Sentencing and beyond- JA General Discussion #7

[salberg7]

I agree with TexMex on this one. I think JSS artfully escalated the issue to the CofA. The "manipulative" word is on the record (I think this is key); there's been a dry run through the CofA with back up from AZSC; while it was impossible to predict what might do next, she'd already got slapped down by the top of the line court. JSS was doing everything she could to make a non-appealable case. This was just another example.

It was clear JSS wasn't at all taken in by ' lies; she had a hard time, methinks, figuring out how to handle the manipulation. I'm sure JSS totally understood what TA must have gone through, because she was actively experiencing it.

As do I agree with TexMex. This was an extraordinary trial in many respects - a sociopathic defendant, inexperienced defense team, and yes perhaps a judge who found herself unfamiliar with a few issues yet erred on the side of caution.
I have voiced my opinion on this board about the defendant having more rights than the victim and the & her DT more than provided a few instances of this. Yes, this is our justice system and it's the best in the world. CMJA & her posse called the shots, JSS & JM knew it but both played it out perfectly IMO in that the murderer's appeal will be denied.
Don't get me wrong-the endless sidebars and delays made me quite angry and frustrated during the trial, but looking back I feel JSS did her job well. We can all look back to critique it now but we are not privy to information that was sealed and thus unknown to us during the trial that perhaps JSS based her decisions on. Intricacies of the case only the lawyers and defendant were aware of. As an analogy, if case law in Arizona consisted of 25 volumes, Nurmi & Wilmott took an issue from 24 of 25 volumes and literally threw any issue out to see if it would stick. And because of this, JSS had to deal with those sticky issues.
JSS was no Melvin Blevins, that's for sure, but didn't that defendant walk free?
I too think JSS out manipulated the manipulator.

 

[salberg7]

To piggyback on my last post, this was a Death Penalty Capital Murder case. JSS had to "dot her i's and cross her t's".
Just think, if the killer is granted PCR, Judge Sherri will have the pleasure of meeting with "Miss Arias" again.

 

[Hope4More]

Responding to multiple texts above. I give credit to JSS for being a professional, for doing the best she could, and for doing her job well enough that appeal courts won't find reversible error in any of her rulings.

Being a professional means she didn't act on whatever feelings she may or may not have had about the , one way or another. IMO she gave the DT fuller rein than many judges would, and more than the other judge involved in the case did (Judge Duncan), but out of uncertainty and caution, not to correct for her own feelings.

As for sealing the court. Making a judicial error doesn't protect a trial. Error threatens a trial. I again give credit to JSS for being a professional in that situation. She was obligated as trial judge to make a ruling she thought consistent with the law. She is not allowed to deliberately misread or misapply the law for any reason, and I'm sure she did no such thing.

She clearly articulated her reason for closure- that she was concerned an appellate court might find the 's refusal to testify an constitutionally impermissibe "preclusion" of mitigation evidence. The COA, just as clearly, understood that JSS had erred.

1. JSS didn't properly invoke 9.3 as the basis for her closure ruling. No intent there, but IMO it signals she was stressed at the time, not executing some well thought out strategy to outmaneuver or to "manipulate" the DT or .

2. Most key, that JSS didn't have a firm grasp on the constitutional law regarding mitigation, multiple tenets of which the COA pointed out to her in their Opinion.

This was her first DP case, her job performance being watched and critiqued daily, in real time, by many. At PP2 she also had the pressure of being accountable for a very expensive, very high profile trial's just-sentencing phase, the phase I think she felt least comfortable with in terms of understanding and applying the law, and the phase in which reversible errors are most often found during appeals.

BTW, the hearing after the COA reversed JSS bears out that JSS wasn't clear about the law or what the COA was instructing even after the COA issued their stay.

 

[Hope4More]

Left off to the above:


The trial record also speaks directly to the suggestion that JSS deliberately kicked her closure decision up to the COA, for whatever reason.

One of her overriding concerns (other than not committing reversible error) at that point was the process not end in a mistrial due to an insufficient number of jurors. She stated that concern on the record.

All parties knew a Special Action was the only way for the COA to be brought into the retrial before the case was resolved and appeals made. Only the media could bring the Special Action. JSS said on the record of October 30 she assumed the media would request a Special Action of the COA.

