Michael K Jeanes, Clerk of Court
*** Electronically Filed ***
K. Curtner, Deputy
12/14/2014 12:11:18 PM
Filing ID 628965
L. KIRK NURMI #020900
LAW OFFICES OF L. KIRK NURMI
2314 East Osborn
Phoenix, Arizona 85016
602-285-6947
nurmilaw@gmail.com
Jennifer L. Willmott, #016826
WILLMOTT & ASSOCIATES, PLC
845 N. 6th Avenue
Phoenix, Arizona 85003
Tel (602) 344-0034
Email:
jwillmott@willmottlaw.com
Attorneys for Defendant ARIAS
SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
THE STATE OF ARIZONA
Plaintiff,
vs.
JODI ANN ARIAS,
Defendant.
No. CR 2008-031021-001DT
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
(Hon. Sherry Stephens)
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On or about November 10, 2014, Ms. Arias, through undersigned counsel,
pursuant to the rights due her via the Fifth, Sixth, Eighth and Fourteenth Amendments of
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the United States Constitution, as well as Art. II, § 4 and § 24 of the Arizona
Constitution, filed a pleading requesting that the charges against her be dismissed with
prejudice due to the fact that Ms. Arias has recently discovered that the State has
purposely destroyed evidence that was clearly exculpatory and/or mitigating. In this
motion, Ms. Arias also sought out the alternative remedy of asking this Court to dismiss
the States Notice of Intent to Seek the Death Penalty that the State filed against her on
October 31, 2008. In this Motion Ms. Arias also requested that given the ever changing
nature of the case and the evolving scope of the States misconduct, Ms. Arias reserves
the right to supplement this motion as circumstances currently unforeseen dictate. This
motion is necessitated by the fact that a circumstance unforeseen on November 10, 2014,
has now arisen that demonstrates the widening scope of the misconduct undertaken by
the State in this case. In this regard, Ms. Arias would point to the fact that the State never
disclosed the image of the hard drive contained in Mr. Alexanders computer (item
#390633) they made on June 11, 2008, to Ms. Arias. In the attached Memorandum of
Points and Authorities Ms. Arias will expand upon how the widening scope of the States
misconduct further illustrates the need for the case against her to be dismissed with
prejudice or in the alternative that the States Notice of Intent to Seek the Death
Penalty filed against Ms. Arias, by the State on October 31, 2008 be dismissed. In
making this present assertion, Ms. Arias relies upon the authorities she mentioned in her
original motion filed on or about November 10, 2014, the evidence produced at the
evidentiary hearings related to the original motion and the authorities contained herein.
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MEMORANDUM OF POINTS AND AUTHORITIES
I. RELEVANT FACTS
Subsequent to Ms. Arias original filing related to the hard drive (item #390633)
the State, without any support for doing so blamed Ms. Arias former counsel for
destroying evidence. (Phase1). This claim was ultimately negated by the testimony of
Ms. Schaffer and Gilbert McReynolds, both of whom worked on Ms. Arias prior legal
team, and both of whom testified that Counsel for the State was touching the computer in
an effort to find either *advertiser censored* or nude images of Ms. Arias.
Phase 2 of the States attempt to cover up what they had done involved claiming
that a virus had put this *advertiser censored* on the computer, not Mr. Alexander. In so doing
the State ultimately confessed to egregious misconduct of another types because the State
admitted that there was both log links to *advertiser censored* and viruses on the computer at a
time when Detective Melendez had already testified that no such evidence existed during
the first trial. In conjunction with Phase 2, during oral arguments the State then claimed
that Ms. Arias was backing off her original claims of purposeful destruction when in
reality Ms. Arias only expanded her claims to account for the gross incompetence of the
Mesa Police Departments Computer Forensic Unit.
Phase 3 of the States attempt to cover up its misconduct involved making
spurious and unsubstantiated claims that Ms. Arias defense expert Bryan Neumeister
tampered with the evidence, even going so far as to claim he tried to destroy evidence by
using an incinerator program or that he added evidence to the hard drive. Of course
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none of these allegations were true, Mr. Neumeister was doing an investigation of the
States wrongdoings on a working copy of the hard drive referred to as a clone. The
evidence copy is something that the Mesa Police Department has had all along, thus
they were aware not only that Mr. Neumeister didnt destroy evidence but that he
couldnt destroy evidence because the evidence itself i.e. the hard drive is being held by
the Mesa Police Department, though they made claims that they didnt have it. To further
illustrate the false and spurious nature of the claims made against Mr. Neumeister
evidence came to light during an interview with Detective Smith on December 10, 2014
and during the evidentiary hearing held on December 11, 2014. It was learned that the
Mesa Police Department had a mirror image of the hard drive made on June 11, 2008,
that they had not previously provided to Ms. Arias and that found on this drive Mesa
Police Department discovered the log links related to *advertiser censored* cites were on that image as
was evidence of Mr. Alexanders computer having a virus. Thus, the State, at the time
they were making these allegations against Mr. Neumeister, knew that they were false.
However, Ms. Arias fully aware that the allegations were false, for other reasons, did not
know that the image made on June 11, 2008, contained the very evidence they claimed
that Mr. Neumeister had created and/or destroyed thus she was unable to present to the
court how farcical the claims the State was making against Mr. Neumeister actually were.
Other motions will deal with the legal viability of these baseless attacks made upon Mr.
