SIDEBAR #38 - Arias/Alexander forum

[Love Never Fails]

I just read full denial by Judge Stephens on BK site. She has denied allof Arias motions. Yay!!!! She also did it with much detail. I know Jodi will have a headache tomorrow.

 

[Bernina]

Hey you guys. The motion to take the death penalty off the table is denied


Sent from my iPhone using Tapatalk

WHAT?!?!?!?!! OMG!!!!

 

[YESorNO]

MC Superior Court ‏@courtpio 25m25 minutes ago
State v #JodiArias: Judge Sherry Stephens denied the defendant’s Motion to Dismiss State’s Notice of Intent to Seek the Death Penalty.


Wild About Trial ‏@WildAboutTrial 14m14 minutes ago
Hot off the press! Judge Sherry Stephens ruling in the State v. #JodiArias http://www.wildabouttrial.com/court...ry-stephens-ruling-in-the-state-v-jodi-arias/ …

Jeffrey Evan Gold ‏@jeffgoldesq 8m8 minutes ago
#JodiArias judge denies all DP related motions and counter motions! More on @TheGoldPatrol tonight at 7:30pmET http://www.spreecast.com/events/the-gold-patrol-horrific-jodiarias …

William Pitts ‏@william_pitts 7m7 minutes ago
I'll be posting the entire decision in a second...it's 16 pages.
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William Pitts ‏@william_pitts 5m5 minutes ago
Page 1-4 #JodiArias

https://pbs.twimg.com/media/B7WPMJOCMAAPBEX.jpg

https://pbs.twimg.com/media/B7WPMJOCEAAXKeV.jpg

https://pbs.twimg.com/media/B7WPMJ0CEAAS3NE.jpg

https://pbs.twimg.com/media/B7WPMMACcAItn3m.jpg
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William Pitts ‏@william_pitts 8m8 minutes ago
Pg 5-8 #jodiarias

https://pbs.twimg.com/media/B7WPXA_CEAAC5GW.jpg

https://pbs.twimg.com/media/B7WPXCmCUAAEWEr.jpg

https://pbs.twimg.com/media/B7WPXEnCMAEuSUy.jpg

https://pbs.twimg.com/media/B7WPXJ1CUAEb3oP.jpg
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William Pitts ‏@william_pitts 9m9 minutes ago
9-11 #JodiArias

https://pbs.twimg.com/media/B7WPlooCYAAZReM.jpg

https://pbs.twimg.com/media/B7WPlq4CAAAB7qh.jpg

https://pbs.twimg.com/media/B7WPltLCYAAXVBT.jpg
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William Pitts ‏@william_pitts 10m10 minutes ago
12-14 #JodiArias

https://pbs.twimg.com/media/B7WPzSbCAAAzP5H.jpg

https://pbs.twimg.com/media/B7WPzf_CAAAvDV9.jpg

https://pbs.twimg.com/media/B7WPzieCcAAGWus.jpg
-----------------

William Pitts ‏@william_pitts 13m13 minutes ago
15-16 #JodiArias

https://pbs.twimg.com/media/B7WP5e6CMAAbGwa.jpg

https://pbs.twimg.com/media/B7WP5kXCEAAds7y.jpg

 

[YESorNO]

Jeffrey Evan Gold ‏@jeffgoldesq 12m12 minutes ago
READ RULING: denying #JodiArias motion to dismiss death penalty at http://TheGoldPatrol.com

Dave Erickson ‏@ericksonvision 7m7 minutes ago
Just read the ruling denying #JodiArias' motion to dismiss death penalty. I haven't seen a beating like that since Rocky said "cut me Mick."

The Gold Patrol™ ‏@thegoldpatrol 21m21 minutes ago
BREAKING #JodiArias judge denies all DP related motions and counter motions! More on @TheGoldPatrol tonight 7:30pmET http://www.spreecast.com/events/the-gold-patrol-horrific-jodiarias …

 

[Ricki]

Maybe she waited until court was done to spare us from a JA meltdown and Nurmi and Wilmott shouting OBJECTION



Z


Sent from my iPhone using Tapatalk

 

[Bernina]

