REPORTED BY: MARLA F. ARNOLD CR, RPR
Certified Court Reporter #50870
arnoldm002@superiorcourt.maricopa.gov
A P P E A R A N C E S
FOR THE STATE:
BY: Mr. Juan Martinez
Deputy County Attorney
FOR THE DEFENDANT:
BY: Mr. Kirk Nurmi and Ms. Jenni fer Willmott
Attorneys for the Defendant
THE COURT: Well, not to be filmed by the cameras; but to seal the proceedings, that means that I need to clear the courtroom. The request is to seal pending the verdict, correct? After the verdict, there would be no need--there would be there will be an FTR and record made of the testimony. It is not available until after the verdicts come in except to the parties if requested. So that ' s --
MR. MARTI NEZ: I think what they are asking is that you clear the courtroom of all people, and I don't think that they have met the criteri a to seal--THE COURT: I need to pull out my sheet on this to see what the criteria is.
MS. WILLMOTT: It was also listed in the minute entry with regard to the media and our ability to ask for that for our witnesses.
THE COURT: But I have to make sure that thi s request meets some requirements. So we are going to take a recess.
MR. NURMI: 122, is that the Court 's concern?
THE COURT: No. There is another test that I have to--I have to pull it up. bit?
MR. NURMI: Okay.
MR. MARTINEZ: We will take a break for a little
THE COURT: We will take a couple minute break so I can go upstairs and do that.
(Whereupon, bench conference concludes. )
(Whereupon, a short break was had.)
THE COURT: Counsel, please approach.
(Whereupon, a bench conference is held on the record: )
THE COURT: Okay. We will make a record. Your request to seal--you are asking that the cameras be turned off in the courtroom and the courtroom closed during her testimony?
MS. WILLMOTT: That's correct.
THE COURT: And the reason--the reason for the request?
MS. WILLMOTT: The reason for that, Judge, is she feels it will affect her ability to testify, nervousness factor. looking out into the crowd. In particular she also has described the amount of mail she gets in a week due to the publicity that surrounds her during trial. A lot of it is hate mail. Some of it 1s support mail. They all she has been threatened that if she says certain things, it will come down on her even if--I understand she is in jail. I don't know how these people will get to her. It affects her ability to think and the ability for her to say things she truly means versus what people have said and threatened her. We know the people here today currently in the courtroom include some of the people that send her that mail. That's why we are asking--that's why we are asking to seal the courtroom and not allow anybody in except the vi ctims.
THE COURT: If there is somebody in particular that we know that is in the courtroom that is harassing her or has harassed her in the past if you can identify tha t person, we can ask to have that person escorted out if there is a specific person.
MS. WILLMOTT: There is nobody specific that I'm aware of. It is the knowledge of the fact that people come in for her and then send her threatening postcards.
MR. NURMI: Judge, I think if I might--I think the other issue that Miss Willmott needs to address is if I think in any way Miss Arias' ability to testify fully and fully actualize her mitigation due to the presence of others, I think the Court should be concerned about it as they--as a preclusion of mitigation because mi tigating factors as remorse of the relationship--mitigating factors 3, 5, 6, and 9 in particular would be dampened by the public presence.
Now, whether we can say that should be the case or not, obviously I cannot say; but at the same time in terms of Miss Arias, her psychological makeup, we know she has been diagnosed with PTSD and we also know she has been diagnosed with Borderline Personality Disorder. If her psychological makeup is such that she cannot fully actualize her mitigation, then I think we have problems under Skipper versus South Carol ina. I think the Court should be cognizant of that. I think we cited in our original motion to preclude the matter Smith v. Texas and Estes v. Texas about the fact that the rights of the Defendant trump the rights of the media and open courtrooms are not--certainly not absolute but also based on all the other authorities I have cited in the motion too previously--those are the most prominent ones that come to mind. heard?
