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Mesa Police Department provided Mr. Dworkin with a hard drive of the victims
computer created on December 12, 2009. The Court has no basis to find the Mesa
Police Department withheld evidence or refused to provide a copy of any evidence to
Mr. Dworkin. To the contrary, a mirror image of the victims computer was given to
Mr. Dworkin. As he testified at the trial, the focus of the defense at that time was not
on the *advertiser censored* contained on the victims computer. Rather, the focus was on the
timeline of events that occurred on June 4, 2008. Mr. Dworkin was able to testify
about those matters at the guilt phase trial. During cross-examination at the guilt
phase trial, Mr. Dworkin testified he had been interviewed by the prosecutor about
the *advertiser censored* on the victims computer but it had been two years earlier and he
could not recall specific details or what he had stated during that interview. Exhibit
9 from the evidentiary hearing conducted on December 4, 2014, the Chain of Custody
log maintained by the Mesa Police Department, shows that Detective Melendez and
Detective Rios removed the computer from the evidence room on June 11, 2008,
stating the evidence was out for investigation. Defense counsel and their expert
witnesses received a copy of this log. Mr. Dworkin discussed protocols he followed
for examining hard drives. As a computer forensic expert, he would have been aware
that it is routine for law enforcement to make a mirror image of the hard drive.
Detective Melendez was interviewed by defense counsel prior to trial and testified at
the guilt phase trial and the penalty phase retrial. He was examined about his review
of the laptop computer hard drive. There is no evidence he intentionally hid the
existence of the June 11, 2008 mirror image or failed to provide a copy of the mirror
image created in June 2008. According to the defense expert, John Smith, the content
on the original hard drive (the source evidence) and all mirror images is the same
with regard to the pornographic data sites to which Mr. Smith testified. In fact, the
source evidence and June 11, 2008 mirror image are the same.
Defendant argues that failure to provide the June 11, 2008 mirror image could have
affected the jurys verdict in the guilt phase trial because the State argued during
closing argument that there was no corroboration for the defendants claim that she
saw the victim viewing child *advertiser censored* on his laptop computer. That issue is not
properly before this Court. However, Mr. Dworkin testified at the guilt phase trial he
had seen *advertiser censored* on the laptop. Thus the defendant had the opportunity to
pursue the issue during the guilt phase trial. The defendant has an expert witness who
testified at the penalty phase retrial about the *advertiser censored* links he found on the
victims computer. The State may present evidence disputing the findings of that
expert. However, the penalty phase retrial jury will have the benefit of the testimony
about the contents found on the victims computer hard drive in evaluating the SUPERIOR COURT OF ARIZONA
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defendants testimony about what she says she observed the victim doing on January
21, 2008 as well as the testimony of the defendants expert witnesses.
The original laptop computer and hard drive were disclosed by the State and available
for analysis by defense expert witnesses. The evidence at issue was on the source
evidence (the original hard drive) and mirror images created from the source
evidence. The penalty phase retrial is ongoing. If the defense expert finds additional
evidence after further review of the 2008 mirror image, he can be recalled as a
witness. Dismissal of the notice of intent to seek the death penalty is not an
appropriate sanction for a discovery violation of this nature. The Court finds no
ground for dismissal of the indictment or the Notice of the Intent to Seek the Death
Penalty based upon this claim.
6. Social media postings by the case agents wife prejudiced the defendant. Defendant
alleges the case agent, Detective Flores, provided non-public details about the case to
his wife who tweeted her opinions on social media. In addition, Detective Flores
wife supposedly posted a video on You Tube which Defendant Arias describes as a
mock movie trailer about the case. Defendant also provided copies of other social
media exchanges in which the parties discussed trial matters including a claim that
the defendant had a buddy write for her in prison to create evidence for her story.
See attachments to Motion to Dismiss States Notice of Intent to Seek the Death
Penalty Due to Continued State Misconduct, Supplement #1 filed October 24, 2014.
No testimony was provided at the evidentiary hearing regarding these claims.
Defendant relies on the attachments to her motion filed on October 1, 2014 as support
for her allegations. The Court has reviewed those attachments.
