Sentencing and beyond- Jodi Arias General Discussion #2

[Caylee Advocate]

#‎JodiArias‬ pending matter: Motion to Disqualify the Court of Appeals

You can see the complete document on AZ Court of Appeals. Arias' case is 1 CA-CR 125-0302. Tennie Martin is not listed as her lawyer anymore. Margaret Green, Esq. AZ Bar 11222 and Cory Engle, Esz. AZ Bar 21066 (both public defenders) are listed as counsel.

 

[krkrjx]

She can waive her right to a direct appeal (to the COA), but that doesn't appear to be what her atty is requesting.

Arias isn't dictating appeals strategy, so there should be a modicum of sanity in how the appellate process unfolds.

It doesn't make any sense that the motion is related to the COA's ruling on her unconstitutional secret testimony. Leaving everything else aside, the COA's forced involvement happened during the penalty phase, and the issues Nurmi raised all related her rights to present a "full " mitigation case, given that the DP was on the table.

She didn't get the DP, and a Superior Court judge, not a jury, handed her the LWOP sentence. On what grounds could she possibly appeal for a lesser sentence, much less claim the COA as a whole should be disqualified from hearing an appeal related in part to sentencing?

I'm guessing the motion is related to the article written by COA Judge Kent Cattani, in which he stated that Arias' guilt "was never in doubt," and that the "only question " in the case was whether she would be given the DP.


Three COA judges will be assigned at some point to handle her appeal. Seems logical that her Atty can't ask for Cattani to recuse himself if he hasn't even been assigned yet, so maybe the motion is a pro forma objection in advance to having Cattani hear her appeal about the original verdict.

You are on the ball, as usual. What you say makes perfect sense and if they are hoping to have that judge precluded, I am all for it. We do not need any grounds for their decision being overturned on a claim of bias.

It would make sense that they would appeal the guilty verdict first, then the sentence. I think they would be separate appeals especially given how each phase of trial was drawn out and made even more complex than necessary by the defense--a tactic that I believe will now come back to bite them where it hurts if they try to claim she did not get a fair trial.

 

[Caylee Advocate]

Wishing all of you Grandparents a very special day, enjoy and special hugs to you all.

 

[Hope4More]

You are on the ball, as usual. What you say makes perfect sense and if they are hoping to have that judge precluded, I am all for it. We do not need any grounds for their decision being overturned on a claim of bias.

It would make sense that they would appeal the guilty verdict first, then the sentence. I think they would be separate appeals especially given how each phase of trial was drawn out and made even more complex than necessary by the defense--a tactic that I believe will now come back to bite them where it hurts if they try to claim she did not get a fair trial.

There aren't separate appeals for conviction and sentence. The process (given LWOP, not DP):


1. Must file for direct appeal to COA (she did, in May).

This appeal will focus on the legal integrity of her original conviction. The goal would be to have that conviction overturned, etc. , which if successful would vacate her sentence.

Again, given that she received LWOP, I can't imagine what grounds she has to make any separate assertions to the COA that her sentencing was tainted in any way.

2. She can appeal the COA's eventual decision to the AZ Supreme Court, but they aren't obligated to do much more than swat her away.

3. She can apply for Post-conviction Relief, which can relate to either conviction or sentencing. Good luck with that, since those procedings are overseen by a Superior Court judge.

4. Last, she can petition a US District Court for a Writ of Habeas Corpus. Again, good luck with that, since the only grounds for filing a Writ are that her federal Constitutional rights were somehow violated.


(Adding...I remember that AZL saw only one theoretical point of vulnerability in the conviction process, and that related to the pre-trial muddle of establishing gun first or last, since the gun- last argument was used as grounds to seek the DP. As I recall, though, AZL believed that issue was adjudicated sufficiently at the time, and wouldn't make for a successful appeal.




She's not going anywhere. The show is truly over.

 

[krkrjx]

There aren't separate appeals for conviction and sentence. The process (given LWOP, not DP):


1. Must file for direct appeal to COA (she did, in May).

This appeal will focus on the legal integrity of her original conviction. The goal would be to have that conviction overturned, etc. , which if successful would vacate her sentence.