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008*031021*001 DT 01/14/2015
CLERK OF THE COURT
HON. SHERRY K. STEPHENS K. Schermerhorn
Deputy
STATE OF ARIZONA JUAN M MARTINEZ
v.
JODI ANN ARIAS (001) KIRK NURMI
JENNIFER L WILLMOTT
CAPITAL CASE MANAGER
RULING
The Court has considered the defendant’s Motion to Dismiss the State’s Notice of Intent
to Seek the Death Penalty Due to Defendant’s Inability to Present a Complete Case for Life filed
September 26, 2014 (with attachments), the defendant’s Motion to Dismiss State’s Notice of
Intent to Seek the Death Penalty Due to Continued Misconduct filed October 1, 2014, the State’s
Objection to Motion to Dismiss State’s Notice of Intent to Seek the Death Penalty Due to
Defendant’s Inability to Present a Complete Case for Life filed October 6, 2014, the State’s
Objection to Defendant’s Motion to Dismiss Notice to Intent to Seek Death Penalty Due to
Continue State Misconduct filed October 10, 2014, Motion to Dismiss State’s Notice of Intent to
Seek the Death Penalty Due to Continue State Misconduct Supplement #1 filed October 24,
2014, the defendant’s Motion to Dismiss All Charges with Prejudice and/or in the Alternative to
Dismiss the State’s Notice of Intent to Seek the Death Penalty due to Recently Discovered
Purposeful and Egregious Prosecutorial Misconduct and Supplemental Containing Exhibit “A”,
both filed on November 10, 2014, the State’s Motion for Discover (Compaq Presario Computer)
filed November 13, 2014, the State’s Motion for Sanctions (Compaq Presario Computer) filed
November 16, 2014, the State’s Motion to Strike (Compaq Presario Computer) filed November
18, 2014, the State’s Objection to Defendant’s Motion to Dismiss All Charges with Prejudice
and/or in the Alternative to Dismiss the State’s Notice of Intent to Seek the Death Penalty Due to
Recently Discovered Purposeful and Egregious Prosecutorial Misconduct filed on November 20,
2014, the Defendant’s Response to State’s Motion for Sanctions and State’s Motion to Strike

===========Docket Code 019 Form R000A Page 1===============

filed November 20, 2014, the Defendant’s Motion for Reconsideration: Motion to Dismiss
State’s Notice of Intent to Seek the Death Penalty Due to Defendant’s Inability to Present a
Complete Case for Life filed November 26, 2014, Objection to Defendant’s Motion for
Reconsideration: Motion to Dismiss State’s Notice of Intent to Seek the Death Penalty Due to
Defendant’s Inability to Present a Complete Case for Life filed December 1, 2014, the
Defendant’s Supplemental Motion to Dismiss all Charges with Prejudice and/or in the
Alternative to Dismiss the State’s Notice of Intent to Seek the Death Penalty Due to Recently
Discovered Purposeful and Egregious Prosecutorial Misconduct filed December 14, 2014, the
evidence presented at the evidentiary hearings conducted on November 21, 2014 and December
11, 2014, the exhibits admitted at the evidentiary hearing (Exhibits 1, 2, 3, 4, 6, 7, 8, 9, 10, 11,
and 12), the oral argument conducted on December 11, 2014, the Objection to Defendant’s
Supplemental Motion to Dismiss All Charges with Prejudice and/or in the Alternative to Dismiss
the State’s Notice of Intent to Seek the Death Penalty Due to Recently Discovered Purposeful
and Egregious Prosecutorial Misconduct filed on December 22, 2014, the supplemental exhibit
to the Defendant’s Motion for Reconsideration: Motion to Dismiss State’s Notice of Intent to
Seek the Death Penalty Due to Defendant’s Inability to Present a Complete Case for Life filed
November 26, 2014 (filed under seal on January 5, 2015), the Supplement to State’s Objection to
Defendant’s Motion for Reconsideration: Motion to Dismiss State’s Notice of Intent to Seek the
Death Penalty Due to Defendant’s Inability to Present a Complete Case for Life (with
attachment) filed January 7, 2015 the Reporter’s Transcript of Proceedings for Testimony of
Lonnie Dworkin dated February 4, 2013, the testimony of John Smith at the penalty phase retrial
on January 8, 2015 and January 14, 2015, the testimony of Detective Esteban Flores at the
penalty phase retrial on January 12, 2015, and the oral argument conducted on January 9, 2015.

Defendant seeks dismissal of all charges against her or, alternatively, the dismissal of the
Notice of Intent to Seek the Death Penalty, claiming there has been purposeful and egregious
prosecutorial misconduct.