The Court finds the defendant has failed to establish that Detective Flores provided
information to his wife about the case that was not public information. The
attachments to the motion indicate Ms. Flores stated there was much condemning
evidence and situations that most ppl (sic) never heard by watching the trial,
discusses the dismissal of a juror, and discusses a court assistant who allegedly made
a derogatory statement about the prosecutor. The Court previously made a record
about the matter involving the court assistant. The statement supposedly occurred in
the courtroom, not a sealed proceeding. The court assistant denied making the
statement. Whether there is any truth to the other statements purportedly made by the
detectives wife in her posts is unclear. The Court does not take lightly the allegation
that Detective Flores provided non-public information to his wife about the case.
Detective Flores has testified numerous times about a variety of issues related to this
case. Defense counsel has not questioned him about these matters or provided any
other evidence that would permit this Court to find he violated any court orders. SUPERIOR COURT OF ARIZONA
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Additionally, some of the information referenced in the attachments may have been
discussed in open court and thus there was no violation. There have been numerous
court hearings on this case, including hearings in chambers and sealed hearings. This
Court cannot recall all of the details of those hearings. Without transcripts or
testimony by individuals present at those hearings, this Court has insufficient
information to find a violation of the courts orders.
The Court is unaware of any legal reason the detectives wife should be restricted
from providing her opinion or commenting about the case on social media. Even if
the court had evidence that Detective Flores had discussed matters from a sealed
proceeding with his wife, Defendant has failed to show that it affected her case in any
way. The penalty phase retrial jurors were questioned about any prior knowledge of
the case including information obtained through the media. None of the jurors
indicated any knowledge about these social media exchanges. Defendant does not
allege how her case was prejudiced by these incidents. The Court finds no ground for
dismissal of the indictment or the Notice of the Intent to Seek the Death Penalty
based upon this claim.
7. Detective Flores allegedly commented or provided information to the press about the
dismissal of a juror. No testimony was provided at the evidentiary hearing about this
claim. Exhibit G to the defendants motion filed on October 1, 2014 contains a social
media message allegedly from the detectives wife referencing a conversation with a
juror that occurred in chambers. It is unknown how the information was provided to
Ms. Flores. Defendant presumes the information came from the detective. Defendant
does not allege how her case was affected by the social media statement. Even if the
detective had discussed a sealed matter with his wife, Defendant has not shown that
her case was affected in any way. The jurors empanelled for the penalty phase retrial
were questioned about any knowledge about the case and none of them referenced
any knowledge of this incident. Based upon the information provided, the Court
finds no ground for dismissal of the indictment or the Notice of the Intent to Seek the
Death Penalty based upon this claim.
8. The Maricopa County Sheriff made harassing comments about the defendant to the
media. Defendant claims the Maricopa County Sheriff responded to media inquiries
about a pleading allegedly filed by the defendant and those responses were intended
to harass the defendant. A document was filed with the federal court alleging
violations of law relating to Defendant Arias. The document, purportedly filed by or
on behalf of the defendant, alleged various ways Defendant Arias had been
improperly treated while in custody. The media apparently contacted the Maricopa
County Sheriff seeking his response to the allegations. The sheriff denied the SUPERIOR COURT OF ARIZONA
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allegations in the document. It is unclear whether the sheriff viewed any document
prior to speaking with the media. However, the sheriff told the media that inmates
are not required to state the pledge of allegiance in order to receive meals. The
sheriff also stated he had no knowledge of a Hepatitis C infection at the jail. He
denied that the defendant was videotaped while in the restroom and that he or his staff
had intercepted letters from or to the defendant and provided them to the media. The
sheriff also denied the allegation that the defendant was denied medical treatment
while in the jail.
Defendant now asserts she was harassed by the sheriffs comments. This situation
occurred after the first trial and before the penalty phase retrial began. Defendant
does not suggest that any information provided by the sheriff was inaccurate or
misleading. During jury selection, the potential jurors for the penalty phase retrial
were questioned about their knowledge of the case and any media coverage of the
case. The defendant had an opportunity to question each potential juror about this
incident. Knowledge of this incident was not reported by any of the jurors selected
for the penalty phase retrial. Defendant has not shown any prejudice to her case from
this incident. The Court finds no ground for dismissal of the indictment or the Notice
of the Intent to Seek the Death Penalty based upon this claim.
