Sentencing and beyond- JA General Discussion #6

[Niner]

Krkrjx, Texmex,

Both these points illustrate the frustrations and cruelty of the system to families. Successfully let a hideous murderer escape a death sentence - what a noble CV addition. Assassinate the character of the victim or the victim's families. Truth matters little in saving the precious lives of evil, barbaric murderers. Protesting against the death sentence excuses any tactics, distortions or hurtful lies. The Westerfield trial - I hadn't heard of it. Deeply upsetting to learn of the additional pain he put the family through. How very 'Arias' of him.

It happened in San Diego in 2002 - the little girl's name was Danielle van Dam. :rose:

 

[tsitra01]

It happened in San Diego in 2002 - the little girl's name was Danielle van Dam. :rose:

I will always remember that trial. it was heartbreaking. We, here at Websleuths made quilt squares and a wonderful lady put them together and the finished quilt was presented to Danielle's mother.

 

[krkrjx]

Krkrjx, Texmex,

Both these points illustrate the frustrations and cruelty of the system to families. Successfully let a hideous murderer escape a death sentence - what a noble CV addition. Assassinate the character of the victim or the victim's families. Truth matters little in saving the precious lives of evil, barbaric murderers. Protesting against the death sentence excuses any tactics, distortions or hurtful lies. The Westerfield trial - I hadn't heard of it. Deeply upsetting to learn of the additional pain he put the family through. How very 'Arias' of him.

Not only saving a life of one who took a life...but what about those cases where the killer not only escapes death but walks free?

I don't know how some of those attorneys sleep at night. Many must be as much a psychopath as their clients often are. Without a conscience I suppose you can get by with all sorts of despicable deeds and not lose one night's rest over it.

 

[LinasK]

Krkrjx, Texmex,

Both these points illustrate the frustrations and cruelty of the system to families. Successfully let a hideous murderer escape a death sentence - what a noble CV addition. Assassinate the character of the victim or the victim's families. Truth matters little in saving the precious lives of evil, barbaric murderers. Protesting against the death sentence excuses any tactics, distortions or hurtful lies. The Westerfield trial - I hadn't heard of it. Deeply upsetting to learn of the additional pain he put the family through. How very 'Arias' of him.

The thing is, just like Travis wasn't a perfect victim, neither were Danielle's parents, which opened them up to attack. I myself found myself mentally questioning them at the time. They were self-described "swingers" and frequented bars. Supposedly Danielle's mother rejected a pass from Westerfield at a bar, and his kidnapping, raping, and killing Danielle was revenge for her mothers' rejection of him. Also, her father never checked on her that night. Since that case, I always make it a point to check on my daughter before I go to bed, no matter how late to make sure she's in her bed.

 

[LinasK]

Not only saving a life of one who took a life...but what about those cases where the killer not only escapes death but walks free?

I don't know how some of those attorneys sleep at night. Many must be as much a psychopath as their clients often are. Without a conscience I suppose you can get by with all sorts of despicable deeds and not lose one night's rest over it.

I discovered a previous WS member- has since left who I'm fairly certain was a member of OJ's Dream Team. I asked him how he could defend a guilty person. Besides feeling it was his constitutional duty, his answer was "moral cover". They feel somebody's gotta do it, so why not get paid?

 

[Madeleine74]

If you believe in the constitution of the U.S. and understand the adversarial system in place for litigating criminal cases, you realize the "other side" is necessary and the constitution as written requires that an accused have representation. That doesn't mean you're evil if you're an attorney (though there are certainly some evil defense attorneys), but if you want to work in criminal law you either work for the state so you can prosecute (of which there are finite positions available), or you work as a defense attorney. There are no other 'sides' so as an attorney it's one or the other. Some start in the DA's office and eventually move on to defense work. Those are your only 2 choices in that particular type of legal work.

How do they sleep at night? With the money attorneys make--on 1,200tc Egyptian cotton sheets if they so choose.

 

[TexMex]

The thing is, just like Travis wasn't a perfect victim, neither were Danielle's parents, which opened them up to attack. I myself found myself mentally questioning them at the time. They were self-described "swingers" and frequented bars. Supposedly Danielle's mother rejected a pass from Westerfield at a bar, and his kidnapping, raping, and killing Danielle was revenge for her mothers' rejection of him. Also, her father never checked on her that night. Since that case, I always make it a point to check on my daughter before I go to bed, no matter how late to make sure she's in her bed.

Signonsandiego did a great job during that trial. They have lots of documents, motions unsealed over the past few years

http://legacy.sandiegouniontribune.com/news/metro/danielle/

 

[Hope4More]

Barring any requests for extensions, appellate briefs are due June 28th. If an extension is requested and granted, add 30 business days in from the time the extension is granted.

