who intends to kill another by fire and one who only intends to burn down a dwelling house and accidentally kills one of the occupants.”

 

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See the logic there? Arizona doesn’t care if premeditated murder and felony murder, seemingly mutually exclusive, are both charged and both found as long as the basic elements of each theory are proven.

Most recently, the Court distinguished Essman in State v. Dann (Dann I), (2003).

“There, the defendant argued that because he intended to murder a victim rather than assault him, he could not be convicted of felony murder.

 

Noting that the defendant did not dispute that felony murder could be predicated on burglary based on intent to commit assault, the Court held that sufficient evidence supported the finding of the predicate offense. The Court further observed that the merger rule does not apply in cases in which the separate crime of burglary is alleged.”

Meaning that it helps a felony murder charge, to have a separate charge for the felony.

The Jodi Arias case did not have a separate charge for felony.

 

“Moore complains that the State, while charging felony murder based on burglary, did not specify until the settling of jury instructions, and after the close of evidence, that burglary would be defined by his intent to commit murder rather than theft.”

Prosecutor

Arizona prosecutors sure like to keep secrets from the defense, don’t they?

“We agree with Moore that Blakley implies that the state should identify before trial the particular felony that will be used to define burglary when the latter crime is the predicate for felony murder.”

 

Moore was indicted for and convicted of two counts of premeditated and felony murder for the murders of Delia and Guadalupe, one count of premeditated murder for the murder of Mata, one count of attempted first-degree murder for the injuries to Ford, and one count of first-degree burglary. The trial court was to sentence Moore in August 2002, but the hearing was vacated after the Supreme Court held that Arizona’s capital sentencing scheme was unconstitutional. See Arizona v. Ring (Ring II), (2002).

 

Clarence Thomas, Antonin Scalia, John G. Roberts, Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, Smauel Alito Jr., Elena Kagan

Arizona v. Ring (Ring II), (2002). Is a landmark case which held that juries, not judges, should decide the death penalty mitigators and aggravators and decide on life or death.

 http://www.deathpenaltyinfo.org/us-supreme-court-ring-v-arizona

Landmark cases are sometimes based on the trials of real pieces of ……… work, like Ring.

 

“In November 2004, the trial court empanelled a jury to determine Moore’s sentence. The State alleged two aggravators: that Moore murdered Delia in an especially cruel manner, and that Moore murdered multiple persons on the same occasion. The jury did not reach a verdict on the (F)(6) aggravator, but did find the (F)(8) aggravator. Before the penalty phase concluded, the court declared a mistrial because Moore’s medical expert suffered a heart attack.

Moore was another endless case.

 

Why felony murder is so contentious:

Remember that Felony Murder means that if someone dies in the course of a dangerous felony, that death can become a 1st degree murder. A defendant could get life in prison or the death penalty. While Premeditated Murder includes lesser charges a jury could decide on.

There’s a famous case where a man goes into a home with a gun to rob it. He hears a sound and changes his mind and runs out of the home. On the way, he trips over a wire falls and the gun goes off. Unknown to him, there was a person behind the wall who was shot and killed. The man leaves thinking the worse thing he did was the gun went off. He was arrested for felony murder and faced the death penalty. This is because he attempted a burglary and in the course of the attempt, he caused the death of a person.

This is the landmark U.S. Supreme Court case of Furman v. Georgia.

http://www.floridalawreview.com/wp-content/uploads/2010/01/ShatzA2.pdf

 

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Scary to think that because of the felony murder law, the man faced the death penalty for what was otherwise an accidental shooting. Without the felony of burglary – theft, this would normally be a 2nd degree murder at most or manslaughter.

So, there are lots of consequences, sometimes unintended, when applying the law to the facts of a case or deciding how a defendant will be charged.

– and sometimes they are intended.

 

dann_20120308094336_640_480

State v.Dann (2003)

http://supremestateaz.granicus.com/DocumentViewer.php?file=supremestateaz_510ea0c0c124b6f12fd2ce54a0d0ad2d.pdf&view=1

Dann: It cannot be Felony Murder if I enter the home in order to commit premeditated murder.