9. Detective Flores awakened the victims computer from sleep mode on June 10,
2008 resulting in the destruction of potential evidence. Defendant alleges that
Detective Flores actions in waking the computer from sleep mode at the crime scene
caused changes to the hard drive of the victims computer, destroyed potential
evidence, and violated the written policy of the Mesa Police Department regarding
handling seized computers. See paragraph 5 above. The State is required to disclose
any exculpatory evidence that is favorable to the defendant and which may create a
reasonable doubt in jurors minds regarding the defendants guilt. See Strickler v.
Greene, 527 U.S. 263, 281 (1999); State v. Montano, 204 Ariz. 413, 424, 65 P.3d 61,
72 (2003), Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S.
150 (1972). Failure to adhere to this requirement whether willfully or inadvertently
by suppressing favorable evidence violates a defendants due process rights. See
Brady, 373 U.S. at 86 and Giglio, 405 U.S. at 155. Based upon the testimony
provided at the evidentiary hearing, the Court finds the defendant failed to establish
that any exculpatory evidence was withheld or intentionally destroyed by the State
when Detective Flores awakened the victims computer from sleep mode at the scene
of the crime. Detective Smith testified at the evidentiary hearing that changes to files
made when a computer is brought out of sleep mode may go to unallocated space on
the computer. Some files may be over-written. In this case, the State made a mirror
image of the victims computer the day after it was seized and again in December SUPERIOR COURT OF ARIZONA
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2009. A copy of the mirror images has been provided to the defendant. At the
penalty phase retrial, John Smith testified that the victims computer contained
numerous anti-virus programs that regularly erased files from the victims computer.
The relevance of the victims computer at the penalty phase retrial, according to the
defendant, is to corroborate the defendants claim that she saw the victim viewing
*advertiser censored* in January 2008. Mr. Smith was able to locate such links on data sites
found on the victims computer.
There is no evidence establishing relevant, material data was deleted from the
victims computer or that material evidence was destroyed. Some files may have
been updated and/or over-written. (Computer files for I-tunes and Southwest Airlines
were used as examples at the evidentiary hearing. Mr. Smith testified that the
overwritten files were operating files). Defendant failed to show how she was
prejudiced by the computer updating these files. As discussed above, at the guilt
phase trial, the testimony elicited by the defendant related to the events of June 4,
2008. The computer contained the information necessary to establish those facts. The
parties are still in the process of analyzing the mirror image of the victims hard drive
made on June 11, 2008. Defendant has already presented such evidence to this
penalty phase retrial jury. Regarding the effect on the guilt phase trial, that issue is
not appropriately before the court at this time.
Regarding the violation of Mesa Police Department Policy, Detective Flores and
Detective Smith testified that it was not a violation of policy for Detective Flores to
awaken the computer at the crime scene. However, Detective Smith acknowledged
the better practice would have been to remove the power source since cache files can
be deleted when a computer is awakened from sleep mode. See testimony of
Detective Perry Smith, December 11, 2014. Detective Flores testified on January 12,
2015 that it was common practice in 2008 for police seizing a computer to awaken it
from sleep mode. He was unaware that doing so could result in the modification of
files on the computer. Even if there was a violation of Mesa Police Department
policy, dismissal of the charges is not the appropriate sanction under the
circumstances of this case. The Court finds no ground for dismissal of the indictment
or the Notice of the Intent to Seek the Death Penalty based upon these claims.
10. Evidence was possibly destroyed when the victims computer was accessed on June
19, 2009. Detective Flores and the prosecutor were present when former defense
counsel for the defendant viewed the victims computer on June 19, 2009. Turning
on the computer at that time changed the hard drive on the victims computer. The
Mesa Police Department made a mirror image of the victims computer on June 11,
2008, the day after the victims computer was seized. Any changes that were made to SUPERIOR COURT OF ARIZONA
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the hard drive as a result of turning on the computer without a write blocker on June
19, 2009 will not affect the content of the mirror image created on June 11, 2008.
The Court finds no ground for dismissal of the indictment or the Notice of the Intent
to Seek the Death Penalty based upon this claim.
11. Prior attorneys for the defendant were ineffective. Defendant claims her former
attorneys were ineffective on June 19, 2009 when they permitted the victims
computer to be turned on without proper precautions being taken to preserve evidence
on that computer. As noted in paragraphs 5 and 10 above, a mirror image of the
victims computer hard drive was made on June 11, 2008. Any error that occurred
because defense counsel accessed the computer on June 19, 2009 was harmless since
the information on the victims computer was preserved on that mirror image. The
defendant has not established any prejudice to her case. The Court finds no ground
for dismissal of the indictment or the Notice of the Intent to Seek the Death Penalty
based upon this claim.