THE COURT: Mr. Martinez, did you want to be
MR. MARTINEZ: Yes. It appears that the reasons given to you for sealing the courtroom from the public is that the Defendant is nervous. That's what it all comes down to, whether it i s contributed to PTSD or whether it is the fact that she is Tweeting or sending out stuff and people react to it. It comes down to the fact that she is nervous. There is nothing that any case law--that I 'm aware of--indicates that the Defendant has such a right or witness has such a right to testify in sealed proceedings just because they are nervous. The only case I can think of off the top of my head where the proceedings were sealed was in Tucson and involved some gang members. I don't remember the name of it. In that case the conviction was reversed because the Court didn ' t follow--I don't know exactly--again, but the import that I took from that case is that there has to be a compelling reason to deny the public the right to be there. It is not an issue of the media here. It is an issue of the public.
Certainly if the request is made and you make that determination, you can certainly indicate to the media that they cannot take pictures or do that sort of thing, but this is much more broad than that. This is excluding the public; and that if we do that, I think well, it is my belief if we do that just because the Defendant is nervous, that this would be overturned on appeal.
MS. WILLMOTT: It is far more than just the fact that she is nervous. It is. Really. Anybody would be nervous taking the stand. It has much more to do with the fact that she is not able to fully communicate what she wants to say, communicate her remorse and go through all the mitigating factors and get them out there in front of the jury with having the public here given all the information she has received in the jail through the postcards, the different threats she received. She feels it will impact her ability to say what she really needs--state her needs on the stand.
MR. NURMI: To my recollection, the case he is referring to is that the Defendant it was kicked out. The Defendant challenged it. Here in this case the Defendant is making the request. I think when we are talking about the heightened level of due process--when we talk about cases like Furman versus Georgia and Gregg versus Georgia, the heightened process of Miss Arias, the rights of the public versus someone whose life is at stake, the balance of the case law is pretty clear that it favors Miss Arias.
THE COURT: Is it the actual physical presence of the people in the gallery that is of concern because the victim family--the victim ' s family will be permitted to rema.i n.
MS. WILLMOTT: Right.
THE COURT: I assume she wants her own family to remain?
MS. WILLMOTT: Yes.
THE COURT: Who is she concerned about in the gallery that
MS. WILLMOTT: Obviously she knows that the victim's family will be here and her family. But no, it is the public in general.
THE COURT: And it is the presence in the back of the courtroom?
MS. WILLMOTT: Well, the presence and the fact that they have the ability to walk away with the information that she is going to say.
THE COURT: Okay. Well, there are four factors that the Court must consider before closing court proceedings. The parties seeking to close a hearing must advance an overriding interest that is likely to be prejudice if the proceeding is not closed. That is number one. So with regard to that, I do find that the Defendant is indicating that she will feel intimidated, and it will affect her ability to communicate with the J ury matters she thinks are significant in terms of mitigation. Number two, closure must be no broader than necessary to protect that interest. With regard to that, the Court finds that the victim family members wi l l be allowed to remain in the courtroom. The Defendant's family members will be allowed to remain in the courtroom. We do have an overflow room downstairs. I don't believe it is appropriate to completely close this proceeding. However, I believe asking the individuals seated in the courtroom--the members of the public and the press--to go downstairs and watch the proceedings in that venue would address the Defendant's concern that she is feeling intimidated and she feels somehow limited in her amount to communicate to the jury because of their presence in the courtroom.
MS. WILLMOTT: Did you say the members of the press and the public?
THE COURT: Yes, and with regard to the camera and the still camera and the video camera, I'm· going to order that they be turned off; but as I previously said, this proceeding is being recorded by FTR proceedings; and those recordings will be available to the public after the Jury does reach a verdict.
The third factor is the trial Court has considered reasonable alternatives to closing the proceedings. which I feel I have just done with regard to the proposal I made regarding how we should handle the presence of the public and the media in the courtroom, and the trial Court must make findings to support the closure; and I believe I have done that here in this hearing.
MS. WILLMOTT: I will have to inform Miss Arias obviously of your ruling. I believe she will refuse to testify.
MR. MARTINEZ: I'm sorry. I didn't hear you.
MS. WILLMOTT: I believe she is going to refuse to testify.
THE COURT: She is going to refuse to testify knowing that there are people downstairs who will hear what she is saying?
MS. WILLMOTT: The media in particular but, yes, the people as well.
THE COURT: I thought the concern was she felt intimidated by their presence in the courtroom?