Court:  It is felony murder because the felony was burglary with intent to commit assault. In the course of that felony, you caused the death of a person. There is sufficient evidence to find intent to assault.

 

“The jury found Dann guilty of felony murder on all three murder charges. The predicate offense for the felony murders was burglary, which, in turn, was predicated on an intent to commit aggravated assault. The State charged that Dann went to the apartment intending to shoot Andrew, which constitutes an aggravated assault.

Dann asserts that the evidence showed that he entered Andrew’s apartment intending to murder Andrew, not assault him; therefore, he argues, the only felony offense to support the burglary charge was murder, not aggravated assault.”

 

“This results in ‘bootstrapping’, Dann maintains, because the State is saying that he committed felony murder because he entered the apartment intending to commit premeditated murder.”

 

 

 

The Court held that sufficient evidence supported the finding of the predicate offense. The Court further observed that “merger does not apply in cases in which the separate crime of burglary is alleged and established.”

“Dann I and Miniefield defeat Moore’s argument that felony murder cannot be predicated on a burglary that is based on the intent to murder. The felony murder statute, A.R.S.§ 13-1105(A)(2), does not distinguish between burglaries defined by intent to commit assault versus intent to murder.”

130712171019-04-zimmerman-0712-horizontal-gallery

 

In Arizona, yes you can!

So who is right about the Arias case? “Cate” and Juan Martinez and Judge Sherry Stephens and The Supreme Court of Arizona or Amanda Chen and Rob Roman and Kirk Nurmi and Vladimir Gagin?

“Cate” made the comment that legal interpretations and decisions should be left to the professionals (Prosecutors and Judges), and not to layman blog writers. She forgets that Nurmi and Gagin are experienced criminal defense attorneys in Arizona, and they say the felony murder charge is in error.

 

“Cate” also forgets I went to law school as did Amanda, I’m a paralegal working in Federal and State Civil Litigation with an emphasis on the Disabled. I think I can give it a shot.

 

“Cate” made a big legal boo-boo. She forgot that in State v. Moore, all those cited cases and the appeal apply to State v. Moore. They do not necessarily apply to State v. Arias.

 

Now let’s bring down all the questions from the top of this article and see if these cases have answered our questions:

  • Does it make sense that in Arizona, you can find someone guilty of BOTH Felony Murder (an unplanned murder) and Pre-meditated murder (a planned murder)?

Yes, it makes sense – in Arizona. You can find a defendant guilty of both premeditated murder AND felony murder. You can see that it’s a correct verdict in State v. Moore, because Moore was convicted of both 1st degree premeditated murder and felony murder of 2 victims.

 

So, to clarify, you can be found guilty under both theories of first degree murder IF, in the course of a dangerous felony, you commit pre-meditated murder. That’s the reality in Arizona.

This seems to be only in Arizona, as far as I know. It seems like this gives prosecutors two bites at the apple, though.

 

Arizona seems to like those second bites at the apple, as shown in their nifty little ‘if at first you don’t succeed (at the death penalty) try, try again’.

  • Does the Merger rule apply in Arizona? Can you be found guilty of felony murder based on a burglary with intent to commit murder?
  • Can Juan Martinez use an intent to assault or murder as the basis for the Felony burglary in State v. Arias?

 

If the felony merges with the murder, then any murder would be a felony murder and there would be no need to prove pre-meditation, deliberation, or an intent to kill.

This is the law in most states. This was the law in Arizona. But, Arizona didn’t like that too very much, so they do it their way.

 

Later Arizona cases implicitly rejected the broad language in Essman suggesting that the predicate felony must be “independent of the homicide.”

These next three cases reflect that rejection of Essman:

 

 It's complicated lg

 

Moore:  How can I be guilty of Felony Murder based on a burglary with the intent to commit pre-meditated murder?

Court: Because we find you committed burglary with the intent to commit assault. In the course of this felony, you caused the death of a person. Have a nice day.