12. Detective Melendez testified at trial and the penalty phase retrial that he found no
*advertiser censored* or viruses on the victims computer. Detective Melendez testified at the
guilt phase trial on April 23, 2013 that he examined the internet history on the
victims computer and found no adult sites. He testified he looked at the computer
files and found no images of children. At the penalty phase retrial, Detective
Melendez testified he found no *advertiser censored* or viruses on the victims computer.
The defendant has one or more expert witnesses who analyzed the mirror image of
the hard drive to the victims laptop computer. Lonnie Dworkin examined the hard
drive to the victims laptop computer and testified on behalf of the defendant at the
guilt phase trial. See paragraph 5 above. John Smith testified at the penalty phase
retrial that there were *advertiser censored* links found on data sites. In addition, he found
viruses or malware on the victims computer.
Detective Melendez was subject to cross-examination at all proceedings at which he
testified and can be recalled by the defense at the penalty phase retrial. Defendant
could have called witnesses to dispute his findings at the guilt phase trial. The
defendant presented evidence to the penalty phase retrial jury on this issue. It is the
role of the jury to resolve any factual disputes, evaluate the credibility of witnesses
and determine the significance of the evidence. The Court finds no ground for
dismissal of the indictment or the Notice of Intent to Seek the Death Penalty based
upon this claim.
13. Comments by the prosecutor during a bench conference were insulting and
unprofessional. Defendant alleges the prosecutor made a comment to Defense SUPERIOR COURT OF ARIZONA
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Counsel during a bench conference that was insulting and unprofessional. After the
verdicts were returned from the first trial, bench conferences were unsealed and
information from those bench conferences was publicized by the media. The specific
comment by the prosecutor was publicized.
During the trial, the Court addressed this matter with counsel. The prosecutor
apologized to Defense Counsel. The prosecutor was quick to acknowledge his error
and regret. Nothing inappropriate was said before the jury and there is no basis to
find the prosecutors comments affected the guilt phase verdict. The Court found no
other sanction was appropriate under the circumstances. The penalty phase jurors
were questioned about their knowledge of the case and the media coverage. No juror
indicated any knowledge about this incident. The Court finds no ground for dismissal
of the indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.
14. The prosecutor harassed a defense witness. Defendant alleges the prosecutor
harassed an expert witness at the guilt phase trial by suggesting the witness had
inappropriate feelings toward the defendant. This matter was addressed during the
guilt phase trial. The State suggested an expert witness for the defendant had
developed personal feelings toward the defendant and lost his professional
objectivity. The prosecutor referred to a gift the witness gave to the defendant and
the number of visits (12) the witness made to see her as the basis for his questions.
See cross-examination of Dr. Samuels on March 18, 2013. A party is entitled to
explore the bias, credibility and motive of witnesses. The prosecutor zealously crossexamined
the defense expert on these matters. Defense Counsel questioned the
witness about these issues on re-direct examination. The Court finds no basis to
conclude there was prosecutorial misconduct. The Court finds no ground for
dismissal of the indictment or the Notice of the Intent to Seek the Death Penalty
based upon this claim.
15. The prosecutor signed an autograph in front of the courthouse. Defendant claims the
prosecutors action in signing the autograph prior to the jury returning with a verdict
during the guilt phase trial was misconduct. This matter was address by the Court
during the guilt phase trial. The prosecutor stated he walked outside the courthouse
and was unexpectedly confronted by someone who asked for an autograph. He was
surprised and complied without thinking about the significance. A photographer
captured the incident and it was published. The prosecutor stated he was no longer
using public entrances to the courthouse to avoid the situation recurring. While it was
a lapse of judgment for the prosecutor to provide an autograph under those
circumstances, there was no evidence this incident affected the verdict. The jurors in SUPERIOR COURT OF ARIZONA
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the guilt phase trial were questioned regularly about media coverage of the trial. No
juror acknowledged seeing or hearing anything about the incident.
The Court finds the defendant failed to demonstrate that the prosecutors misconduct
so infected the trial with unfairness as to make the resulting conviction a denial of due
process (State v. Edmisten, 220 Ariz. 517, 524) or that the misconduct was so
egregious that it raises concerns over the integrity and fundamental fairness of the
trial (State v. Minnitt, 203 Ariz. 431, 438). The Court finds no ground for dismissal of
the indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.