Again, given that she received LWOP, I can't imagine what grounds she has to make any separate assertions to the COA that her sentencing was tainted in any way.

2. She can appeal the COA's eventual decision to the AZ Supreme Court, but they aren't obligated to do much more than swat her away.

3. She can apply for Post-conviction Relief, which can relate to either conviction or sentencing. Good luck with that, since those procedings are overseen by a Superior Court judge.

4. Last, she can petition a US District Court for a Writ of Habeas Corpus. Again, good luck with that, since the only grounds for filing a Writ are that her federal Constitutional rights were somehow violated.


(Adding...I remember that AZL saw only one theoretical point of vulnerability in the conviction process, and that related to the pre-trial muddle of establishing gun first or last, since the gun- last argument was used as grounds to seek the DP. As I recall, though, AZL believed that issue was adjudicated sufficiently at the time, and wouldn't make for a successful appeal.




She's not going anywhere. The show is truly over.

True, that!

I don't see her saying her sentencing was tainted, unless she tries to point the finger at a crying baby. Of course, that will not go anywhere but I'd like to see carp that can go nowhere actually be filed--I want her to be told as often as possible that she is DENIED.

I thought she might try to claim her penalty phase was tainted, partly because the CoA totally ignored her specialness and would not allow her to testify privately.

I know she is not going anywhere but appeals will be filed, as they should be. I would not put it past her to claim either of the above on top of other forms of grasping at straws.

Get over yourself, Killer. A new pair of canvas shoes and the occasional new pair of undies are likely to be the high points of your existence from here on out.

 

[LinTX]

A little more info on the motion shows up today. It now reads:




So it was on the calendar for Sept 11th, but I was unable to find any info beyond the scheduling. I was able to locate a little info on COA Department M in another ruling:

The matter was referred to Department M, the court's panel designated to consider jurisdictional defects and procedural motions. We issued an order inviting appellees to file a memorandum on the jurisdictional question.

 

[Luvrosco]

Thanks,LinTX, but what does this mean?

 

[Hope4More]

Thanks,LinTX, but what does this mean?

I’m really curious what this motion to disqualify means! Couldn’t find much info on Dept M, but did see that “jurisdictional” issues typically relate to the timeliness of filing an appeal, which doesn’t apply here, as an appeal was filed within 30 days.

It’s been a very long while, so I reread the COA’s written ruling, looking for any clues. Appellate Judge Cattani wrote the possibly problematic article about CMJA. He was not, however, on the panel of judges who decided against CMJA in the COA’s special action ruling (judges were Portley, Orozco, and Randall ).

Knowing what might be legally relevant in the COA ruling is way way above my paygrade, but I took a shot at it anyway. In their ruling the COA asserted that:

1. It was within their discretion whether or not to accept jurisdiction of the special action (media asking for a stay of Stephen’s ruling).

2. That they did not need to decide any constitutional issues in order to make their ruling, and ultimately did not, instead relying upon AZ Criminal Code.

3. Their decision was based on analysis of whether or not a “clear and present danger” existed that merited clearing the courtroom of media as well as spectators.

4. They interpreted JSS’s decision to clear as one arising from her concern that “an appellate court could later determine that CMJA didn’t voluntarily wave her right to present mitigating evidence.”

5. The COA explicitly stated that this concern did NOT meet the standard of a “clear and present danger” to CMJA’s trial rights.

6. The COA further stated that even if CMJA refused to testify, mitigation could be presented using evidence from the guilt phase and first penalty phase trials. It was in this section of reasoning the COA stated that a defendant who testified in open court during the guilt phase couldn’t decide not to testify in the PP.

7. One footnote might be of interest: “Although Arias argued to the trial court that her refusal to testify might not be voluntary, nothing in the special action record reflects that she would waive her right to present any mitigation if the proceedings are not closed.”

Obviously, CMJA did indeed refuse to take the stand again, and IIRC, AZL was pretty sure that one of the docs presented to JSS and sealed was the testimony CMJA would have given if the court had remained closed.