 

Other states have held that a felony-murder conviction cannot be based on a burglary intended solely to murder the victim. Arizona don’t give a squid what them there other states do.

“We have already recognized that Arizona’s felony-murder statute identifies burglary based on assault as a valid predicate offense”.

 

Miniefield: It’s not felony murder because I intended to murder the victim

Court: Your intention to murder the victim is of no consequence for the purposes of felony murder. Your intention was to commit arson because you did commit arson. Whether you intended to kill or not, doesn’t matter in felony murder. You set the building on fire and someone died as a result, Jerk.

 

Miniefield: I did not intend to commit arson, my intent was to kill the victim.

Court: You lit the Molotov cocktail and you threw it at the house.  How was that not your intention, sir?

 

Dann:  How can it be Felony Murder if I enter the home in order to commit premeditated murder?

Court: We have proof you entered the home to commit an assault. Also, we have a separate felony charge

 

Felony murder can be predicated on a burglary that is based on the intent to murder.

The felony murder statute does not distinguish between burglaries defined by intent to commit assault versus intent to murder.

 

  • Does the felony murder charge correctly apply to the Arias case, or was the charge possibly kept solely to give the jurors another choice of 1st degree murder, (in a sort of heads I win, tails, you lose situation) for the prosecution?

curious george

I would not put it past a prosecutor who tries to bring in evidence of “animal cruelty and torture” based on a vague, 3rd party report of a too tightly squeezed cat. After that monkey business with the order of injuries, I wouldn’t trust him anyways, nohow.

  • Can you be found guilty of felony murder (A death occurs in the course of another dangerous felony) based on burglary with intent to commit the murder?

Under some circumstances, yes you can.

  • Is this a legitimate charge under the facts of State v. Arias?

No. They can charge whatever they want, but then you have to wonder if there is an ulterior motive.

  • Were the 7 jurors who found for felony murder correct or not?

Incorrect. (but, it’s complicated)

 

It's complicated lg

 

CONCLUSION:

In Arizona, Yes You Can:

  • Prosecutors can charge a defendant with BOTH 1st degree pre-meditated murder AND 1st degree felony murder of a single victim. (Guess what? You can charge a defendant with anything you want – but, then you have to prove it)
  • Jurors can find a defendant guilty of BOTH 1st degree pre-meditated murder AND 1st degree felony murder (The verdict form proves it and State v. Moore proves it) (A juror can make any decision allowed by the jury instructions).
  • Arizona’s felony murder statute recognizes assault as a valid predicate offense.
  • prosecutor_tsukichima_in_action_by_tsukichime-d5v3t03
  • In Arizona the Merger Rule doesn’t always apply. The felony can incorporate some parts of the murder.
  • In Arizona the felony predicate does not need to be independent of the homicide
  • In Arizona, felony murder can be predicated on a burglary that is based on the intent to murder.
  • In Arizona, burglary does not distinguish between an attempt to assault and an attempt to murder.

 

crown_prosecutor_marie_grills_addresses_the_weathe_85063054a4

So, are Juan Martinez and Judge Stephens correct that the felony murder charge is a viable extra 1st degree murder charge under the facts of the Jodi Arias case?

Has “Cate” decimated all the arguments we made in the Holy Grail article?

Do Nurmi and Gagic and Chen and Roman have it all wrong and are their arguments are no good?

 

Uh………no. They’re still good. Here’s why:

 

In State v. Arias,

There is insufficient evidence to support the finding of the predicate offense of burglary with intent to commit theft.

There is insufficient evidence to support the finding of the predicate offense of burglary with intent to commit assault.

 

Although the Essman ruling used to be the law, where the merger rule always applied and a predicate felony needed to be independent of the homicide, that’s no longer true, because of the decisions in the above cases

Later Arizona cases implicitly rejected the broad language in Essman suggesting that the predicate felony must be “independent of the homicide.” The key here is “the broad language” That does not mean that the Merger rule never applies or that felony predicates can always be the same as the elements of homicide.