All parties knew, including JSS, that there was only one special action the COA could take at that point, that action being a stay of JSS's order for closure. A stay unavoidably meant more delay. More delay meant risking losing jurors.

On Oct 30 JM argued against closure on the accurate grounds closure was unwarranted, and on the accurate grounds that the DT's argument for closure was legally insufficient. He tried. JSS didn't get it.

In argument before the COA, though, JM joined Nurmi in arguing AGAINST the stay; in other words, to let JSS's order to close court and allow secret testimony stand.

Why would he do that? He knew her order wasn't sound constitutionally. What he told the court, ever so briefly and succinctly and asserting victim's rights, was that he wanted no more delays to trial. The COA's stay had already halted trial, by days, as Nurmi took advantage of it to delay further.

JSS accommodated him, I would argue, because she didn't understand the legal rationale for the COA's stay, as evidenced by her response to it on November 3.

Only the & DT stood to gain from the necessary delay occasioned by a COA stay. I don't think there is any basis for believing JSS intentionally involved the COA as a strategy, but speaking theoretically, if that was her intent, then wouldn't she have seized on the COA's stay and cracked down on the DT to get moving?

Instead of seizing, she dithered on Nov 3. What I see in the video then is a tired, uncertain, occasionally testy JSS, who looks a whole lot more defeated than she does triumphant.

JSS did the best she could. Under stress and as a DP newbie, she made a mistake. It was a great big glaring mistake I have no doubt she wishes she hadn't made, if for no other reason than the universal ridicule and disapproval she was subjected to by defense attorneys, prosecutors, judges, and legal analysts from across the country, all appalled by her decision.

Does that mistake alone make JSS a bad or an incompetent judge? That's a more subjective question, and one I'm personally far less interested in than understanding the legal framework of the trial and decisions made.

 

[Niner]

snipped by me... re the COA discussion...

JW: She won’t testify. Said she’s already received death threats about what she hasn’t said yet. Says it will “affect her ability to be honest on the stand…….not her honesty, but to say what she means.” “I can inform the court that a crazy person is trying to visit her.”

LOL! I think JW said the right thing first off - "her abiility to be honest on the stand"... which of course she wasn't!

Thanks a bunch for all what you posted! Very informative when you put it all in one place! :tyou:

 

[Hope4More]

LOL! I think JW said the right thing first off - "her abiility to be honest on the stand"... which of course she wasn't!

Thanks a bunch for all what you posted! Very informative when you put it all in one place! :tyou:

LOL. Slip of the tongue for sure by JW. But a tongue-tied DT is kinda understandable if the decided to pull her refusal stunt on the spot, right after the Alexanders’ VIM statements.

The Oct 30 transcript read like the DT was in fact making it up as they went along, running with what the (might well have) told them during recess as justification: that she felt too threatened by anticipated “hate mail,” and that JSS had agreed to allow mitigation witnesses to testify under seal, so why not her? Disregarding, if so, that JSS had not made any such ruling, but had only said she would consider it if circumstances warrant.

The best lines in the transcript are delivered by JSS (including her tart reply to the ’s ridiculous claim of feeling intimidated by death threats: “Well, you’re in custody. So the physical threat aspect, I would think, would be of limited concern to you.” LOL.

 

[Deleted member 122533]

IMO Stephens out manipulated the manipulator. She ruled in her favor, protecting her rights, knowing an appellate court would soon hear the medias side and reverse her. So what if Jodi thinks she "won" that battle. She lost the war and will lose the appeal as well
Jmo

That sums the situation up perfectly, in my opinion.

 

[Deleted member 122533]

As do I agree with TexMex. This was an extraordinary trial in many respects - a sociopathic defendant, inexperienced defense team, and yes perhaps a judge who found herself unfamiliar with a few issues yet erred on the side of caution.
I have voiced my opinion on this board about the defendant having more rights than the victim and the & her DT more than provided a few instances of this. Yes, this is our justice system and it's the best in the world. CMJA & her posse called the shots, JSS & JM knew it but both played it out perfectly IMO in that the murderer's appeal will be denied.
Don't get me wrong-the endless sidebars and delays made me quite angry and frustrated during the trial, but looking back I feel JSS did her job well. We can all look back to critique it now but we are not privy to information that was sealed and thus unknown to us during the trial that perhaps JSS based her decisions on. Intricacies of the case only the lawyers and defendant were aware of. As an analogy, if case law in Arizona consisted of 25 volumes, Nurmi & Wilmott took an issue from 24 of 25 volumes and literally threw any issue out to see if it would stick. And because of this, JSS had to deal with those sticky issues.
JSS was no Melvin Blevins, that's for sure, but didn't that defendant walk free?
I too think JSS out manipulated the manipulator.