MS. WILLMOTT: Yes, that is a concern obviously; but it is not just the fact that they are here. It is the fact that they walk away with the information she is saying and the media Tweets it all over the place, and it becomes blogged; and it becomes on the TV shows tonight ; and she feels t hat knowing these things--the threats that she has received in jail, the postcards, letters she feels those will become more voluminous and that ultimately affects her ability to get--to testify to be able to say what she wants to say.
MR. MARTINEZ: What if we seal the proceedings that get reported? Obviously the State is not reporting it. How is there a link between whatever correspondence she is receiving and keeping the media out of the media room downstairs? The point is this: They will report whatever they will report; and they will say you know, sealed proceedings, that isn't goi ng to stop the mail. That has no relation to that. So her concern is still going to be there is my point. There is no way that the measures that the Court is taking beyond what you have already indicated are even related to the Defendant's concern.
MS. WILLMOTT: I completely disagree with that. The way it is related is the fact that by allowing media to view or hear what is happening, they are Tweeting every single word out. They are blogging about it, and it makes their shows at night. That's how people ultimately get that information, and then get the information and they send threats and it comes that way. I can advise the Court the simple fact that the media--that it is not being--things have lessened because we don't have live coverage. However, I'm still receiving letters, e-mails because of that Tweeting because this is still public.
This is something that deeply affects Miss Arias and her ability to testify, her ability to be truly--to have her true feelings come forward, and I'm concerned that it will ultimately affect her ability to present her mitigation.
THE COURT: Well, the content of these proceedings will at some point become public, whether it is now, 2 weeks, 2 months, 3 months. It will become public and there will be those individuals who wish to respond and send her mail. She can always choose not to open it. She can choose to ask all of her mail be destroyed. I can ' t make a decision based upon her concern that she may receive mail in the future in response to something she said in these proceedings. I do believe that there is a legitimate concern that she may feel intimidated by the presence of those in the courtroom because she is going to be talking about obviously very sensitive matters. So I do believe it would be appropriate to have the public and the media view the proceedings from the lower floor. For that reason, I will proceed in that fashion with regard to the testimony of Miss Arias. You can talk to her and let me know if that's going to be an issue before I tell everyone to leave the courtroom.
MS. WILLMOTT: Yes, please if I could.
(Whereupon, bench conference concludes.)
(Whereupon, a brief pause was had.)
(Whereupon, a bench conference is held on the record: )
MS. WILLMOTT: I spoke to her, Judge, and she does not want to testify. She told--she wants the Court to understand that there has been specifically death threats already made to her that--that have to do with depending on what she says and what she does. She feels this will ultimately affect her ability to be honest on the stand--not her honesty, but being able to relay what she wants on the stand. I can inform the Court that yesterday I was informed by MCSO that there is a specific person who was attempting to visit her. MC SO refused to let him in. They determined that he was crazy. Apparently he went to LBJ, another jail, and tried to get in through a video visit there. He was dragged out of LBJ. I then know that he --
MR. NURMI: Is this the same guy with the white hair?
MS. WILLMOTT: No. We don ' t know who he is.
THE COURT: Let's go back in chambers, and I want to make a record.
MR. MARTINEZ: Just to point out the guy with the white hair. he is an individual that wears a visor cap. He is actually bald and the visor cap--
MR. NURMI: It is a different one. I was referring back to a gentleman that showed up at my office
MR. MART IN EZ: Then I sorry.
MR. NURMI: showed up at court, and MCSO had to warn away and then he showed up again within the last week.
MR. MARTINEZ: Before we get off the record here, I have not moved into evidence those exhibits tha t were shown to the jury. Let me give you the numbers. and I will move them in--I would move these into evidence.
THE COURT: Is there any objection?
MR. NURMI: No, your Honor.
THE COURT: Exh ibits 681, 682, 683, 684, 685 and 686 are admitted.
MS. WILLMOTT: If you wanted further explanation that she is --
THE COURT: I will give her a chance to make her record.
MR. MARTINEZ: And the record will be made out here?
THE COURT: Back in the other room and the cameras have already they are breaking down both the cameras but with regard to everything else--all right. We can reconvene in the robing room.
(Whereupon, bench conference concludes.)