 

The important thing is that each element needs to be proven beyond a reasonable doubt to the jury. This means that to find for pre-meditated murder or felony murder, each element of the charge needs to be proven according to the requirements of the two separate theories.

 

So let’s take another look at the chart from the Holy Grail article, and see if we can find Jodi Arias guilty of Felony murder under the facts of the case.

To find Arias guilty of 1st degree felony murder, we need:

  • A predicate felony (We are told it is 2nd degree burglary)
  • A death caused in the course of that felony.

 

Jury Instructions:

CHARGED OFFENSE – FELONY MURDER

As stated earlier, Count 1 also charges defendant with First Degree Felony Murder. The crime of First Degree Felony Murder requires the state to prove the following two things:

  1. The defendant committed or attempted to commit Burglary in the Second Degree; and
  2. In the course of and in furtherance of committing Burglary in the Second Degree, or immediate flight from it, the defendant caused the death of any person.

An “attempt” requires the state to prove that the defendant intentionally did something which, under the circumstances she believed them to be, was a step in a course of conduct planned to culminate in the commission of the offense. The crime of

Burglary in the Second Degree requires proof that the defendant:

  1. Entered or remained unlawfully in or on a residential structure; and
  2. Did so with the intent to commit any theft or felony therein.

 

#1 As far as the first part of burglary, I will accept Juan Martinez’ explanation for now that once Jodi Arias started stabbing Travis Alexander, he revoked his permission for her to be there, and she was now remaining unlawfully in the residence.

Many people believe Alexander was shot first. Then, let’s say that once Arias ‘began her assault’ on Travis, she was no longer welcome and she was now remaining unlawfully in the residence.

 

Problem: Wait a minute, Juan is assuming intent to assault or intent to kill – take your pick. We don’t know exactly what happened in that bathroom. Reporters still want to ask Arias that question.

Let’s ignore that for a moment and move on.

 

#2 Remained unlawfully in the residence with the intent to commit any theft or felony therein.

Juan Martinez gave us the theft of the gun as defining the burglary. If we believe Arias’ account of the crime

(No premeditation, she brought no weapons with her, A fight breaks out, Arias shot Alexander with his own gun in self-defense, he kept attacking, she finishes him off with a knife, she steals his gun).

 

I say “No pre-meditation”, because for felony murder, pre-meditated or not makes no difference. Only an intent to commit the dangerous felony matters. You cannot use your finding of premeditation as proof of intent in a felony murder.

So theft of the gun fails as defining the burglary right here. Why? Because, Juan Martinez did not PROVE WHEN the intent to take the gun was formed. The intent could have been formed AFTER the killing (and most likely was). This means that the death would not be caused “in the course of and in furtherance of the burglary”.

 

Do you understand?

A death has to be caused as a consequence of Arias trying to steal that gun. If she forms the intent to steal the gun after he’s already dead, then the death is not a consequence of the theft.

“Cate” made a remark that maybe Juan might have been being facetious about the gun. I thought of that also, but I hope not, because this is somewhat of a serious matter.

 

So the gun theft fails. Let’s move on to the assault.

Jodi Arias remained unlawfully in the home. She did so with the intent to commit assault upon Travis Alexander.

Problem: Where is Juan Martinez’ proof beyond a reasonable doubt of intent to assault? There isn’t any, because Nurmi was right, there is no other felony. There is no other felony because Juan Martinez failed to PROVE it.

 

Well, I believe she pre-meditated the killing, isn’t that intent?

  • No, because pre-meditated or not makes no difference. It cannot be an element of intent to assault, or intent to kill. That has to be proven separately. Well, that’s really bizarre. Yes, but law is very bizzare sometimes.

Well, there’s the crime scene and the stabbed and shot body. No one else was there. It had to be Arias. Isn’t that intent to commit assault?

  • No. Because Juan Martinez didn’t prove beyond a reasonable doubt that Arias intended to assault Alexander.

 

Well, what about all that case law above?