:goodpost: You summed up the frustrations felt by many, including myself, at the pace and delays in the trial. JSS showed the utmost care and patience in order to make sure Arias had no wriggle-room in the future. She is a very smart woman, enduring endless criticism and carping but resolutely exerted great restraint and care. Juan Martinez doesn't thing there are any issues that will result in a successful appeal. JSS's legal expertise will be put under great scrutiny on appeal. The outcome will be of huge interest.

 

[Hope4More]

That sums the situation up perfectly, in my opinion.

Just out of curiosity, what do you base that opinion upon? The opinion of legal professionals that she made a legal error based on (faulty legal reasoning --best case, cowed by the DT, worst case) was literally unanimous, opinion differing only on whether it was just a very significant or truly egregious error.

I've gone through it all blow by blow, and understand (and agree) with that criticism, To believe JSS threw it to the COA means you believe she disregarded her oaths and professional responsibilities to make a ruling she knew to be unconstitutional. Do you believe that?

It is also to believe that despite the concern she (and Nurmi and JM) expressed on the record about additional delays resulting in a mistrial, she made a ruling that she knew would cause additional, perhaps substantially lengthy details. Do you believe that?


I’m interested in any one making a factual case for JSS deliberately making a reversible error, rather than, for whatever combination of reasons, “simply” making a mistake.

 

[Hope4More]

She did lack confidence, that was obvious with all the sidebars she allowed.

However, all judges run into situations on the bench where they are not sure what is the best way to rule, even some very experienced ones have to take the time to look things up. Stephens should have researched this properly before ruling, perhaps asked a more experienced cohort for clarification or about whether she was interpreting the law properly. As it was, she looked weak and indecisive; she never should have let that defendant call the shots...that's how it looked to me and if I saw it that way I am sure other citizens did, too.

I agree that the October 30th ruling in particular, but also the great latitude she gave to the DT all along, made her seem weak, even defense-favoring, to a great many trial observers.

I don’t think she was either of those things, just that she seemed uncertain at times, and had no problem with secrecy---which helps explain why her first, last, and only response to the that day wasn’t H-LL NO.

I also think she genuinely didn’t understand that the ’s constitutional right to “fully actualize her mitigation” did NOT, no matter how many times Nurmi said it, trump the public and media’s rights absent some extraordinarily exigent circumstance, the ’s wanting to control public perceptions of herself not exactly meeting that grave standard.

Why she thought the ’s very active choice to refuse to abide by the rules of court could even conceivably be viewed as “involuntary” is beyond me.

To use a trivializing analogy. The DT’s argument was like saying—a child has an absolute and guaranteed right to eat cake, and a child’s teachers aren’t allowed to interfere with a child’s eating of cake whenever she wants, even if her eating cake in class is disruptive, thus violating the rights of her classmate, because a child’s right to eat cake trumps the school’s right to impose rules on when a child may eat cake.

In reality, though, that while societal and legal consensus holds that children should be allowed to eat cake whenever they want, there are restrictions on that right, because the right of others not to allow children to eat cake at any time is, as a matter of law, superior to the right of children to eat cake whenever they want. The school's right to dictate cake eating, as a matter of law, trumps her right to eat cake as she pleases, and the only exception to the school’s cake eating rule is that a child may eat cake if she’s experiencing a medical emergency that requires a slice of cake to be consumed.

A child, knowing the school prohibits eating cake any time other than lunch, tells her teacher- “I want cake, and I want it now.” The teacher asks her—“are you having a medical emergency that requires a slice of cake be consumed? “

The child replies-“no.” The teacher tells her-“then no, you may not have cake.” The child persists, repeats: “I said I want my cake NOW,” and stomps her feet. The teacher tells her again that she may not eat cake, and that she’ll be given a reprimand if she decides to eat the cake anyway. The child eats the cake anyway. The child receives a reprimand.

School rules about eating cake existed. The child chose not to follow the rules. Deciding to eat the cake, in disregard of the rules and whatever consequences, was a voluntary decision.