 

[Niner]

Barring any requests for extensions, appellate briefs are due June 28th. If an extension is requested and granted, add 30 business days in from the time the extension is granted.

What I'd like to know is - "when" do WE get to see the sealed records and Sheriff Arpaio stuff?? :waiting:

:wave:

 

[krkrjx]

I discovered a previous WS member- has since left who I'm fairly certain was a member of OJ's Dream Team. I asked him how he could defend a guilty person. Besides feeling it was his constitutional duty, his answer was "moral cover". They feel somebody's gotta do it, so why not get paid?

Well, I believe that all citizens deserve a defense if they are ever charged with a crime. Some are actually innocent. And those who are guilty...some of them may have viable extenuating circumstances and I believe this should all have a chance to be worked out in a court of law.

What I despise is that one side gets to lie and cheat. They can say whatever they want without having to prove any of it, not even a requirement that they phrase their scenarios with "What if..." or "Suppose...". IOW, they can give a scenario as fact when they know that it most certainly is not. It's the fabrication of something that is not even close to reality, put to a jury as if it is fact, that I object to.

 

[lewcch3]

Barring any requests for extensions, appellate briefs are due June 28th. If an extension is requested and granted, add 30 business days in from the time the extension is granted.

Do you think her briefs will be filed under seal? Is that the normal practice for appellate briefs or will the secrecy for the continue?

 

[Hope4More]

Do you think her briefs will be filed under seal? Is that the normal practice for appellate briefs or will the secrecy for the continue?

Briefs won't be filed under seal. Doesn't mean we'll have access to them though, at least, not until the COA denies her appeal.

I can't imagine the COA or any other court keeping the record sealed past PCR proceedings, at the latest. The COA is her only and last shot at state level appeals (unless the AZSC agrees to hear her appeal, hahaha). She can file for that PCR, but when she's denied there as well, she's done, no excuse to keep records sealed, unless she has $200k to put down as a retainer for federal appeals. LOL and good luck with that.

 

[Hope4More]

What I'd like to know is - "when" do WE get to see the sealed records and Sheriff Arpaio stuff?? :waiting:

:wave:

I really think Sheriff Joe's records on are tied to whatever the AG is investigating. Witness tampering, perhaps?

 

[salberg7]

Well, I believe that all citizens deserve a defense if they are ever charged with a crime. Some are actually innocent. And those who are guilty...some of them may have viable extenuating circumstances and I believe this should all have a chance to be worked out in a court of law.

What I despise is that one side gets to lie and cheat. They can say whatever they want without having to prove any of it, not even a requirement that they phrase their scenarios with "What if..." or "Suppose...". IOW, they can give a scenario as fact when they know that it most certainly is not. It's the fabrication of something that is not even close to reality, put to a jury as if it is fact, that I object to.

Well said. That is somewhat of a dichotomy as the court is a place to find the truth, but defense attorneys can bend the truth as they did in this case and many others.

 

[Steve44]

Thanks Hope, I really appreciate this, hopefully it's no longer considered a capital case since she didn't get the DP and maybe round about Christmas Maria can deliver the denial wrapped in a shiny bow with a pinwheel on top, a gift from the taxpayers of AZ. I wish on rainbows a lot though.

I believe her case will remain in the Capitol category throughout the appeals process. The State sought the DP, a death-qualified jury was seated and every legal decision and process followed throughout the trial was in that light. It would be inconsistent to treat the case differently now based on an outcome that was always a possibility from the beginning.

 

[Steve44]

APPEALS, Soup to Nuts.


I. What is the appeals process?

“Once the appellate court receives both petitioner and respondent briefs, it will analyze the arguments and make a determination of whether: a) there were errors of law made by the trial court, and b) whether the errors rise to the level of "reversible error.” Harmless errors will be overlooked by the appellate court.

The court will either: 1) affirm the decision; 2) order a new trial; 3) modify the ruling in some way; 4) in extremely rare cases, may throw out the case entirely. “Westlaw.

(Reversible error: is a legal mistake at the trial court level which is so significant that without the error the outcome may have been different and the judgment must be reversed by the appellate court. A reversible error is distinguished from an error which is insignificant and did not affect the judgment at the trial. Reversible error may be made by a judge or jury. Although attorney misconduct is not technically reversible error, the failure of the judge to remedy it during the trial is reversible error. Reversible error affects the reliability of the outcome of a court case). http://definitions.uslegal.com/r/reversible-error/

II. What are the odds of a successful appeal?

“The number of successful appeals is low. Appellate courts give the trial court great leeway in conducting trials. The law does not guarantee perfect trials, therefore appeals courts will only overturn verdicts which contain clear, serious errors of law.