Prosecutorial misconduct is not merely the result of legal error, negligence, mistake, or
insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the
prosecutor knows to be improper and prejudicial. State v. Aguilar, 217 Ariz. 235, 172 P.3d 423
(App. 2007). To prove prosecutorial misconduct, the proponent must show : (1) the State’s
action was improper; and (2) a reasonable likelihood exists that the misconduct could have
affected the jury’s verdict, thereby denying the defendant a fair trial. State v. Ramos, 235 Ariz.
230, 330 P.3d 987 (App. 2014); State v. Montano, 204 Ariz. 413, 65 P.3d 61 (2003); State v.
Atwood, 171 Ariz. 576, 832 P.2d 593 (1992). To prevail upon a claim of prosecutorial
misconduct, a defendant must demonstrate that the prosecutor’s misconduct so infected the trial
with unfairness as to make the resulting conviction a denial of due process. Prosecutorial
misconduct sufficient to justify reversal must be so pronounced and persistent that it permeates
the entire atmosphere of the trial. State v. Edmisten, 220 Ariz. 517, 207 P.3d 770 (2009). There

=======Docket Code 019 Form R000A Page 2===============

is a distinction between simple prosecutorial error and misconduct that is so egregious that it
raises concerns over the integrity and fundamental fairness of the trial. State v. Minnitt, 203
Ariz. 431, 438, 55 P.3d774 (2002); Pool v. Superior Court, 139 Ariz. 98, 105, 677 P.2d 261, 268
(1984). Conduct is egregious when the material at issue was highly significant to the primary
jury issue with the potential to have an important effect on the jury’s determination. Donnelly v.
DeChristoforo, 416 U.S. 637, 647 (1974). The prosecutor has a duty to learn of any favorable
evidence known to others acting on the government’s behalf in the case, including the police. It
is the duty of the State as a whole to conduct prosecutions honorably and in compliance with the
law. Kyles v. Whitley, 514 U.S. 419, 437 (1995). The trial judge is in the best position to
determine the atmosphere of the trial, the circumstances surrounding the incident, the manner in
which any objectionable statement was made, and its possible effect on the jury and trial. State
v. Nelson, 229 Ariz. 180, 273 P.3d 632 (2012): State v. Koch, 138 Ariz. 99, 673 P.2d 297 (1983).

The prosecutor has wide discretion in deciding whether to seek the death penalty.
Allowing prosecutors the discretion to seek the death penalty is constitutional. State v. Roque,
213 Ariz. 193, 226, 141 P.3d 368 (2006); State v. Spears, 184 Ariz. 277, 291, 908 P.2d 1062
(1996).

Each allegation of prosecutorial misconduct claimed by Defendant Arias will be
discussed below.
1. Potential mitigation witnesses will not testify. Defendant claims possible mitigation
witnesses will not speak with defense counsel and others will not testify at the penalty
phase retrial for fear of reprisal and/or “cyber*bullying”. Defendant provided
affidavits to support her claim in the attachments to the Motion to Dismiss State’s
Notice of Intent to Seek the Death Penalty Due to Defendant’s Inability to Present a
Complete Case for Life filed under seal on September 26, 2014. In addition, the
Court has reviewed the information provided in the sealed supplements filed on
January 5, 2015 and January 7, 2015. In the defendant’s motion to reconsider filed
November 26, 2014, Defendant Arias argues the decision made by the Court of
Appeals on the special action has inhibited her ability to present a complete defense
of her life since potential defense witnesses cannot testify in sealed proceedings. This
Court disagrees. The ruling issued by the Court of Appeals does not address the
testimony of any witness other than the defendant.

There are many ways to address the concerns expressed by these potential witnesses.
For example, it is possible that testimony of a potential defense witness could be
provided through the testimony of another witness. (See A.R.S. § 13*751 (C), which
provides the prosecution or defendant may present any information that is relevant to
any mitigating circumstance regardless of its admissibility under the rules governing

==============Docket Code 019 Form R000A Page 3=============

the admissibility of evidence in criminal trials.) In fact, that has occurred during the
penalty phase retrial. During the testimony of the defense expert witnesses, Dr.
Miccio Fonsecca and Dr. Robert Geffner, the defendant elicited information obtained
from some of the witnesses listed in the Motion to Dismiss State’s Notice of Intent to
Seek the Death Penalty Due to Defendant’s Inability to Present a Complete Case for
Life, filed under seal on September 26, 2014. Other options are available if a witness
is reluctant or refuses to appear and testify. Defendant could subpoena a witness to
appear in court. See A.R.S. § 13*4071(A)(D). The name of a witness could be sealed
to protect the privacy interests of that witness. Defendant could present information
from potential witnesses through the mitigation specialist. The testimony of
witnesses who testified at the first trial could be provided to the penalty phase jury
through transcripts or the video*recording made by the court’s For the Record (FTR)
system. Alternatively, affidavits and video*taped statements of a witness could be
presented to the penalty phase retrial jury.