As was the ’s decision to not fully actualize her lies on the stand, in full view of a constitutionally mandated open court.

 

[TexMex]

Just out of curiosity, what do you base that opinion upon? The opinion of legal professionals that she made a legal error based on (faulty legal reasoning --best case, cowed by the DT, worst case) was literally unanimous, opinion differing only on whether it was just a very significant or truly egregious error.

I've gone through it all blow by blow, and understand (and agree) with that criticism, To believe JSS threw it to the COA means you believe she disregarded her oaths and professional responsibilities to make a ruling she knew to be unconstitutional. Do you believe that?

It is also to believe that despite the concern she (and Nurmi and JM) expressed on the record about additional delays resulting in a mistrial, she made a ruling that she knew would cause additional, perhaps substantially lengthy details. Do you believe that?


I’m interested in any one making a factual case for JSS deliberately making a reversible error, rather than, for whatever combination of reasons, “simply” making a mistake.

She didn't purposely make a reversible error. She wanted the voluntary/involuntary waiver of rights issue litigated further. It was. The inmate resides in her cage for life. Samantha Alexander personally thanked Judge Stephens.

 

[EquallyDivided]

I believe that regardless of how we all wanted the rulings to sway, JSS erred on the side of caution in every instance. This case was a monster, as was the defendant. I think she was very aware of that from the very beginning, to the extent that probably none of us could possibly understand.

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[Meemaw12]

He did not have Temple privileges at the time he was killed. He met with bishop then later with a disciplinary council before Jodi left Mesa, per the Hughes. Mimi's dad was on that council. Sky invited him to their new baby's blessing in early June and Travis replied he could not attend.

Trying to catch up, noticed this about new baby blessing. A blessing in the church is a public event. Anyone can attend member non member doesn't matter. It is held in the Chapel. If she was referring to a sealing then that is different, it is held in the Temple requiring a recommend. It's possible he couldn't attend because of other plans nothing to do with the Church.

Also nothing said in a disciplinary council meeting is ever discussed out of that meeting with anyone by anyone involved. Now Travis might have told someone what the decision was i.e. Losing Temple recommend, excommunication whatever. But no one in authority would ever speak about it. He would have begun his repentance and in time all blessings of the church would have been restored. He could attend church, just not exercise the Priesthood or attend the Temple.

IMO


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[LinasK]

120°F is very hot for normally hot Phoenix.

Yup! Been there, done that. It's a dry heat vs. humidity, but still very, very hot! On that trip my car was literally having problems every 30 miles- tire blowout, radiator overheated, spark plug wires... My Phoenix cousins usually travel during the summer to get away.

 

[RickshawFan]

LOL. Slip of the tongue for sure by JW. But a tongue-tied DT is kinda understandable if the decided to pull her refusal stunt on the spot, right after the Alexanders’ VIM statements.

The Oct 30 transcript read like the DT was in fact making it up as they went along, running with what the (might well have) told them during recess as justification: that she felt too threatened by anticipated “hate mail,” and that JSS had agreed to allow mitigation witnesses to testify under seal, so why not her? Disregarding, if so, that JSS had not made any such ruling, but had only said she would consider it if circumstances warrant.

The best lines in the transcript are delivered by JSS (including her tart reply to the ’s ridiculous claim of feeling intimidated by death threats: “Well, you’re in custody. So the physical threat aspect, I would think, would be of limited concern to you.” LOL.

Didn't JM also retort with a gem, something to the effect "If she can only tell the truth in a closed court, does that mean she's going to lie if the court is open?"

 

[Hope4More]

She didn't purposely make a reversible error. She wanted the voluntary/involuntary waiver of rights issue litigated further. It was. The inmate resides in her cage for life. Samantha Alexander personally thanked Judge Stephens.

There are only two possible explanations for JSS ruling as she did. Either she thought she was making the correct ruling, OR, she deliberately made an incorrect ruling, aka, judicial error, risking a mistrial.

(BTW, there were no attorneys for the media in the courtroom that day. Bodney wasn't in the court house at all; another attorney for the media was, someone alerted him when the media was told to leave, and he came a'flying in the courtroom to object. In other words, JSS couldn't have known how long it would take for the media to take it to the COA, or even if the media would for sure request a Special Action. No other party could have done so. Another huge risk).