(Whereupon, the following proceedings took place in chambers: )
THE COURT: Let the record show the presence of the Defendant in chambers with all counsel, Miss De LaRosa, Detective Flores, t wo representatives of the victim and there is court staff and the deputy.
Miss Arias, it has been brought to my attention that you will be testifying next during this penalty phase trial; and that you were objecting to the presence of the cameras as well as the public in the courtroom; is that correct?
MS. ARIAS: Well, not just in the courtroom, their knowledge of my testimony at all.
THE COURT: Tell me what your concern is.
MS. ARIAS: Well, I have received several threats over the last few years. A lot of crazy people come to the jail and try to visit me. and some of the threats are of the nature very specific as far as different things that I--if you say this, than this; and if you say that, than that. I can give you some specifics if you want.
THE COURT: Okay.
THE WITNESS: Well, some are that--you know, obviously, they are very hateful and some towards me and some are very hateful towards Travis and his family. So they kind of go both ways. So I'm not able to testify in the way--in the way that I would need to testify as far as being open and honest because of the pressure that I would feel because of these threats. I also have heard that one of Travis' friends said he wanted to shoot me between the eyes.
THE COURT: Well, you are in custody. So the physical threat aspect--I would think--would be of limited concern to you. With regard to the other threats that you are receiving. you can simply choose not to look at any of this mail and be aware of it. But with regard to the victim family members receiving threats, is there any concern, Mr. Martinez?
MR. MARTINEZ: No. There is no concern of them receiving threats. Even if they are through her, we are not concerned.
MS. ARIAS: They are not threatening them. They are threatening me.
MR. MARTINEZ: Sorry to interrupt, but I thought she said it went both ways?
THE COURT: Right. That's what I --
MS. ARIAS: The threats fall on me but the op1n1ons are polarized. They are across the board is what I mean. So I can' t--I can't say one thing or the other without upsetting people, and it has been, what, 16 months? I have received thousands and thousands and thousands of pieces of mail. Some of it--most of it is supportive but a lot of it is hateful too. So it is not just--I know I'm in custody, but that doesn't necessarily negate I mean, people stil l have access to me. It is just limited.
THE COURT: I proposed to all of the attorneys that we have the cameras removed, both the sti ll camera and the video camera. There is an order--I 'm sure you are aware--in place that none of the proceedings can be broadcast until after the trial is over. In addition, the proceedings are being recorded by FTR. It is part of the court process. It is also--it is just going to happen that those FTR recordings will be made public at some point after the verdict comes in. So regardless of whether or not you speak in a closed proceeding, it is likely that this information will be out there; and whether you personally present information during your trial, you can still conceivably receive threats or be harassed.
MS. ARIAS: Well, my understanding is that some of the witnesses who will be testifying on my behalf will remain under seal because a lot of them aren't willing to testify unless that's the case because of the way it would affect their lives. And so given the fact that after trial, I will be going to a different facility, a lot more people will have access to me as well. So that would concern me too. I don't think I would be able to testify knowing that my identity--we all know my identity knowing that my testimony would be out there as well because it could affect me in the fut ure. Just as some of my witnesses won't testify if they--unless they are given the promise that their testimony and their identities won't be revealed in the future, I have similar concerns.
THE COURT: I have not yet received any written motions requesting that any of the witnesses' statements be sealed or their testimony be sealed or the proceedings closed. We have had discussions about those matters in the past, but I haven't received any specific requests in connection with the penalty phase trial. I haven't made any such rulings at this point.
MS. ARIAS: Okay. I guess I was under a different impression about my witnesses.
THE COURT: Well, assuming that the appropriate showings can be made, the Court may seal proceedings for some of those witnesses. I haven't made those rulings yet. You did testi fy at length in the first trial.
MS. ARIAS: Right.
THE COURT: So your position is out there in terms of if the public wants to write letters to you, they already have a basis for doing that.
MS. ARIAS: I think that the fact that I testified publicly like that was one of the biggest motivators for people to write those things. It caused a big frenzy.
THE COURT: So it is not just the presence of the public and the media in the courtroom that you find intimidating? It is the fact that they will hear what you have to say, period. That is of concern to you?