Because of the leeway appeals courts give trial verdicts, petitioners carry an even greater burden in proving that errors of law were serious and not harmless. If an appellate court can find any reasonable argument that the error wouldn't have changed the verdict (and is therefore "harmless"), it will refuse to overturn the verdict.” (Westlaw)



III. Arizona’s Rules for Appellate Briefs

Except by permission of the court, (i) a principal brief in a non-capital case prepared in a proportionately spaced typeface may not exceed 14,000 words

(1) Appellant. The appellant's brief shall include:
(i) A table of contents with page references.
(ii) A table of citations, which shall alphabetically arrange and index the cases, statutes, and other authorities cited, with references to the pages of the brief on which they are cited.
(iii) A statement of the case, indicating briefly the basis of the appellate court's jurisdiction, the nature of the case, the course of the proceedings and the disposition in the court below.
(iv) A statement of facts relevant to the issues presented for review, with appropriate references to the record. The statement shall not contain evidentiary matter unless material to a proper consideration of the issues presented, in which instance a reference shall be made to the record or page of the transcript where such evidence appears. The statement of facts may be combined with the statement of the case.
(v) A statement of the issues presented for review. The statement of an issue presented for review will be deemed to include every subsidiary issue fairly comprised therein.
(vi) An argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. The argument may include a summary. With respect to each contention raised on appeal, the proper standard of review on appeal shall be identified, with citations to relevant authority, at the outset of the discussion of that contention. Citation of authorities shall be to the volume and page number of the official reports and also when possible to the unofficial reports.
(vii) A short conclusion stating the precise relief sought.
(ii) In addition, the appendix to an appellate brief may include extended quotations from cases and authorities where such quotations are required for proper presentation of the issues.

f. Capital Cases.

(1) Time for Filing. In capital cases, the appellant's opening brief shall be filed within 70 days after the mailing of the notice as provided for by Rule 31.10. Except by permission of the court, (i) a principal brief in a capital case prepared in a proportionately spaced typeface may not exceed 28,000 words……



IV. Advice by a judge on appellate brief writing:


1. Writing a laundry list of points( is a bad idea). Select 3 or 4 of what you think are your strongest points and develop those.

2. Do not beat us over the head with statutory language and precedent. Your case, unless it is a federal criminal case, probably would not have reached the court of appeals if it had been clearly governed by a statute or a case.

3. Do not exaggerate the cogency of reasoning by analogy by trying to persuade us to base our decision on a previous case, especially a case from another field of law.

4. Be brief. Judges do a lot of reading. (Holmes once said that he was paid to read—that was his job.) We get tired or bored, and some of us tend to start skimming when we encounter a tedious, repetitious brief.

5. Do not omit from your brief, especially if you are the appellant, mention of the strongest points that you know your opponent will make in his or her brief. Often I read the appellant’s brief and think, how could the judge have made such a mistake, committed such an injustice! And then I read the appellee’s brief and realized that the appellant’s brief had omitted the points that showed that the lower-court opinion, whether ultimately persuasive or not, was at least reasonable. And when that happens, one loses confidence in the appellant’s position.




V. Some possibilities of what ’s attys will argue, taken from Nurmi’s many motions, and how JSS ruled.

1. Inconsistent testimony by Flores about sequence of injuries (shot first) 2009 probable cause hearing versus trial testimony.

((Note: The shot-first aspect was litigated before trial. The DT hopped all over this not just to impeach Flores, but because, they argued, shot-first mattered as to whether or not the State could demonstrate “especially cruel,” the State’s sole basis for seeking the DP.

DT asked for a new probable cause (Chronis) hearing January 2013. JSS denied, saying in part---shot first or last, doesn’t matter, an abundance of evidence demonstrates Travis suffered tremendously. DT filed for a Special Action by the COA, the COA declined jurisdiction)).

JSS: DT had the opportunity in both guilt phase and PP2 trials to cross-examine Flores and ME on the stand about Flores’ 2009 statements. Credibility of witnesses is the jury’s to determine.

2. Text messages were not disclosed to DT in a timely manner.

JSS: Texts were provided to DT in October 2010, way before trial, way time enough; technology to capture texts didn’t exist before that.

3. Media shouldn’t have been allowed-the circus deprived of a fair trial, the jury should have been sequestered, blah blah blah.

JSS: I bent over backwards to accommodate every last little whine of yours about this. Believe it or not, this wasn’t the trial of the century or even of the decade. All that matters is if the jury was influenced by media coverage. Each and every juror during both trials said daily they were not, end of story. (Note: because, Mr. Nurmi, unlike you, appellate courts NEVER as in NEVER presume jurors lie).