The Court finds the defendant has failed to establish any misconduct by the State
throughout the course of these proceedings that has impaired or hindered the
defendant’s ability to present mitigating evidence and/or prove mitigating factors
pursuant to A.R.S. § 13*751(C). The Court finds no ground for dismissal of the
indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.

2. Text messages were not timely disclosed. The State provided text messages sent or
received by the victim in October 2010 after initially indicating to the defendant that
these text messages were not available. Defendant argues there was exculpatory
content within these electronic messages which was contrary to the testimony of
Detective Flores at a hearing conducted in June 2010. As noted in the defendant’s
motion filed October 1, 2014, many of the victim’s text messages and e*mails were
admitted in evidence during the first trial. The defendant has reviewed many of the
victim’s e*mails, text messages and g*mail messages in great detail with her expert
witnesses during the penalty phase retrial. Defendant has failed to establish the
failure to provide the victim’s electronic messages earlier than October 2010 was for
any reason other than the messages were not available due to technological issues.
The Court finds no ground for dismissal of the indictment or the Notice of the Intent
to Seek the Death Penalty based upon this claim.

3. Defendant’s rights were violated by the Maricopa County Sheriff’s Office.
Specifically, Defendant alleges three incidents support her claim. First, Defendant
alleges her jail cell was searched by jail personnel in February 2014. Second, in
February 2014, the mitigation specialist was denied entrance to the jail after taking

============Docket Code 019 Form R000A Page 4=============

the defendant’s drawings with her after a jail visit. Jail personnel deemed the
drawings to be contraband. Finally, in May 2014, a legal document (a photocopy of a
book) was taken from the defendant’s cell during a jail search. Defendant “suspects”
the book was copied and provided to the prosecutor.

These matters were previously addressed by the Court. Defendant cannot show the
searches were other than routine searches conducted as part of security protocols at
the jail. Defendant cannot show any prejudice to her case as a result of these jail
searches. Defendant failed to provide any evidence to support her allegation that the
book taken from her cell was photocopied and/or provided to the prosecutor. With
regard to the mitigation specialist, the matter was resolved within a one week period
and the mitigation specialist was permitted to resume visits with the defendant. See
minute entry dated May 27, 2014. The Court finds no ground for dismissal of the
indictment or the Notice of the Intent to Seek the Death Penalty based upon these
claims.

4. Inconsistent testimony was given by Detective Flores regarding the sequence of
injuries sustained by the victim. The defendant argues it was prosecutorial
misconduct for the prosecutor to elicit testimony from the case agent, Detective
Esteban Flores, regarding the sequence of injuries sustained by the victim at the
Chronis hearing knowing his testimony was inconsistent with the testimony of the
medical examiner. In January 2013, the defendant sought a new probable causing
hearing (Chronis hearing) arguing that the testimony of Detective Flores at trial
warranted a new probable cause finding on the aggravating factor alleged by the
State. The Court denied the request for a new finding of probable cause by minute
entry dated January 10, 2013. Defendant filed a special action with the Arizona Court
of Appeals. The Court of Appeals declined jurisdiction.

During the guilt phase, the defendant cross*examined both Detective Flores and the
medical examiner about the sequence of wounds and the detective’s testimony at the
probable cause hearing in August 2009. During the penalty phase retrial, the
defendant examined both Detective Flores and the medical examiner about these
issues. Detective Flores has testified and explained to both juries the reasons for his
testimony in August 2009. The medical examiner has testified regarding his expert
opinion on the sequence of wounds. It is for the jury to determine the credibility of
witnesses. The defendant fully explored and argued her position on the sequence of
wounds. The Court finds the defendant has failed to show any State misconduct with
regard to Detective Flores’ testimony. The Court finds no ground for dismissal of the
indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.

=============Docket Code 019 Form R000A Page 5==========

 

[YESorNO]

JSS's ruling : (all in one spot and easy to read)

http://cdn-static.wildabouttrial.com/wp-content/uploads/2015/01/stephens-ruling-death-penalty.pdf

I just knew she would come thu!!!!!!!!!

:judge:

:confetti:

arty:

:fireworks::fireworks::fireworks:

 

[Bernina]

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008*031021*001 DT 01/14/2015

5. There was a delay in providing the defendant with the mirror image of the hard drive
to the victim’s Compaq Presario computer created on June 11, 2008. The victim’s
body was discovered in his home on June 9, 2008. The victim’s Compaq Presario
laptop computer was found in the office of his home during the search that followed.
Detective Flores touched a key on the computer with a pen which awakened it from
sleep mode. The computer was impounded as evidence on June 10, 2008. On June
11, 2008, the Mesa Police Department made a mirror image of the Toshiba hard drive
that was on that laptop computer. The State disclosed the laptop computer to the
defense. On June 19, 2009, the laptop computer was turned on and accessed at the
Mesa Police Department during a review*of*evidence meeting attended by attorneys
representing the defendant. The case agent, prosecutor, and defense investigator were
also present during that meeting.