THE WITNESS: Right, that they would have any knowledge that I 'm even testifying at all in this trial.
THE COURT: Okay. Mr. Martinez?
MR. NURMI: Your Honor, I would actually like Miss De LaRosa to make one other point on this issue because there was an issue we referenced at bench, and I didn ' t want it lost in terms of the record we make here about an individual showing up at a couple different jails and. I guess, the Arizona Republic as well.
MS. DE LAROSA: Yesterday when I went to visit Miss Arias, I was informed by the guard the signing guard that there was an individual running around the jails trying to get in to see Miss Arias; that he was claiming to be her attorney and that they felt threatened and that she was concerned about our safety and Miss Arias ' safety. They turned him away; but when I was signing off, she informed me that he was coming back and she was so concerned that she didn ' t even sign me up. She gave me the paper and said "get in."
And then later on, I receive another message from one of the reporters of the Arizona Republic saying that this person came to my--to the paper and he was--sounded crazy. He sounded delusional and he was scary. So I just wanted to tell you guys that--to be careful because he was claiming to be Arias ' attorney, and he claimed that he had pictures of her and that he sat in the trial the day before. He heard about the trial the day before and that he was that he was--that he wanted to come in and see her for whatever reasons; and he felt that we were in danger. So he report
THE COURT: Did you see this individual in the courthouse today?
MS. WILLMOTT: I don't know. I never saw him.
THE COURT: You never saw him?
MS. WILLMOTT: They were so concerned so they let me go in so he wouldn't see me.
MS. ARIAS: Their concern was great enough that two officers approached my housing unit as well to warn me. That doesn ' t happen wi th any visitors even if they are random. brief?
THE COURT: Anything else, Mr. Nurmi?
MR. NURMI: Other than argument on the issue or
THE COURT: Okay. Any questions from the State?
MR. MARTINEZ: No questions, just --
THE COURT: Just argument?
MR. MARTINEZ: Just argument.
THE COURT: It is your motion to close, Mr.
MR. NURMI: Your Honor, I said at bench I think if we are--whatever logic the Court wants to apply--and I know the Court is somewhat bound to do so--but at the same time we have to judge the concerns Miss Arias has from her psychological shortcomings. Like I said at bench, we have a diagnosis of Post-Traumatic Stress Disorder. We have a diagnosis of Borderline Personality Disorder. So we are not dealing with the mind of a mentally stable woman who has these concerns. So when she is advancing these concerns--whether they may seem illegitimate to all of us, they are legitimate to her; and I point that out because then the legitimacy to her affects her ability to move mitigation forward, to present a full and complete case for her life. That's where the concern comes from my part because under Eddings and under Locket and the whole line of death penalty, juri sprudence says she has the right to present this full case mitigation. What I said at the bench as well, using Smith v. Texas and Estes v. Texas, her rights to do so in the heightened jurisprudence of death penalty litigation is such that it trumps any First Amendment right or any public access right.
And that's really what we are talking about here, the right to attend a trial or a portion of the trial. And I know the Court was inclined already to clea r the courtroom. The issue then seems to be the remote viewing room, which we objected to previously anyway; but the point being if she feels somehow intimidated by that, then that to me that is enough to grant such a motion to let her proceed with her testimony. If she thus feels that she cannot effectively testify and thus chooses not to, I think that is ultimately a preclusion of mitigation.
THE COURT: Mr. Martinez?
MR. MARTINEZ: What they have set out for you is a prospective concern of something that may happen in the future. They haven't pointed to anything specifically that they can use to buttress the argument. Defendant claims that she may be the subject of death threats and points to the Maricopa County Sheriff's Office situation. That, if anything, indicates that she is safe because the Maricopa County Sheriff's Office--worked. It worked. Nobody even went in there to cause her any harm; and as you have pointed out, if she is concerned about any letters, she doesn't have to read the letters. So I think--first of all, looking at the Defendant's concern I don ' t see it as valid as it could be because it talks about something that is in the future. That is prospective.