3. JM harassed, intimidated, was a meanie to DT witnesses.

JSS: It’s called zealous cross examination. Get over it.

4. was deprived of due process during the guilt phase because Detective Melendez testified he didn’t find *advertiser censored* or viruses, which made the look like a liar when she was actually telling the truth. And Melendez testified to the same thing during PP2.

JSS: The DT had the opportunity to cross Melendez at both trials. It’s up to the jury to determine witness credibility, evaluate evidence, and to resolve factual disputes.

JSS: And by the way. During the guilt phase, Melendez’s testimony about TA’s computer related to June 4. The computer evidence existed then to establish those facts.

5. Prior attorneys were ineffective for allowing destruction of evidence when computer was turned on.

JSS: Nope, harmless, whatever was lost, because the DT had access to a mirror image of the HD. No demonstration of prejudice to your client.


6. Flores woke up TA’s computer, destruction of possibly exculpatory evidence, Flores violated LE protocol.

JSS: No reason to believe any relevant evidence was destroyed, much less exculpatory evidence, much less intentionally destroyed. And no, Flores didn’t violate protocol; waking up sleeping computers was standard practice, and Flores had no idea it was a bad idea


7. The was denied her 1, 2, 3, 4, 5, 8, and 34th right to fully mitigation-tify.

Why? Mitigation witnesses were too afraid to testify. They were afraid of being picked on by SM bullies, and terrified JM would be a shouting meanie.

JSS: Zealous is good, the court can’t control what SM does, the court offered to accommodate the quivering alleged witnesses with creative solutions including: pseudonyms, testimony brought in through other witnesses, names sealed, testimony videotaped, and by the way, you could have used subpoenas.

Considered your Affidavits--under seal--of Sept 26, 2014, your supplements-under seal- filed Jan 5 and 7, 2015, and your Nov 26, 2014 Motion to Reconsider given COA’s ruling, but the latter applied only to the , not to other mitigation witnesses.
.
The Defendant has failed to demonstrate any misconduct by the State that deprived the of her ability to present full mitigation, and it is patently absurd to claim the was too afraid to testify in PP2 after spending 18 days on the stand in guilt phase burying us all with her rancid lies.

------------------------------------



Handy definition: Prosecutorial Misconduct. Intentional, knowingly improper and prejudicial. Must be demonstrated that there was a reasonable likelihood the conduct deprived defendant right to a fair trial. Must be “pronounced and pervasive enough to have permeated the atmosphere” of the entire trial. Errors, mistakes, and insignificant impropriety don’t rise to this level.

Handy to remember: JSS denied every single one of Nurmi’s motions for this or that based on prosecutorial misconduct. Can’t be “pervasive” if not one motion was persuasive.

Excellent post!

 

[Steve44]

Thanks for laying all this out for us, Hope. I do wonder, however, about the incident recounted in JM's book where he found/was delivered/somehow became privy to her former defense attorney's notes, which contained all sorts of incriminating stuff.

I think she might have an "in" there?

If anyone can allay my fears, please chime in!

I think the issue will be if he used any of that knowledge to get an unfair advantage during the course of the trial. IOW did it affect in a material and concrete way his performance in court. I don't see any evidence of that, nor how it could since anything he brought up during trial could be responded to by the defense.

 

[Hope4More]

I believe her case will remain in the Capitol category throughout the appeals process. The State sought the DP, a death-qualified jury was seated and every legal decision and process followed throughout the trial was in that light. It would be inconsistent to treat the case differently now based on an outcome that was always a possibility from the beginning.

I understand that reasoning, which is why I asked AZL. She's a practicing appellate attorney in AZ (doesn’t get any more expert and on point than that,) and she’s quite sure the ’s appeal will be handled as non-capital.

 

[Steve44]

Tru dat! But thank goodness JM got that info and ran with it. Scary what would have happened if things had worked out otherwise...

I have re-read JM's book a couple times now, and each time something new strikes me as ... I guess the best word is "kismet?"

IOW, given that she was such a gifted liar, I wonder if a prosecutor less experienced and detail-oriented than JM would have been able to show her for what she was, enabling a jury to convict her beyond a reasonable doubt.

Thank goodness we'll never have to find out. But in my schadenfreude mindset, I am extremely happy that JA thought she was smart enough to get one over on everyone, and failed so utterly and supremely.

I do think that without JM being so on his game, she might have gotten off with M2, and I think she was banking on that right up until the verdict was read...

JM was an integral part of Jodi's Karma...

 

[Hope4More]

Excellent post!

aw shucks.. Thanks--and glad to see you stop by. It's been a long while