On January 31, 2013, Lonnie Dworkin, an expert witness for the defendant, testified
at the guilt phase trial that he had reviewed items at the Mesa Police Department,
including item #390633, the Compaq Presario laptop computer that belonged to the
victim. Mr. Dworkin testified he received a mirror image of the Toshiba hard drive
for that computer from the Mesa Police Department. According to Detective Perry
Smith, who testified at the evidentiary hearing on December 11, 2014, that mirror
image was created in December 2009. This mirror image contained changes made to
the hard drive when it was awakened from sleep mode by Detective Flores on June
10, 2008 and changes that occurred when it was turned on for review by defense
counsel on June 19, 2009. At the guilt phase trial, Mr. Dworkin explained to the jury
the procedure he followed to forensically examine the hard drive he received in the
E01 file format, including the steps he took to recover lost or deleted folders. He also
explained the method he used to retrieve the internet history. Mr. Dworkin provided
testimony regarding when the laptop computer was accessed on June 4, 2008. See
R.T. January 31, 2013. On February 4, 2013, during cross*examination at the guilt
phase trial, Mr. Dworkin testified he recalled seeing some pornography on the
victim’s computer but he was not asked to look for that type of information. See R.T.
February 4, 2013, page 52, line 3 through page 54, line 3.

During an interview with a Mesa Police Department detective on December 10, 2014,
reference was made to a mirror image of the victim’s hard drive made by the Mesa
Police Department on June 11, 2008. Defense counsel requested a copy of that mirror
image. The State provided a copy of that mirror image to the defendant in December
2014. According to one of the defendant’s expert witnesses, Bryan Neumeister, when
the victim’s laptop computer was awakened from sleep mode on June 10, 2008, the
computer downloaded updates that were not installed until it was turned on again.

============Docket Code 019 Form R000A Page 6==============

This did not occur until June 19, 2009. Thus, the mirror image created on June 11,
2008 should contain the changes made to the hard drive after it was awakened from
sleep mode on June 10, 2008 prior to those changes being installed. There is also an
issue regarding files being over*written. The computer experts working with the
parties are still analyzing the mirror image of the victim’s hard drive made in June
2008.

On January 8, 2015, John Smith, a computer forensic expert witness hired by the
defendant, testified at the penalty phase retrial. Mr. Smith examined the mirror
images of the hard drive created on June 11, 2008 and December 12, 2009 as well as
the original hard drive seized by the Mesa Police Department on June 10, 2008. He
testified he had only 3 or 4 days to conduct a review of the June 11, 2008 mirror
image of the hard drive. He testified he found data sites containing pornographic
links to websites on the Toshiba hard drive. Mr. Smith testified if he had more time
to analyze the hard drive it was possible he could have found more pornography
links. Mr. Smith testified that none of the images he reviewed were an exact image
of the Toshiba hard drive before it was awakened from sleep mode on June 10, 2008.
However, the June 11, 2008 hard drive is the closest exact image. The source
evidence and mirror images of the hard drive created on June 11, 2008 and December
12, 2009 contained the same pornographic data sites. These data sites provide the
historical record to the pornographic sites visited or accessed by that computer. Mr.
Smith testified he found artifacts or remnants of porn in the logs and history files. He
testified he found no pornographic photographs, videos or other pornographic media
on the hard drive. There was no indication data had been manipulated on that hard
drive. Mr. Smith also testified the mirror images of the hard drive he reviewed were
automatically modified or altered by the computer on June 10, 2008 and June 19,
2009 but the data files containing the pornographic links were still present after the
alterations. Mr. Smith testified that the victim’s laptop computer contained numerous
cleaner programs. The goal of these programs is to clean the computer and make it
run more efficiently. These programs clean the registry and internet history and can
be set to run at a regularly scheduled time or can be run manually.