Trial judges don't have the option of asking appeal courts for assistance in making rulings, and appeal courts don't "litigate" issues at all, much less mid-trial. The COA accepted jurisdiction of the media's Special Action and adjudicated it solely on the limited basis of deciding whether or not JSS interpreted the law properly in deciding to seal court. She didn't. Really, it wasn't even a close call.

For me, the deep in the weeds legal stuff is what's of chief interest about the Oct 30 kerfuffle. To recognize JSS made a judicial error isn't about bashing her, it's to try to understand how a cautious judge could make such a basic error.

Ironically, perhaps, IMO it gives her way too little credit to believe she didn't think she was correct in her ruling.

 

[Steve44]

As do I agree with TexMex. This was an extraordinary trial in many respects - a sociopathic defendant, inexperienced defense team, and yes perhaps a judge who found herself unfamiliar with a few issues yet erred on the side of caution.
I have voiced my opinion on this board about the defendant having more rights than the victim and the & her DT more than provided a few instances of this. Yes, this is our justice system and it's the best in the world. CMJA & her posse called the shots, JSS & JM knew it but both played it out perfectly IMO in that the murderer's appeal will be denied.
Don't get me wrong-the endless sidebars and delays made me quite angry and frustrated during the trial, but looking back I feel JSS did her job well. We can all look back to critique it now but we are not privy to information that was sealed and thus unknown to us during the trial that perhaps JSS based her decisions on. Intricacies of the case only the lawyers and defendant were aware of. As an analogy, if case law in Arizona consisted of 25 volumes, Nurmi & Wilmott took an issue from 24 of 25 volumes and literally threw any issue out to see if it would stick. And because of this, JSS had to deal with those sticky issues.
JSS was no Melvin Blevins, that's for sure, but didn't that defendant walk free?
I too think JSS out manipulated the manipulator.

If JSS was so sure she would be reversed by the COA, then she couldn't have believed that not closing it would create an issue on appeal, because she would have clearly understood that it's not possible to find error when you act in accordance with the Constitution. If that were the case, and it would have to be if she did it only as a strategy to let Arias 'think she won', there would be no reason whatsoever to close it in the first place. In the end all it did was waste more time, and she would have to have known that from the beginning, yet have done it anyway. It makes no sense.

 

[Hope4More]

She didn't purposely make a reversible error. She wanted the voluntary/involuntary waiver of rights issue litigated further..

The COA had to infer the basis for JSS’s order to seal court, as JSS didn’t put her finding on the record. What they inferred was that JSS believed CMJA’s refusal to testify presented a “clear and present danger” to the legal integrity of the trial, the only constitutional justification for clearing the court of media and the public.

The reason why JSS believed CMJA’s refusal to testify posed such a threat wasn’t about whether or not her refusal was voluntary or involuntary per se. What JSS seems to have feared is that if she didn’t accommodate CMJA’s refusal to testify in open court she would, by default, be denying CMJA her constitutional right to present the full mitigation case of her choice. In other words, JSS would be impermissibly” precluding” mitigation evidence. Nurmi explicitly warned JSS on October 30 that not sealing the court was just such a preclusion.

As the COA pointed out in their Opinion, CMJA’s refusal to testify during PP2 posed no clear and present danger to the trial or to her due process rights because her testimony during PP2 as a matter of law simply wasn’t required to “fully actualize” her mitigation. Again as a matter of law, there is no set amount of mitigation a defendant is entitled to present during the penalty phase. The COA found that there was plenty enough mitigation available to present, including from what was presented during the guilt phase. The availability of that mitigation evidence meant no prejudice would attach (no harm would be done) if CMJA refused to testify.

The COA also directly slapped down CMJA’s claim that her refusal was “involuntary,” saying that she couldn’t claim it was involuntary after she chose to testify –for 18 days--during the guilt phase. That was a factual determination, one that was JSS’s responsibility to make, and one, it would appear, that eluded her on October 30.

