Most of the October 30 transcript, paraphrased and condensed in places, direct quotes are in quotes, commentary free of charge.
Ive missed before the possible significance of Nurmis new (on the record, anyway) argument that CMJAs mental illness must be considered when evaluating her perception of threats and her refusal to testify.
The COA considered this point not at all, which suggests it had no merit legally, but perhaps JSS mistakenly believed otherwise and it played a part in her decision to yield to the DTs request for court sealing.
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JWseal Court.
JSS-why?
JW- cameras and public there will affect how she testifies and her ability to think.
Nurmi-
sealing court is consistent, anyway, with what youve already ruled; youve said our mitigation witnesses could testify under seal and no cameras
JSS-well, I said Id be willing to forbid cameras, but now youre asking me to seal her testimony until post-verdict, correct?
JMyes, theyre asking you clear the whole court, but the criteria to seal court has not been met.
JSS I need to pull out my sheet on this and see what the criteria are.
JW-
It was also listed in the minute entry with regard to the media and our ability to ask for that for our witnesses.
JSS---But I have to make sure that this request meets some requirements. So we are going to take a recess.
Nurmi (Rule) 122 (relating ONLY to cameras in court) Is that the Courts concern?
JSS---No. There is another test that I have to----that I have to pull up.
RECESS.
JSS says they need to make a record, so repeats you are asking that the cameras be turned off and the courtroom closed during her testimony?
JW- Thats correct.
JSS--and the reason for this?
JWability to testify, nervousness, too much publicity, hate mail. Affects her ability to think. People in courtroom include some of the hate-mailers.
JSSPoint them out and Ill have them thrown out.
JW- (Backs down from that unsupportable claim): Well, there isnt anyone specifically, its just the knowledge of the fact that people come in for her then send her threatening postcards.
Nurmi: (IMO, knowing how weak that argument is and that JSS isnt buying it):
Judge, if I mightI think the other issue JW needs to address is if I think in any way CMJAs 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 theyas a preclusion of mitigation because mitigating factors as remorse of the relationshipmitigating factors 3, 5, 6, and 9 in particular would be dampened by the public presence.
Does this make sense? Who knows? But we do know shes mentally ill, even the State has said so.
If her psychological makeup is such she cannot fully actualize her mitigation, then I think we have a problem under Skipper v. South Carolina. 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 notcertainly not absolute but also based on all the other authorities I have cited in the motion too previously
(verbatim quote, the incoherence is his.
JSSJM?
JM: Shes nervous, bottom line, and nothing in case law indicates she has a right or a witness has a right to testify in sealed proceedings just because theyre nervous. (Refers to another case in which the conviction was reversed because the judge sealed the court for an improper reason. What I took from that case is 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.
(
Bodney referred to this distinction as well in his statement to the COA, saying that (JSS) confused the (state, not constitutional) law about excluding cameras from court with the constitutionally based Rule 9.3s requirement of making a finding of clear and present danger.
If Bodney is correct, JSS didnt accidentally forget to invoke 9.3, she actually erroneously based her ruling on the wrong law. In inferring that JSS had properly invoked 9.3, the COA may well have remedied another very fundamental error by JSS).
JM: If the request is no cameras, sure, but this is broader than that. Seal the court because shes nervous, and its my belief this will be overturned on appeal.
((Notenow JSS is hearing a wrong decision means being reversed on appeal by both parties))
JW: Not just nervous. Really. Threats. Scrambled brain. Cant fully mitigate.
Nurmi:
Case law says the Heightened level of due process because of DP means her rights trump the rights of the PUBLIC.
(Note: Arizonas rules and constitution make plain that the rights of the media and the rights of the media are different and are NOT interchangeable).
(JSS focuses next on the physical presence of people in the gallery, JW changes up that argument to, saying yes physical, but more the fact they will walk away with the information she is going to say.
(JSS does the Waller analysis. JW says shes pretty certain CMJA will refuse to testify).
JM: (One of the best lines of the day): IM SORRY. I DIDNT HEAR YOU. (translation- un fricking believable, and I m going to make sure that goes on record).
JSS says I thought her concern was physical presence, JW says no, really about publicity and tweeters and threats, cant say what she wants to say.
JM: what if we seal the proceedings that get reported? Obviously the State isnt reporting it. How is there a link between whatever correspondence she is receiving and keeping the media out of the overflow room?
The media will report, and theyll say sealed proceedings, and that isnt going to stop the mail or hate mail.
The measures beyond what youve indicated are not in any way related to the defendants concern.
JW disagrees, repeats tweets and publicity profoundly affect CMJAs ability to say what she means, etc.
JSS: I cant make a decision based on her concern that she may receive mail in the future in response to something she said in these proceedings.
I
do believe there is legitimate concern that she may feel intimidated by the presence of those in the courtroom because shell be talking about very sensitive matters.
(Note: sure do disagree with THAT assessment, but no harm done
yet).
So, think its appropriate to remove the media and the public to the overflow room. Tell your client, and let me know if there is going to be an issue before I tell everyone to leave the courtroom.