16. Reluctance of witnesses to testify at penalty phase retrial. Defendant claims that
potential defense witnesses have refused to participate in the penalty phase retrial
because they fear the prosecutor may make improper personal attacks in court and
inspire others to attack them outside court. See page 19, defendants October 1,
2014 Motion to Dismiss. A party has the right to challenge the credibility, bias and
motive of a witness unless the court determines the probative value of the evidence is
outweighed by the danger of unfair prejudice or will confuse the issues. See Rule
403, Arizona Rules of Evidence. If the challenge is objectionable, the opposing party
has the right to object and the court will rule. In this case, the prosecutor has
zealously cross-examined the witnesses. The courtroom is open to the public. The
court cannot control what the public and media report about what they observe in the
courtroom. The Court has stated the defendant may request accommodations be
made for witnesses who have concerns about testifying in this case. The Court has
indicated it is willing to consider creative ways to protect the privacy interests of
potential witnesses. For example, the Court has previously permitted the defendants
expert witnesses to refer to individuals by their relationship to the defendant without
using proper names. If a witness is unwilling to testify voluntarily, the defendant
may subpoena that witness to testify to assure the jury has the benefit of the
testimony. Alternatively, that testimony could be provided through an affidavit,
videotaped statement or the testimony of the mitigation specialist or another witness.
See paragraph 1 above. The Court finds no ground for dismissal of the indictment
or the Notice of the Intent to Seek the Death Penalty based upon this claim.
17. The cumulative effect of the prosecutorial misconduct resulted in an unfair trial.
Defendant alleges that the cumulative effective of the prosecutors misconduct has
created an atmosphere in which the defendant cannot receive a fair trial in the penalty
phase retrial thus requiring dismissal of the charges and/or dismissal of the Notice of
Intent to Seek the Death Penalty. The defendant has filed numerous motions to SUPERIOR COURT OF ARIZONA
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dismiss and made numerous motions for mistrial in this case. Many of those motions
alleged prosecutorial misconduct. The Court ruled on each motion. None of the
motions were granted. Since none of the motions were granted, the cumulative effect
of those allegations does not require dismissal of the charges or the Notice of Intent to
Seek the Death Penalty. This was a long trial, covered by the media from gavel to
gavel. Every action of the defendant, the attorneys, the victim family members, the
witnesses, the court, and court staff were subjected to intense and constant scrutiny.
There may have been errors made, but those errors were not so egregious that they
create concerns about the integrity or fundamental fairness of the trial. See State v.
Minnitt, 203 Ariz. 431, 438, 55 P.3d774 (2002); Pool v. Superior Court, 139 Ariz. 98,
105, 677 P.2d 261, 268 (1984). The Court finds no ground for dismissal of the
indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.
IT IS ORDERED denying the defendants Motion to Dismiss States Notice of Intent to
Seek the Death Penalty Due to Continued Misconduct filed October 1, 2014, the defendants
Motion to Dismiss the States Notice of Intent to Seek the Death Penalty Due to Defendants
Inability to Present a Complete Case for Life filed September 26, 2014, the defendants Motion
to Dismiss States Notice of Intent to Seek the Death Penalty Due to Continue State Misconduct
Supplement #1 filed October 24, 2014, the defendants Motion to Dismiss All Charges with
Prejudice and/or in the Alternative to Dismiss the States Notice of Intent to Seek the Death
Penalty due to Recently Discovered Purposeful and Egregious Prosecutorial Misconduct filed on
November 10, 2014, the Defendants Motion for Reconsideration: Motion to Dismiss States
Notice of Intent to Seek the Death Penalty Due to Defendants Inability to Present a Complete
Case for Life filed November 26, 2014, and the Defendants Supplemental Motion to Dismiss all
Charges with Prejudice and/or in the Alternative to Dismiss the States Notice of Intent to Seek
the Death Penalty Due to Recently Discovered Purposeful and Egregious Prosecutorial
Misconduct filed December 14, 2014.
IT IS FURTHER ORDERED denying the States Motion for Sanctions (Compaq
Presario Computer) filed November 16, 2014 and the States Motion to Strike (Compaq Presario
Computer) filed November 18, 2014.
http://www.courtminutes.maricopa.gov/docs/Criminal/012015/m6653386.pdf