On January 14, 2015, Mr. Smith testified that a modification to a hard drive does not
change the data on the registry tables. No evidence files were deleted and the history
or cookies were not affected when the hard drive was accessed on June 10, 2008 or
June 19, 2009. The files that were modified or overwritten were the operating files.
Defendant claims the failure to provide the defendant with a copy of the mirror image
created on June 11, 2008 prior to December 2014 was an intentional disclosure
violation. Further, Defendant claims that mirror image contains exculpatory

============Docket Code 019 Form R000A Page 7===============

evidence. No testimony was provided at the evidentiary hearing to explain why the
Mesa Police Department provided Mr. Dworkin with a hard drive of the victim’s
computer created on December 12, 2009. The Court has no basis to find the Mesa
Police Department withheld evidence or refused to provide a copy of any evidence to
Mr. Dworkin. To the contrary, a mirror image of the victim’s computer was given to
Mr. Dworkin. As he testified at the trial, the focus of the defense at that time was not
on the pornography contained on the victim’s computer. Rather, the focus was on the
timeline of events that occurred on June 4, 2008. Mr. Dworkin was able to testify
about those matters at the guilt phase trial. During cross*examination at the guilt
phase trial, Mr. Dworkin testified he had been interviewed by the prosecutor about
the pornography on the victim’s computer but it had been two years earlier and he
could not recall specific details or what he had stated during that interview. Exhibit
9 from the evidentiary hearing conducted on December 4, 2014, the Chain of Custody
log maintained by the Mesa Police Department, shows that Detective Melendez and
Detective Rios removed the computer from the evidence room on June 11, 2008,
stating the evidence was out for investigation. Defense counsel and their expert
witnesses received a copy of this log. Mr. Dworkin discussed protocols he followed
for examining hard drives. As a computer forensic expert, he would have been aware
that it is routine for law enforcement to make a mirror image of the hard drive.

Detective Melendez was interviewed by defense counsel prior to trial and testified at
the guilt phase trial and the penalty phase retrial. He was examined about his review
of the laptop computer hard drive. There is no evidence he intentionally hid the
existence of the June 11, 2008 mirror image or failed to provide a copy of the mirror
image created in June 2008. According to the defense expert, John Smith, the content
on the original hard drive (the “source evidence”) and all mirror images is the same
with regard to the pornographic data sites to which Mr. Smith testified. In fact, the
source evidence and June 11, 2008 mirror image are the same.

Defendant argues that failure to provide the June 11, 2008 mirror image could have
affected the jury’s verdict in the guilt phase trial because the State argued during
closing argument that there was no corroboration for the defendant’s claim that she
saw the victim viewing child pornography on his laptop computer. That issue is not
properly before this Court. However, Mr. Dworkin testified at the guilt phase trial he
had seen pornography on the laptop. Thus the defendant had the opportunity to
pursue the issue during the guilt phase trial. The defendant has an expert witness who
testified at the penalty phase retrial about the pornography links he found on the
victim’s computer. The State may present evidence disputing the findings of that
expert. However, the penalty phase retrial jury will have the benefit of the testimony
about the contents found on the victim’s computer hard drive in evaluating the

========Docket Code 019 Form R000A Page 8===============

defendant’s testimony about what she says she observed the victim doing on January
21, 2008 as well as the testimony of the defendant’s expert witnesses.


The original laptop computer and hard drive were disclosed by the State and available
for analysis by defense expert witnesses. The evidence at issue was on the source
evidence (the original hard drive) and mirror images created from the source
evidence. The penalty phase retrial is ongoing. If the defense expert finds additional
evidence after further review of the 2008 mirror image, he can be recalled as a
witness. Dismissal of the notice of intent to seek the death penalty is not an
appropriate sanction for a discovery violation of this nature. The Court finds no
ground for dismissal of the indictment or the Notice of the Intent to Seek the Death
Penalty based upon this claim.

6. Social media postings by the case agent’s wife prejudiced the defendant. Defendant
alleges the case agent, Detective Flores, provided non*public details about the case to
his wife who “tweeted” her opinions on social media. In addition, Detective Flores’
wife supposedly posted a video on You Tube which Defendant Arias describes as a
mock movie trailer about the case. Defendant also provided copies of other social
media exchanges in which the parties discussed trial matters including a claim that
the defendant had a buddy write for her “in prison to create evidence for her story.”
See attachments to Motion to Dismiss State’s Notice of Intent to Seek the Death
Penalty Due to Continued State Misconduct, Supplement #1 filed October 24, 2014.
No testimony was provided at the evidentiary hearing regarding these claims.
Defendant relies on the attachments to her motion filed on October 1, 2014 as support
for her allegations. The Court has reviewed those attachments.