So…..an uneducated guess. IF the motion to disqualify the COA isn’t some meaningless and arcane procedural thing, or about asking Cattani to recuse himself, or a bid to bypass the COA altogether and go directly to the AZ Supreme Court, maybe the appellate atty is arguing that CMJA did not voluntarily decline to present mitigation evidence, and that the COA as a whole shouldn’t be allowed to review her appeal because of this previous ruling.

I still don’t see how it makes any sense to bypass the COA on any grounds, unless CMJA has indeed decided to expedite her state-level appeals in the misguided hope that a federal circuit court would be more sympathetic to claims of constitutional violations.


Looking forward to any answers you've come up with, Lin TX. Your research ROCKS!

 

[LinTX]

Thanks,LinTX, but what does this mean?

Other than it was heard on Sept 11th, heck if I know :gaah:

But just from reading what I could find on Dept M, it seems to me to be more than just disqualifying one COA judge. Maybe they'll post an opinion before too long? Other DeptM rulings had to do with arguments of interpretation or intent of statutes relating to actions or rulings by the COA. In one case, it said the motion should be handled as a Special Action, another overruled the COA's rejection of an appeal due to untimely filing, one affirmed COA refusal to postpone a hearing for an out of state attorney, etc.

The other thing I noticed is that there are COA staff attorneys that are appointed to handle "defined non-dispositive motions". A non-dispositive motion is described as: "If the ruling is on some incidental question that arises during the litigation, it is a nondispositive motion". Some motions re: timing and transcripts in this case were handled by the staff attorney. But this one is assigned to be heard by the Motion Department, which may mean it's actually arguing that the COA does not have jurisdiction or should dismiss for some reason. It would be something that affects the disposition of the case, from what I'm reading. But then, I suppose asking that they not assign a specific judge to a panel might fall under "dispositive"? Think I'll shut up and go back to the beginning "heck if I know"...

Hope4More: the problem I see with it having to do with that ruling is that the AZ Supreme Court was asked to review the COA decision and declined to hear it.

 

[Hope4More]

Other than it was heard on Sept 11th, heck if I know :gaah:

But just from reading what I could find on Dept M, it seems to me to be more than just disqualifying one COA judge. Maybe they'll post an opinion before too long? Other DeptM rulings had to do with arguments of interpretation or intent of statutes relating to actions or rulings by the COA. In one case, it said the motion should be handled as a Special Action, another overruled the COA's rejection of an appeal due to untimely filing, one affirmed COA refusal to postpone a hearing for an out of state attorney, etc.

The other thing I noticed is that there are COA staff attorneys that are appointed to handle "defined non-dispositive motions". A non-dispositive motion is described as: "If the ruling is on some incidental question that arises during the litigation, it is a nondispositive motion". Some motions re: timing and transcripts in this case were handled by the staff attorney. But this one is assigned to be heard by the Motion Department, which may mean it's actually arguing that the COA does not have jurisdiction or should dismiss for some reason. It would be something that affects the disposition of the case, from what I'm reading. But then, I suppose asking that they not assign a specific judge to a panel might fall under "dispositive"? Think I'll shut up and go back to the beginning "heck if I know"...

Hope4More: the problem I see with it having to do with that ruling is that the AZ Supreme Court was asked to review the COA decision and declined to hear it.

Ok, here's more uneducated guessing...

At this stage appeals are all about legal technicalities.


1. Appellate attorney is arguing any or all of the following: that the COA didn't have jurisdiction to make their special action ruling, that they erred in not considering the constitutional issues involved, that they erroneously assumed CMJA would testify in open court and that her refusal to do so was in fact involuntary, and that prejudice is attached because she was denied her constitutional right to make a full mitigation case, and that had she done so it is possible the jury would have decided upon life rather than deadlocking.



2. In consideration of any or all of the above, that the COA should be disqualified from hearing the portion of her appeal that relates to the penalty phase.


LinTX--The SC declined to hear Nurmi's appeal of the COA ruling, but IIRC, didn't provide any reasoning as to why they declined. It seems possible at least that the legal questions are different now. Back then the issue could be narrowly defined as to whether or not Stephens erred in closing the courtroom, or to COA's definition of "clear and present danger."

Now the question might be, did the COA have jurisdiction to make that ruling? Did they use the appropriate standard as a basis for their ruling? Was her subsequent decision to not testify voluntary or was it fact involuntary?