JW returns and ups the ante about CMJA feeling threatened. Now she refers to death threats, not just hate mail, and brings up tales of crazy people trying to visit CMJA in jail. Nurmi backs up the crazy talk about crazy people. JSS moves the crew back to chambers to hear CMJA on the record. Times arent noted on transcript, but this move is noted on page 16 of 34.
CMJA talks threats, JSS is dismissive, says there will be publicity no matter what, nasty mail no matter what, no physical threat and dont read your mail if you dont like whats in it. Says no video or cameras, that should do it.
: Well, not just in the courtroom. Their knowledge of my testimony at all.
JSS: Tell me what your concern is.
: Ive received several threats over the years, lots of crazy people try to visit me in jail, some of the threats are very specific and linked to what I might say. I can give you specifics.
JSS: OK.
: well, some are hateful to Travis and his family and some are hateful to me, it goes both ways, and I cant say what I want in terms of being open and honest because of the pressure from these threats.
(adds: Ive also heard that one of TAs friends wants to shot me between the eyes.
JSS. Well, youre in custody. So the physical threat aspect, I would think, would be of limited concern to you. As for mailif you dont read it, you wont be aware of what it says.
CMJA says but Im just asking for what you said you would do for my witnesses.
JSS: You know the trial is not being broadcast live, that your testimony will be made public after the trial, and that you can conceivably receive threats whether you testify or not?
CMJA: Well, some of my witnesses will be testifying under seal because they wont be willing to otherwise because of how it would affect their lives in the future, and unless promised their testimony and identities wont be released in the future, theyre not willing to testify. Thats my position too, and Im just asking for what youre allowing them.
JSS: I have not yet received any written motions requesting that any of the witnesses statements be sealed, or their testimony sealed, or the proceedings closed.
Weve discussed this in the past, but I havent received any such requests for the penalty phase retrial, and I havent made any rulings.
CMJA. That isnt what I understood about what you were allowing my witnesses.
JSS: You did testify at length in the first trial.
CMJA: Right. And it was because I testified in open court last time that I received hate mail and feel threatened.
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JSS- so its not having people in the courtroom, its the fact theyll hear what you have to say?
CMJA-
yes, that theyll know Im even testifying at all (Note-another moving of the goal posts. Not just a sealed court, but for anyone to know she even testified. Complete secrecy).
Nurmirepeats the crazy people threat, wants to make sure its on the record, gets MDLR to chime in, CMJA does as well.
JSS asks for closings (condensing their statements).
Nurmi: She is not mentally stable.
Her concerns may seem illegitimate to us, but theyre legitimate to her, and because they are they need to be accommodated for her to fully mitigate. All DP jurisprudence says she has that right, and her rights trump the first Amendment and any public access.
And thats what we are really talking about here, the right to attend a trial. The Court was already inclined to clear the courtroom. The issue then seems to be the (overflow room); if she feels intimidated by that, thats enough to grant the motion. If she cant effectively testify and chooses not to, thats preclusion of mitigation.
JM: Prospective concern about something that may happen in the future. They have not met the threshold (presumably of clear and present danger? Though no party uses the term).
Also want to point out the defendant is blaming the media and asking them to be ejected, but at the same time is tweeting, stirring the pot, and using the media to try to manage public perceptions of herself.
(JM also refers to communication between Michael Kiefer and MDLR, suggesting that it isnt only CMJA who is complaining about the media yet reaching out to access and use media for their own purposes.
((As a side note, JM referred to this in some of his book interviews, saying he had never had a case during which the media was so exceptionally well informed throughout, even when hearings and such were sealed and supposed to be kept confidential.
I think JM is convinced the DT deliberately stoked the media flames all along as strategy, to claim publicity prevented her from receiving a fair trial, a theme that ran from day one of the 1st trial to the closing of PP2)).
Sealing isnt warranted, and I have a strong concern this thing will come back if you rule in favor.
Nurmi:
Hes applying the logic to the feelings of a woman he knows to be mentally ill. Were just talking about what little piddly difference here between what you said youre willing to do and what needs to be donejust the closing of one more room, the overflow room.
Preventing CMJA from testifying due to her mentally infirmity is a prevention (think he means preclusion) under Eddings, and that should be of more concern to the State than whatever media exposure they wish to have.
So we would ask the Court to comply and shut down and add the (media overflow room) to (your) previous order, I guess.
CMJA asks to be heard one more time, says its not about people being there. Its about the knowledge people are privy to my testimony. It will affect how I answer the questions.
JM- Is the defendant saying shes going to be untruthful on the stand depending on the composition of the courtroom? That causes me concern, because the truth is whatever it is irrespective of who is in the courtroom. I believe that is what the defendant is indicating.
CMJA- well, Ill always be truthful. It is about am I able to express the truth in the way I need to express it (if Im feeling threatened).
JSS says- OK. I want think about this. It is 20 to 12. Well reconvene at 1:00pm. Ill have a decision then.