 

[salberg7]

It appears to me that perhaps a few circumstances were presented to JSS in the days prior to the killer's testimony that led to JSS' decision. That hearing, October 30 I believe was the date, also included the killer's mitigation witnesses being allowed to testify anonymously citing the witness' fear of threats to themselves ( our Secret Witness #1 from Australia) and then it evolved into the killer requesting the same rights as that witness. I think, and of course this is my opinion only, that JSS could have been broadsided when JSS only believed the DT were discussing the secret witness and then, probably to create drama because of course she could, the killer informed her DT at the same time that she was invoking the same right as her witness. IMO the killer saw another cause that could possibly delay her trial, and thus introduce the possibility of losing a juror or two that could lead to a mistrial. JSS at that point could have just felt exasperated, forced to decide then and there about closing the courtroom due to Nurmi stating his client would not be able to fully mitigate her circumstances, and JSS realized at that point she needed affirmation from the COA, knowing this would cause a delay but willing to take that chance to have a peer review on the record. I don't think she willingly made a mistake, but erred on the side of caution. It appeared to be another perfect storm initiated by the and her DT, but I am thinking more that it was the killer. Mitigation was a big issue this time around because in the guilt phase CMJA presented no mitigation witnesses and JSS felt (& probably Nurmi too due to the killer's post conviction interview when she said it was her defense team's decision not to call mitigation witnesses) she had to give that consideration this time and then the sociopath figured during the October 30 hearing (or shortly before) she would join her Aussie witness and if the court allowed his deposition to be introduced as secret that she (the killer) could get away with it too.
Again we are not privy to a lot of the information of the trial and in all honesty we can't say for sure why any lawyer did anything. I can't judge anyone's activity in this case but only speculate. Did JSS intentionally mess up? No I don't think so. I truly feel she was not very experienced in DP cases, exasperated and perhaps overwhelmed, and proceeded with caution.

 

[Steve44]

It appears to me that perhaps a few circumstances were presented to JSS in the days prior to the killer's testimony that led to JSS' decision. That hearing, October 30 I believe was the date, also included the killer's mitigation witnesses being allowed to testify anonymously citing the witness' fear of threats to themselves ( our Secret Witness #1 from Australia) and then it evolved into the killer requesting the same rights as that witness. I think, and of course this is my opinion only, that JSS could have been broadsided when JSS only believed the DT were discussing the secret witness and then, probably to create drama because of course she could, the killer informed her DT at the same time that she was invoking the same right as her witness. IMO the killer saw another cause that could possibly delay her trial, and thus introduce the possibility of losing a juror or two that could lead to a mistrial. JSS at that point could have just felt exasperated, forced to decide then and there about closing the courtroom due to Nurmi stating his client would not be able to fully mitigate her circumstances, and JSS realized at that point she needed affirmation from the COA, knowing this would cause a delay but willing to take that chance to have a peer review on the record. I don't think she willingly made a mistake, but erred on the side of caution. It appeared to be another perfect storm initiated by the and her DT, but I am thinking more that it was the killer. Mitigation was a big issue this time around because in the guilt phase CMJA presented no mitigation witnesses and JSS felt (& probably Nurmi too due to the killer's post conviction interview when she said it was her defense team's decision not to call mitigation witnesses) she had to give that consideration this time and then the sociopath figured during the October 30 hearing (or shortly before) she would join her Aussie witness and if the court allowed his deposition to be introduced as secret that she (the killer) could get away with it too.
Again we are not privy to a lot of the information of the trial and in all honesty we can't say for sure why any lawyer did anything. I can't judge anyone's activity in this case but only speculate. Did JSS intentionally mess up? No I don't think so. I truly feel she was not very experienced in DP cases, exasperated and perhaps overwhelmed, and proceeded with caution.

Basically, I agree. I think in general JSS did an excellent job, was largely impartial while being deliberate in her efforts to protect the record against issues for appeal, and therefore could not arbitrarily deny the defense any request as long as it was within the bounds of the law. I also believe she was being particularly cautious because it was her first DP trial and that contributed an element of uncertainty and heightened caution to some of her decisions. I think Nurmi was very aware of this and sought to give JSS every opportunity to make reversible error by continually pushing limits, testing her patience, and that of the jurors, hoping as much for a mistrial as for a lenient verdict.

It was not an easy trial for any of the parties involved, and Nurmi made sure he did not make it any easier for either the prosecution, the judge, or the jury, because it wasn't to his advantage to do so.

In the end, I think JSS simply erred. Yes, it was on the side of caution, and in that sense it is to her credit and character, but it was an error, plain and simple, and as it turned out, a reversible error, just not the kind the defense wanted...