If there are any grounds for challenging the basis of the COA's rulings in the context of a completed trial, then how could the COA be in the position of making that determination?


But yep, basically, dunno either. Making a batcall to AZL.......

 

[LinTX]

Hope4More, obviously I'm flying by the seat of my pants here and just giving my uneducated opinions too.
JSS went in great detail when she questioned JA about her refusal to allocate on the last trial day - including the fact (JSS asked this question 2-3 times) that her reasons were the same as given originally in Oct. and that she had conferred with her attorneys about it. JA did offer that in her understanding the COA decision was about testimony, and allocution was different, but don't think that will fly, since JSS also advised her that unlike testimony she would not be under oath or subject to cross and again offered her a way to allocute in an empty courtroom. The COA and SC ruled based on that Oct. reasoning, so I can't imagine there being new issues, and she received a lesser sentence than she was subject to at the time of the original appeal. The SC's denial of review is basically saying the COA's decision stands because they see no issues to be considered that were not properly addressed by COA, AFAIK. If the COA did not have jurisdiction, the SC would have mentioned that, right?

 

[Hope4More]

Hope4More, obviously I'm flying by the seat of my pants here and just giving my uneducated opinions too.
JSS went in great detail when she questioned JA about her refusal to allocate on the last trial day - including the fact (JSS asked this question 2-3 times) that her reasons were the same as given originally in Oct. and that she had conferred with her attorneys about it. JA did offer that in her understanding the COA decision was about testimony, and allocution was different, but don't think that will fly, since JSS also advised her that unlike testimony she would not be under oath or subject to cross and again offered her a way to allocute in an empty courtroom. The COA and SC ruled based on that Oct. reasoning, so I can't imagine there being new issues, and she received a lesser sentence than she was subject to at the time of the original appeal. The SC's denial of review is basically saying the COA's decision stands because they see no issues to be considered that were not properly addressed by COA, AFAIK. If the COA did not have jurisdiction, the SC would have mentioned that, right?

The COA ruled on whether or not a specific standard was met that would have allow CMJA to testify in closed court, and said that standard wasn't met. I don't have the stomach to review Nurmi's appeal to the SC, but I'm pretty it was a dissent about those specific grounds. The SC's refusal to hear the appeal was a refusal to deliberate about whatever the specific legal issues were that Nurmi raised.

It is definitely theoretically possible that an appellate attorney(AA) is trying to raise other legal issues that were not addressed in Nurmi's appeal.

As I've said, I can't imagine what grounds an AA would have for essentially requesting that the COA be removed/bypassed for cause. I don't believe it is could be about jurisdiction for the special action, because I don't think the COA would have overstepped its jurisdictional authority. I don't know anywhere near enough about appellate law to know, though, whether or not an AA can try to bypass the COA to ask the SC to rule on the constitutionality of the issues raised, for example, as the COA explicitly declined to do so.

Bottom line to that line of thinking is what in the world could be achieved by trying to go straight to the SC, if that's what is going on. What remedy indeed, since she escaped the DP and was given the lesser sentence, and AZ forbids another retrial of the penalty phase in any case.

I somehow doubt it's possible for an AA to ask that the SC rule on one part of an appeal and the COA on another (guilt phase), so it seems like to bypass the COA and go straight to the SC is to relinquish her right for a direct appeal about the conviction phase of her trial. Can't imagine she'd want to do that, and I'm really sure an AA would advise her that was a terrible idea.

I'd be more willing to believe this is about bypassing the COA if I thought she actually had a huge war chest, enough to pay for competent counsel to take her through a federal appeal. Nope. Don't think she has enough $$ for even a bare bones retainer, much less for the whole enchilada.

So, I'm staying with my uneducated guess that this is some arcane meaningless move, or that it's about having that one judge recused.

 

[Hope4More]

Heads up! AZL responded to the batcall and posted a reply in the legal thread.

 

[Niner]

Heads up! AZL responded to the batcall and posted a reply in the legal thread.

Embrassed... :blush: but could post the link please!! :tyou: in advance!!