Neumiester being presented to the jury but at issue herein is the States failure to produce
this drive years ago as it would be obligated to and the States current attempt to hold this
drive hostage in exchange for the opportunity to interview Mr. Neumeister
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The importance of this drive as a piece of exculpatory evidence that Ms. Arias had
not had access to is illustrated by the fact that in December of 2009, when an image of
the drive was made for Mr. Dworkin that image contained the events of June 19, 2009.
Meaning the image provided to Ms. Arias was not the most pristine available, that would
have been the image made on June 11, 2008, and while this image was damaged the day
prior by Detective Flores, the damage was certainly less extensive than that which was
done to the image made after the events of June 19, 2009. Of course the reality if Ms.
Arias was aware there was a difference both would have been sought, but as case law
dictates, this factual distinction is without import.
What is of import is that, as it now stands, Ms. Arias has been convicted of a crime
based in large part on the States attacks on her credibility and now, having been
convicted of First Degree Murder, she is attempting to defend her life during a sentencing
phase retrial and is learning that not only did the State engage is malfeasance or gross
misconduct that the State also did not provide her with all the exculpatory evidence.
II. LAW AND ARGUMENT
In her initial motion Ms. Arias cited to Rule 15.1, Arizona Rules of Criminal
Procedure, Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland 373 U.S.
83, 83 S. Ct. 1194 (1963) for the general proposition that she was unable to present
exculpatory evidence to her jury because she was not aware of its existence. Of course
now Ms. Arias is now aware that not only was evidence destroyed based on the conduct
of the Mesa Police Department but that the evidence on the mirror image made by the
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Mesa Police Department was intentionally withheld, when the States legal obligation
required its automatic disclosure.
On December 11, 2014, Division 1 of the Arizona Court of Appeals issued its opinion
in Milke v. Mroz/State (No. 1 CA-SA 14-0108). At issue in this opinion was if Ms.
Milke could be re-tried for the crime of first degree murder after the case against her had
been dismissed for prosecutorial misconduct. Obviously, Ms. Arias is not yet in a
position where double jeopardy is at issue but the correlation between the misconduct in
the Milke case and the misconduct that has infested her own case should be highly
instructive to this court as the patterns of State conduct are eerily similar and are not only
relevant to the withholding of the mirror image made of evidence item #390633 back on
June 11, 2008, but of the claims Ms. Arias made in her original motion.
In this regard the Milke Court, like Ms. Arias, cited to both Brady and Giglio as
authority for the legal reality that the prosecution is required to unilaterally disclose any
impeachment or exculpatory evidence and further emphasized that suppressing
favorable evidence is a violation of due process. Id. at 4. The Milke court went on to
note the particular importance of this disclosure when the credibility of a witness is at
issue and that the credibility of that witness may very well determine guilt or innocence.
Id. at 4. Of course as was laid out in her previous motion, the credibility of Ms. Arias
was a huge issue throughout the trial and was used as a weapon by the State against every
witness whom testified on her behalf.
Later in the opinion, the Milke Court went on to discuss how the States choice to
litigate against Milkes Subpoena of Saldates personnel file was akin to active
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concealment (citations omitted). Of course in the case at hand, not only did the State
actively tamper with evidence but they did not provide Ms. Arias expert with the most
pristine image of the hard drive. Furthermore, the State offered testimony that no
evidence of *advertiser censored* or viruses was found on the hard drive. It would be hard to
fathom how such behavior would not also be deemed active concealment.
Of further import to the motion at hand is the fact that the Milke Court went on to
deem this similar behavior as egregious prosecutorial misconduct that raise serious
concerns regarding the integrity of our system of justice Id. at 5 (citations omitted).
This passage is important because history is repeating itself because, like Ms. Milke, Ms.
Arias was forced to defend herself without crucial information she is entitled to have.
The court further pointed out that the States failure to produce evidence is akin to
suppression. Id. at 8.
III. CONCLUSION
During oral arguments on December 11, 2014, the State implied that Ms. Arias
and her counsel were gleeful about discovering the evidence that the State had
mishandled, deleted, or destroyed evidence, however, nothing could be further from the
truth. Instead, what the State has done in this case should be repulsive to this Court and
any citizen of this country who respects the Bill of Rights. The actions of the State in this
case, as documented in the numerous motions for prosecutorial misconduct Ms. Arias has
been forced to file, document a plethora of actions undertaken by the State that stand in
direct contrast to the rights due Ms. Arias via the Fifth, Sixth, Eighth and Fourteenth
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Amendments of the United States Constitution, as well as Art. II, § 4 and §24 of the
Arizona Constitution. Accordingly, for the reasons mentioned above and those in her
original motion related to the hard drive issue, the charges against Ms. Arias should be
dismissed with prejudice. In the alternative, for the reasons mentioned above any sense
of justice that comports with the death penalty jurisprudence detailed in her motion dated
November 10, 2014, would require that this Court dismiss the States Notice of Intent to
Seek the Death Penalty with prejudice.
RESPECTFULLY SUBMITTED this 14th day of December, 2014.
By: _/s/ L. Kirk Nurmi___
L. KIRK NURMI
Counsel for Ms. Arias
Copy of the foregoing
Filed/delivered this 14 th
day of December, 2014, to:
THE HONORABLE SHERRY STEPHENS
Judge of the Superior Court
JUAN MARTINEZ
Deputy County Attorney
By__/s/ L. Kirk Nurmi ___
L. Kirk Nurmi
Counsel for Ms. Arias
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