The Court finds the defendant has failed to establish that Detective Flores provided
information to his wife about the case that was not public information. The
attachments to the motion indicate Ms. Flores stated there “was much condemning
evidence and situations that most ppl (sic) never heard by watching the trial,”
discusses the dismissal of a juror, and discusses a court assistant who allegedly made
a derogatory statement about the prosecutor. The Court previously made a record
about the matter involving the court assistant. The statement supposedly occurred in
the courtroom, not a sealed proceeding. The court assistant denied making the
statement. Whether there is any truth to the other statements purportedly made by the
detective’s wife in her posts is unclear. The Court does not take lightly the allegation
that Detective Flores provided non*public information to his wife about the case.
Detective Flores has testified numerous times about a variety of issues related to this
case. Defense counsel has not questioned him about these matters or provided any
other evidence that would permit this Court to find he violated any court orders.

=============Docket Code 019 Form R000A Page 9=============

Additionally, some of the information referenced in the attachments may have been
discussed in open court and thus there was no violation. There have been numerous
court hearings on this case, including hearings in chambers and sealed hearings. This
Court cannot recall all of the details of those hearings. Without transcripts or
testimony by individuals present at those hearings, this Court has insufficient
information to find a violation of the court’s orders.

The Court is unaware of any legal reason the detective’s wife should be restricted
from providing her opinion or commenting about the case on social media. Even if
the court had evidence that Detective Flores had discussed matters from a sealed
proceeding with his wife, Defendant has failed to show that it affected her case in any
way. The penalty phase retrial jurors were questioned about any prior knowledge of
the case including information obtained through the media. None of the jurors
indicated any knowledge about these social media exchanges. Defendant does not
allege how her case was prejudiced by these incidents. The Court finds no ground for
dismissal of the indictment or the Notice of the Intent to Seek the Death Penalty
based upon this claim.

7. Detective Flores allegedly commented or provided information to the press about the
dismissal of a juror. No testimony was provided at the evidentiary hearing about this
claim. Exhibit G to the defendant’s motion filed on October 1, 2014 contains a social
media message allegedly from the detective’s wife referencing a conversation with a
juror that occurred in chambers. It is unknown how the information was provided to
Ms. Flores. Defendant presumes the information came from the detective. Defendant
does not allege how her case was affected by the social media statement. Even if the
detective had discussed a sealed matter with his wife, Defendant has not shown that
her case was affected in any way. The jurors empanelled for the penalty phase retrial
were questioned about any knowledge about the case and none of them referenced
any knowledge of this incident. Based upon the information provided, the Court
finds no ground for dismissal of the indictment or the Notice of the Intent to Seek the
Death Penalty based upon this claim.

8. The Maricopa County Sheriff made harassing comments about the defendant to the
media. Defendant claims the Maricopa County Sheriff responded to media inquiries
about a pleading allegedly filed by the defendant and those responses were intended
to harass the defendant. A document was filed with the federal court alleging
violations of law relating to Defendant Arias. The document, purportedly filed by or
on behalf of the defendant, alleged various ways Defendant Arias had been
improperly treated while in custody. The media apparently contacted the Maricopa
County Sheriff seeking his response to the allegations. The sheriff denied the


===========Docket Code 019 Form R000A Page 10===============

 

[Bernina]

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008*031021*001 DT 01/14/2015

allegations in the document. It is unclear whether the sheriff viewed any document
prior to speaking with the media. However, the sheriff told the media that inmates
are not required to state the pledge of allegiance in order to receive meals. The
sheriff also stated he had no knowledge of a Hepatitis C infection at the jail. He
denied that the defendant was videotaped while in the restroom and that he or his staff
had intercepted letters from or to the defendant and provided them to the media. The
sheriff also denied the allegation that the defendant was denied medical treatment
while in the jail.

Defendant now asserts she was harassed by the sheriff’s comments. This situation
occurred after the first trial and before the penalty phase retrial began. Defendant
does not suggest that any information provided by the sheriff was inaccurate or
misleading. During jury selection, the potential jurors for the penalty phase retrial
were questioned about their knowledge of the case and any media coverage of the
case. The defendant had an opportunity to question each potential juror about this
incident. Knowledge of this incident was not reported by any of the jurors selected
for the penalty phase retrial. Defendant has not shown any prejudice to her case from
this incident. The Court finds no ground for dismissal of the indictment or the Notice
of the Intent to Seek the Death Penalty based upon this claim.