 

[Hope4More]

Embrassed... :blush: but could post the link please!! :tyou: in advance!!

:cheer: Hi Niner.... Here's the link: http://www.websleuths.com/forums/sh...on-and-Answer-Thread-*no-discussion*-2/page19


Also, FWIW, I just read on the State vs. FB page that someone asked Beth Karas to weigh in, that she might be reviewing the motion, and that her initial opinion seems to be that the motion is to have all 3 of the COA judges who ruled against CMJA be disqualified.

 

[LinTX]

:cheer: Hi Niner.... Here's the link: http://www.websleuths.com/forums/sh...on-and-Answer-Thread-*no-discussion*-2/page19


Also, FWIW, I just read on the State vs. FB page that someone asked Beth Karas to weigh in, that she might be reviewing the motion, and that her initial opinion seems to be that the motion is to have all 3 of the COA judges who ruled against CMJA be disqualified.

If Beth is correct, there are two panels on which those 3 judges are assigned, and another one with Catani on it - that leaves two panels that could hear it in this quarter. Then the COA assigns judges to panels again for the next quarter beginning Jan1.

What about the appeal on the Flores/probable cause issue, or the one about jail logs. Are they saying that a judge qualified to sit on COA cannot apply the law without some prejudice to JA? Are they jealous of her too? Or maybe they're part of the Mormon cover up conspiracy to blame poor innocent JA...:escape:

 

[Caylee Advocate]

WAYYYY O/T, but funny.








This is all over FB, now I know I am not "completely" nuts, but where I come from Halloween is always October 31st, so no way it could EVER be Friday the 13th. :scared:

 

[LinTX]

There is an entry re: the Motion to Disqualify the Court of Appeals showing a response is due by Monday 9/21/2015. Have no idea who this response is coming from (the State, the COA, JA?)

 

[geevee]

I suppose it's not all that surprising that she's trying to get the CoA disqualified, after all, one of Nurmi's early motions was to get the Maricopa Country Attorney's Office disqualified from prosecuting the case. :facepalm: It's just true to form for her, she'll try *anything*, no matter how inane. I would love to read the filing though.

Oh, one thing I've been wondering this week after seeing Big Bob Bashara's appeal for new trial hearing, will JA also have one, and if so, will cameras not be allowed because everything JA does and says is classified for ears only?

Lin - Doesn't the CoA have to respond since they are the ones named in the motion to disqualify? This is feeling like a merry go round again, like everything JA seems to be.

 

[Hope4More]

I suppose it's not all that surprising that she's trying to get the CoA disqualified, after all, one of Nurmi's early motions was to get the Maricopa Country Attorney's Office disqualified from prosecuting the case. :facepalm: It's just true to form for her, she'll try *anything*, no matter how inane. I would love to read the filing though.

Oh, one thing I've been wondering this week after seeing Big Bob Bashara's appeal for new trial hearing, will JA also have one, and if so, will cameras not be allowed because everything JA does and says is classified for ears only?

Lin - Doesn't the CoA have to respond since they are the ones named in the motion to disqualify? This is feeling like a merry go round again, like everything JA seems to be.

I don't think CMJA is dictating appeals strategy, though I'm sure she believes she'd be better at it than her appointed attorneys.

My latest uneducated guess about what's going on comes from reading a US Court of Appeals ruling on an habeus corpus appeal by Richard Glossip (on Oklahoma death row, execution just delayed by 2 weeks).

It's a really good read, BTW, for anyone interested in how appeals relating to ineffective counsel, etc. are heard, discussed, and ruled upon at the federal level... here's the link:

www.ca10.uscourts.gov/opinions/10/10-6244.pdf

(edited link-sorry. Had posted wrong link).

My take away of relevance here (if I understood correctly) is the Court's insistence that it could not take into consideration any claims of constitutional violations that had not been raised during the state- level appeals process.

Hmm. Based on that, my guess is that her AA doesn't anticipate actually being able to disqualify the COA altogether, and perhaps, not even the 3 judges who ruled against CMJA's Special Action. Perhaps the AA is just trying to fashion a constitutional violations argument related to the COA's role, and entered the related motion to disqualify to ensure the issues were included in the state-level appellate record.