Sealing court for secret testimony, October 30, 2013, and Rule 9.3.b of the Arizona Criminal Procedure (part 1).
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I. OCTOBER 20, 2013.
Trial began in the morning. Tanisha gave her victim impact statement, and by all accounts, virtually everyone in the courtroom, including at least some jurors, openly wept as she spoke. Stephen gave his statement next, and the crying continued. JSS called for lunch recess, after which the first defense witness was to be called.
Chaos followed instead. When all trial documents are finally unsealed and appeals exhausted, from the record that is available, I think what well learn is that the demand for the courtroom to be closed was made by the , unilaterally and spontaneously, because she wanted to seize the spotlight back from the Alexander family, and because she was angered by the universal sympathy for their grief being demonstrated that morning.
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II. Arizona Rules of Criminal Procedure, Rule 9.3.b . Exclusion of witnesses and spectators
b. Spectators. All proceedings shall be open to the public, including representatives of the news media, unless the court finds, upon application of the defendant,
that an open proceeding presents a clear and present danger to the defendant's right to a fair trial by an impartial jury.
A complete record of any closed proceedings shall be kept and made available to the public following the completion of trial or disposition of the case without trial.
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III. Pre-trial secrecy and Rule 9.3.
JSS ordered the unsealing of bench conference transcripts a few weeks after the first sentencing phase mistrial, only to reverse herself a week or so later by ordering the transcripts be resealed as their availability might taint the jury pool for PP2.
The court-imposed secrecy of PP2 proceedings began then, that secrecy demanded by the DT and predicated on their oft-repeated assertion that trial publicity had prevented the defendant from receiving a fair guilt phase trial, and unless adequate measures were taken, threatened to deprive her of a fair penalty retrial.
Nurmis August 2013 motions (change of venue, jury sequestration, individual voir dire) were intended to reinforce the publicity -related issues the DT had from the very beginning been laying down as groundwork for later appeals.
On September 16, 2013, JSS ordered that mitigation witness names (the DTs witness list) be filed under seal. On October 1, 2013 JSS ruled that the scheduled October 4 and 18 pre-trial hearings be closed to the public, saying explicitly that open court would present a clear and present danger to the defendants right to a fair trial, and that given intense media coverage, there is no less restrictive measure than closure. JSSs ruling was based squarely on her interpretation of Rule 9.3
Approximately one month later, on November 4 and 19, 2013, two secret hearings were held about the threat to the s due process rights posed by pre-trial publicity. The hearings were to be kept so secret that JSS ordered the court clerk to scrub the courts public minute entry website docket of any mention the hearings had even taken place.
Part of what JSS ordered during the November 19, 2013 hearing , though, can be known by inference from the transcript of bench and chamber hearings on October 30th 2014, and from Nurmis argument to the Court of Appeals that the court remain sealed for CMJAs testimony.
By inference, then: on November 19, 2013, JSS agreed with the DTs argument that Rule 9.3 allowed her to clear the media and public during proceedings in which CMJAs mitigation witnesses testified. She did NOT commit to clearing the court for any of the DTs mitigation witnesses. Rather, she stated then that she MIGHT invoke the Rule, should circumstances warrant her doing so.
The circumstances the DT claimed dire enough to warrant evicting the media and public from open court seems to have been their assertion that mitigation witnesses wouldnt agree to testify unless shielded from the public. That claim was factual. The second prong of their argument was about legal consequences. The DT argued that a denial by JSS of the DTs request to close court to accommodate the intimidated witnesses was legally equivalent to precluding mitigation, and thus would deprive CMJA of her due process constitutional rights.
In turn, the necessity of shielding witnesses the DT asserted was predicated on the DTs factual representation that defense witnesses were actually being threatened.
JSS hadnt been convinced enough in November 2013 that the existence of any such threats merited granting the DTs request for closure outright. Did her order to close the court on October 30, 2014 indicate the circumstances that day were what she had previously said might warrant sealing the court to protect CMJAs due process rights? The answer is--yes and no.