Additionally, there is this issue about what the media is going to say, and somehow it is the media ' s fault that--they are the ones that are stirring the pot and because of them, bad things may in the future happen to the Defendant. I will just reference my response to the Defendant's motion to dismiss the allegation of the death penalty where I have attached Tweets where you can't on one hand say exclude the media because of something that is going to happen prospectively, but let me go ahead and manage what is going out there. Let me tell them what is going out there. I heard that again today where Miss De LaRosa indicated she got a call or something--had some contact from the--I think it was the Arizona Republic--there is clearly a relationship there--and I don't care about it--only as it applies to these proceedings; that it is clear they are trying to manage what goes out there. It is okay to receive a death threat if the Arizona Republic re ports on it, but not if the other media report on it or if the public talks about it. So from our perspective, first of all, they haven ' t met the threshold because it is something prospective. Additionally, from an estoppel point of view, it just seems that you can't have it one way and then want it the other way also. It is one sword, and you have to--if you pick it up, it has to--a sharp blade on both si des and what is--what the Court has proposed in terms of a sol ution, I think, is appropriate. You have indicated that you would clear the courtroom as she requested so that the immediate nervousness is not there. So she can't say she is nervous. And all of the media is going to be out somewhere else I don't know exactly where the viewing rooms are--and they will be able to report on it. I think that's the only appropriate solution.
My concern--as I indicated at the bench was that if we close the proceedings, I have a strong concern that the closing of the proceedings will result in this thing coming back. To me, I don't think it warrants what the Defendant is requesting. I think that your solution is appropriate.
THE COURT: Mr. Nurmi?
MR. NURMI: I have just the opposite concern in terms of Miss Arias' rights. Again, I think the State is trying to apply logic to the feelings of, again, a woman they know is mental ly ill as their own expe rt diagnosed her as such. The point of this being if she feels intimidated by that, then that to me is sufficient--we are talking about the difference in what we are requesting and what the Court is--Court's previous order was whether or not the viewing room would be shut down, and that's really what we are talking about here. This idea that harking at every corner--every motion we make, somehow the State brings up one Tweet that Miss De LaRosa--that she had with Mr. Kiefer, t here is clearly a relationship for that and the next stop for this individual would be my office, Miss De LaRosa or Miss Willmott's office because we have had people approach our office as well. That has been fairly well documented throughout these proceedings.
So, you know, the case the State referenced relates to the proceedings being shut down and the Defendant contesting that, not the other way around; and I think that if we do prevent Miss Arias from testifying--for whatever reason--due to her mental infirmity, she feels that is a prevention and we have a serious problem under Eddings; and I think the State should be more concerned about that then they are whatever media exposure they wish to have. So we would ask the Court to comply and shut down and add the remote viewing room to its previous order, I guess.
THE COURT: All right.
MS. ARIAS: Can I say one more thing?
THE COURT: Certainly.
MS. ARIAS: It is not about who is sitting in the courtroom. It is about the knowledge that there are people privy to my testimony. Mr. Martinez said it is that I would be less nervous if we cleared the courtroom. It is more about knowing, in my mind as I 'm trying to answer these questions, that there are people who are privy to what I'm saying and should I answer one way or another because of these threats--so that was not accurate. It is not about who is sitting in the courtroom.
MR. MARTINEZ: Is the Defendant indicating that she is going to be untruth ful on the witness stand depending on the composition of the cou rtroom? That causes me concern because the truth is whatever it is irrespective of who is in the courtroom, and I believe that's what the Defendant is indicating; t hat depending on the composition, she would change her answers.
MS. ARIAS: Well, I will always be truthful. It 1s about am I able to express the truth in the way I need to express it or wi l l that be cramped because of the pressure that I'm feeling because of the threats that I have received.
THE COURT: All right. I want to think about this. It is close to the lunch hour. It is 20 to 12:00. Let's reconvene at 1:00 o'clock. I will have a decision at 1:00 o'c l ock.
(Whereupon, in-chambe rs conference concludes.)
(Whereupon, a lunch break was had.)
(Whereupon, a bench conference is held on the record: )
THE COURT: Do you have anything else to report, anything else?
MR. MARTINEZ: I would just note from my point of view, it seems like it sets bad precedent for any Defendant who comes up here and from a subjective view says--my cha racterization--nervous and it will affect the way I testify, it is just--it creates problems for me--for the State actually.