  • Right. Did you see the Judge say hey, Moore, You were convicted of both premeditated AND felony murder? You dispute the felony murder, but, you premeditated it, so there’s the intent. He didn’t say that.

Did you hear the judge say, hey, Moore, you see that dead body? That proves your intent. He didn’t say that either.

 

What the judge said was, it doesn’t matter what’s in your mind, we have evidence that you were heavily engaged in crack smoking throughout, that you got a gun, that you told your gf you “weren’t going to stand for it” and to come and find you if you didn’ return. You showed a friend the gun and asked him for hrlp to “get”the victim. You entered the home with a weapon. There’s an eye witness. That’s proof of intent to assault. And people died in the course of the assault. That’s felony murder.

 That kind of evidence does not exist in the Jodi Arias case.

In Minifield, it was proven that he took a Molotov cocktail, lit it, and threw it at the home. That’s proof of intent to commit arson. A little girl died. That’s felony murder.

 That kind of evidence does not exist in the Jodi Arias case.

In Dann, he claimed there was no other felony except the murder. The State charged an intent to kill, but later changed it to an intent to commit aggravated assault. Dann told the court he intended to kill the victim, not assault him, so there is no other felony.

The court replied that we have testimony that you borrowed a gun from your ex-gf, you tried to boorow another “untraceable gun” from a friend, you told your friend you intended to “straighten out the problem, you entered the home with the gun, you called your ex-gf and told he you just shot three people, and that’s proof of intent to assault. As a consequence, someone died. That’s felony murder.

 That kind of evidence does not exist in the Jodi Arias case.

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– Well, what if we forget about pre-meditation for now, and let’s say Jodi Arias was proven to be going to Alexander’s home after preparing for a nefarious purpose of some kind, isn’t that proof of intent to assault?

No. Because we don’t know when or where or if she formed the intent to assault, no proof.

– Well, it’s a reasonable assumption that Jodi brought a gun and/or knife to Mesa and into Travis’ home. Isn’t that proof of intent to assault?

No. There’s no proof that Jodi brought the gun or the knife to the crime scene.

In Moore and Dann, there was proof they were armed when they entered residences. Moore was also charged separately with a felony, so for the facts of his case, the merger rule doesn’t apply anyways.

 

Arias was charged with the felony predicate of 2nd degree burglary – assault. They used 2nd degree instead of 1st degree precisely because the state could not prove she brought a weapon into the house.

– Well, she said she did it. She said she did it all. So, if I don’t believe her self-defense story or that Travis attacked her, or if I believe she went way too far, then that proves her intent to assault, doesn’t it?

No, I don’t think so. I wouldn’t rely on her word about anything. I see the merger rule coming into play here, as there’s no distinct felony here, just like Nurmi said. I don’t see how there’s a clear intent to kill or assault, beyond a reasonable doubt.

 

She was an invited guest, they did interact and have a good time, she was there over 12 hours, then something happened, and I believe there will always be some doubt there as far as what exactly happened. Apparently, it wasn’t very clear to 5 of the jurors.

Now, I believe the only way that felony murder makes any sense at all in this case is if the gunshot was first. Think about this: She shoots him in the shower, as part of a plan to kill him, only he doesn’t die. Jodi Arias doesn’t leave the residence, and she doesn’t call for an ambulance or for help. At this point, she’s remaining in the residence unlawfully. It’s burglary – assault. Jodi Arias then picks up a knife and finishes him off.

 

Here I would say this is a clear burglary – assault, and in the course of and furtherance of this felony, she caused the death of Alexander. The other way, it’s not so clear at all. Maybe Juan Martinez wanted it that way.

That’s another reason why the change in the order of injuries by the prosecution is problematic. The felony murder charge certainly fits much better with the gunshot first murder theory. I believe that when the prosecution changed the order of injuries to gunshot last, they forgot that this new theory doesn’t fit felony murder. I believe that later, they stubbornly refused to drop the charge, for fear it would draw attention to the fact that they swcithed the order of injuries intentionally to squash Jodi Arias’ self-defense claim.

 

– Well, what is your reasoning for felony murder not working the other way, with the stabbings first?