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I. OCTOBER 20, 2013.
Trial began in the morning. Tanisha gave her victim impact statement, and by all accounts, virtually everyone in the courtroom, including at least some jurors, openly wept as she spoke. Stephen gave his statement next, and the crying continued. JSS called for lunch recess, after which the first defense witness was to be called.
Chaos followed instead. When all trial documents are finally unsealed and appeals exhausted, from the record that is available, I think what well learn is that the demand for the courtroom to be closed was made by the , unilaterally and spontaneously, because she wanted to seize the spotlight back from the Alexander family, and because she was angered by the universal sympathy for their grief being demonstrated that morning.
-----------------------------------------------
II. Arizona Rules of Criminal Procedure, Rule 9.3.b . Exclusion of witnesses and spectators
b. Spectators. All proceedings shall be open to the public, including representatives of the news media, unless the court finds, upon application of the defendant,
that an open proceeding presents a clear and present danger to the defendant's right to a fair trial by an impartial jury.
A complete record of any closed proceedings shall be kept and made available to the public following the completion of trial or disposition of the case without trial.
----------------------------------------
III. Pre-trial secrecy and Rule 9.3.
JSS ordered the unsealing of bench conference transcripts a few weeks after the first sentencing phase mistrial, only to reverse herself a week or so later by ordering the transcripts be resealed as their availability might taint the jury pool for PP2.
The court-imposed secrecy of PP2 proceedings began then, that secrecy demanded by the DT and predicated on their oft-repeated assertion that trial publicity had prevented the defendant from receiving a fair guilt phase trial, and unless adequate measures were taken, threatened to deprive her of a fair penalty retrial.
Nurmis August 2013 motions (change of venue, jury sequestration, individual voir dire) were intended to reinforce the publicity -related issues the DT had from the very beginning been laying down as groundwork for later appeals.
On September 16, 2013, JSS ordered that mitigation witness names (the DTs witness list) be filed under seal. On October 1, 2013 JSS ruled that the scheduled October 4 and 18 pre-trial hearings be closed to the public, saying explicitly that open court would present a clear and present danger to the defendants right to a fair trial, and that given intense media coverage, there is no less restrictive measure than closure. JSSs ruling was based squarely on her interpretation of Rule 9.3
Approximately one month later, on November 4 and 19, 2013, two secret hearings were held about the threat to the s due process rights posed by pre-trial publicity. The hearings were to be kept so secret that JSS ordered the court clerk to scrub the courts public minute entry website docket of any mention the hearings had even taken place.
Part of what JSS ordered during the November 19, 2013 hearing , though, can be known by inference from the transcript of bench and chamber hearings on October 30th 2014, and from Nurmis argument to the Court of Appeals that the court remain sealed for CMJAs testimony.
By inference, then: on November 19, 2013, JSS agreed with the DTs argument that Rule 9.3 allowed her to clear the media and public during proceedings in which CMJAs mitigation witnesses testified. She did NOT commit to clearing the court for any of the DTs mitigation witnesses. Rather, she stated then that she MIGHT invoke the Rule, should circumstances warrant her doing so.
The circumstances the DT claimed dire enough to warrant evicting the media and public from open court seems to have been their assertion that mitigation witnesses wouldnt agree to testify unless shielded from the public. That claim was factual. The second prong of their argument was about legal consequences. The DT argued that a denial by JSS of the DTs request to close court to accommodate the intimidated witnesses was legally equivalent to precluding mitigation, and thus would deprive CMJA of her due process constitutional rights.
In turn, the necessity of shielding witnesses the DT asserted was predicated on the DTs factual representation that defense witnesses were actually being threatened.
JSS hadnt been convinced enough in November 2013 that the existence of any such threats merited granting the DTs request for closure outright. Did her order to close the court on October 30, 2014 indicate the circumstances that day were what she had previously said might warrant sealing the court to protect CMJAs due process rights? The answer is--yes and no.
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