MR. NURMI: I don't think that is a consideration this Court has to give, consideration of the circumstances in this case and given the fact based on those circumstances I know consistent with the concerns, minutes after getting out of chambers of course--I wasn't checking my phone in chambers--there were Tweets about Miss Arias trying to manipulate the media and that sort of thing within minutes. So this obviously affects her 1n some way, and I think just sticks with the idea of her feelings. That ' s all I can speak to.
THE COURT: Well, I acknowledge that I believe this is a manipulative tactic; and I have concerns about the genuine reason for the request to close the proceedings; however, my concern is that if I don't close the proceedings, the Defendant will be precluded from testifying or will refuse; and I'm not sure that under these circumstances an Appellate Court will find that it is a voluntary waiver of her right to present mitigation. So I'm going to close the proceedings. So you are aware, I will read a statement indicating my reasons.
MR. NURMI: I think Counsel for the media is present as well so--I saw some Tweets about that he was runni.n g over. So--].U mps up.
THE COURT: Okay.
MR. NURMI : I'm just making you aware when he
THE COURT: I'm sure he will.
(Whereupon, bench conference concludes.)
THE COURT: All right. Based upon information provided at a hearing earlier today, the Court finds that the Defendant's next witness will not testify unless these proceedings are closed to the public. Regardless of the reasons provided by the witness for a requested closure, the Court finds the Defendant has a need for the tes timony of this witness to be heard by the penalty phase jury in support of the Defendant's mitigation case.
The Court further finds that the witness will refuse to testify unless the proceedings are closed. Because this is a death penalty sentencing trial, the Court finds that closing the courtroom so that this witness will testify is necessary to further the administration of justice. The Defendant has an overriding and compelling interest in presenting mitigation evidence from this witness, and that interest will be prejudiced if the courtroom is not closed so that the witness will testify. The closure of the courtroom for the testimony of this witness is no broader than necessary to protect the Defendant's interest in providing mitigation evidence for the penalty phase jury.
The Court has considered and suggested other alternatives to closing the courtroom; however, the witness has refused to participate unless the courtroom is closed during his or her testimony.
It is ordered closing the courtroom for the testimony of this witness. The family of the victim may remain in the courtroom for the testimony. The testimony of the witness will be video recorded by FTR. The Court will consider unsealing the testimony of this witness or a redacted portion of that testimony after the jury has reached a verdict. All right.
MR. NURMI: Your Honor, for clarity, is this also inclusive of the remote viewing room as well?
THE COURT: Yes. Proceedings are closed.
MR. MOESER: Your Honor, my name is Chris Moeser from Ballard Spahr on behalf of Phoenix Newspaper, KPNX, KPHO. My clients object to the closure and would ask that you put those findings in writing. I would also ask the Court will a transcript of that testimony be made available immediately upon the ending of that proceeding or when will a transcript be made available?
THE COURT: That is something that I will need to discuss with the attorneys. There was not an order closing those proceedings, but I will hear from the attorneys before I make a ruling on that issue. With regard to the written--a written ruling with regard to the Court's decision, you can obtain a copy of that from the court reporter.
MR. MOESER: Your Honor, I would like to state on the record that because this next portion of this criminal proceeding is closed, the public and the press have a presumptive First Amendment right under the Constitution, under the Arizona Constitution, that says that justice shall be administered openly to attend this hearing, to be present while this witness testifies. The First Amendment requires that the Court make a transcript of that proceeding available as soon as possible. We would urge the Court to do it immediately upon adjournment of that hearing. And, I mean--finally, we just ask the Court to reconsider its ruling because of the important nature of this case; and the fact that there is such a heavy presumption that criminal court proceedings are conducted in public in the forthlight (sic) of day.
THE COURT: I'm aware of the First Amendment implications. This was not an easy decision. I thought about it over the lunch hour and my decision is final. You certainly may take my decision up on appeal. I assume you intend to do so because you are ordering a transcript.
MR. MOESER: Your Honor, one other question. Can
you provide the identity of the witness that will testify?
THE COURT: No, not at this time.
MR. MOESER: Thank you, your Honor.
THE COURT: All right.
(Whereupon, further proceedings were had which were not transcribed at this time.)
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