I see a merger rule problem with that theory. I just don’t see clear proof of intent either to kill or assault, to make this strictly a felony murder.

 

“Cate” said something to the effect of, well, if the felony murder charge really didn’t make sense, why weren’t the legal minds in the major media discussing it? This is her type of street logic that I just don’t get, using something that didn’t happen to prove that something else did.

Remember the saying – “Evidence of absence is not absence of evidence.”

You drive me crazy that way, Cate, I have to admit.

 

Maybe they weren’t discussing it because the prosecution was pushing pre-meditation, or because pre-meditation elements and the lesser included offenses that go with it are more interesting to talk about. Or maybe the viewers weren’t asking about it. Who knows?

If Arias was found unanimously guilty of felony murder 1 instead of premeditated murder 1, maybe they would have talked about it then.

Who are these legal experts she’s talking about, anyways? Dershowitz? Beth Karas? Vinnie Politan? – Please!

 

Is there a quote or an article or a video from anyone about how the felony murder charge is correct?

I couldn’t find any major media Legal Eagles speaking on the soundness of the charge, but I did find one legal commentator who said what Nurmi said – that there was nothing there. Does the name Monica Lindstrom ring a bell?

 

This case is not the same as the other cases cited above. This is the only case of the above in which I see no clear felony outside of the murder, despite the Arizona way of not always using the merger rule and sometimes allowing the felony to incorporate certain parts of the murder, which certainly seems to favor the prosecution.

  • Why was the prosecution so reluctant to explain to the defense exactly what their felony murder theory was in this case?
  • Why was there was a lot of contention in motions in 2010, before Nurmi took over the case about this exact question?
  • Why did the prosecution argue for pre-meditation all day every day and then spend just 5 minutes arguing felony murder?
  • Why didn’t the prosecution specify the exact felony (assault, murder, theft, etc.) defining the burglary, even in the jury instructions? Other cases do.
  • Why was the prosecution intentionally ambiguous about it, and why did they spend so little time explaining it?

That’s just more than a little fishy when the felony murder is obviously not as clear-cut and much harder to understand.

 

Maybe Nurmi was right: “(This) is either a premeditated murder or it’s not, and the felony murder burglary charge is just an “empty vessel” in order to seek a first degree murder conviction”. 

 

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It certainly seems that felony murder charge was left there more to ensure a first degree murder conviction than because the prosecution honestly believed it was a legitimate charge.

Good job rejecting it, jurors!

 

  • Again, the predicate felony = remaining unlawfully in the home (via killing Alexander) with the intent of committing any further felony (killing Alexander) and the murder part of the felony murder is (killing Alexander).

circular_logic_by_mestafais-d5vm1d1

 

  • Even in Arizona, and even considering all the cited cases above, “Felony-murder still cannot be charged if all the elements of the felony are included in the elements of the murder”. This is the merger doctrine in Arizona. 

 

  • The gun theft fails, timing of the intent to steal the gun – not proven – therefore no burglary, therefore no felony murder.

 

  • The assault fails – no clear and convincing of proof of an intent to assault, therefore no burglary, therefore no felony murder.

 

  • Remaining unlawfully in the home. No clear proof of intent to assault – therefore no proof of revocation of consent to be in the home, therefore no burglary, therefore no felony murder.

 

The charge should have been dropped.

We invite any legal expert, especially those who practice criminal law in Arizona to explain to us why the felony murder charge in the Jodi Arias case makes any sense at all.

Monica Lindstrom Legal Commentator After the prosecution rested in the Arias Trial guilt phase: “I think the Court has every reason now to kick that felony murder count or alternate theory out, because there’s nothing that I’ve seen, and I don’t think anybody else has seen anything that will go to that.”
Monica Lindstrom Legal Commentator After the prosecution rested in the Arias Trial guilt phase:
“I think the Court has every reason now to kick that felony murder count or alternate theory out, because there’s nothing that I’ve seen, and I don’t think anybody else has seen anything that will go to that.”

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