9. Detective Flores “awakened” the victim’s computer from sleep mode on June 10,
2008 resulting in the destruction of potential evidence. Defendant alleges that
Detective Flores’ actions in waking the computer from sleep mode at the crime scene
caused changes to the hard drive of the victim’s computer, destroyed potential
evidence, and violated the written policy of the Mesa Police Department regarding
handling seized computers. See paragraph 5 above. The State is required to disclose
any exculpatory evidence that is favorable to the defendant and which may create a
reasonable doubt in juror’s minds regarding the defendant’s guilt. See Strickler v.
Greene, 527 U.S. 263, 281 (1999); State v. Montano, 204 Ariz. 413, 424, 65 P.3d 61,
72 (2003), Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S.
150 (1972). Failure to adhere to this requirement whether willfully or inadvertently
by suppressing favorable evidence violates a defendant’s due process rights. See
Brady, 373 U.S. at 86 and Giglio, 405 U.S. at 155. Based upon the testimony
provided at the evidentiary hearing, the Court finds the defendant failed to establish
that any exculpatory evidence was withheld or intentionally destroyed by the State
when Detective Flores awakened the victim’s computer from sleep mode at the scene
of the crime. Detective Smith testified at the evidentiary hearing that changes to files
made when a computer is brought out of sleep mode may go to unallocated space on
the computer. Some files may be over*written. In this case, the State made a mirror
image of the victim’s computer the day after it was seized and again in December

========Docket Code 019 Form R000A Page 11====================

2009. A copy of the mirror images has been provided to the defendant. At the
penalty phase retrial, John Smith testified that the victim’s computer contained
numerous anti*virus programs that regularly erased files from the victim’s computer.
The relevance of the victim’s computer at the penalty phase retrial, according to the
defendant, is to corroborate the defendant’s claim that she saw the victim viewing
pornography in January 2008. Mr. Smith was able to locate such links on data sites
found on the victim’s computer.

There is no evidence establishing relevant, material data was deleted from the
victim’s computer or that material evidence was destroyed. Some files may have
been updated and/or over*written. (Computer files for I*tunes and Southwest Airlines
were used as examples at the evidentiary hearing. Mr. Smith testified that the
overwritten files were operating files). Defendant failed to show how she was
prejudiced by the computer updating these files. As discussed above, at the guilt
phase trial, the testimony elicited by the defendant related to the events of June 4,
2008. The computer contained the information necessary to establish those facts. The
parties are still in the process of analyzing the mirror image of the victim’s hard drive
made on June 11, 2008. Defendant has already presented such evidence to this
penalty phase retrial jury. Regarding the effect on the guilt phase trial, that issue is
not appropriately before the court at this time.

Regarding the violation of Mesa Police Department Policy, Detective Flores and
Detective Smith testified that it was not a violation of policy for Detective Flores to
awaken the computer at the crime scene. However, Detective Smith acknowledged
the better practice would have been to remove the power source since cache files can
be deleted when a computer is awakened from sleep mode. See testimony of
Detective Perry Smith, December 11, 2014. Detective Flores testified on January 12,
2015 that it was common practice in 2008 for police seizing a computer to awaken it
from sleep mode. He was unaware that doing so could result in the modification of
files on the computer. Even if there was a violation of Mesa Police Department
policy, dismissal of the charges is not the appropriate sanction under the
circumstances of this case. The Court finds no ground for dismissal of the indictment
or the Notice of the Intent to Seek the Death Penalty based upon these claims.

10. Evidence was possibly destroyed when the victim’s computer was accessed on June
19, 2009. Detective Flores and the prosecutor were present when former defense
counsel for the defendant viewed the victim’s computer on June 19, 2009. Turning
on the computer at that time changed the hard drive on the victim’s computer. The
Mesa Police Department made a mirror image of the victim’s computer on June 11,
2008, the day after the victim’s computer was seized. Any changes that were made to

===========Docket Code 019 Form R000A Page 12==================

the hard drive as a result of turning on the computer without a write blocker on June
19, 2009 will not affect the content of the mirror image created on June 11, 2008.
The Court finds no ground for dismissal of the indictment or the Notice of the Intent
to Seek the Death Penalty based upon this claim.

11. Prior attorneys for the defendant were ineffective. Defendant claims her former
attorneys were ineffective on June 19, 2009 when they permitted the victim’s
computer to be turned on without proper precautions being taken to preserve evidence
on that computer. As noted in paragraphs 5 and 10 above, a mirror image of the
victim’s computer hard drive was made on June 11, 2008. Any error that occurred
because defense counsel accessed the computer on June 19, 2009 was harmless since
the information on the victim’s computer was preserved on that mirror image. The
defendant has not established any prejudice to her case. The Court finds no ground
for dismissal of the indictment or the Notice of the Intent to Seek the Death Penalty
based upon this claim.

12. Detective Melendez testified at trial and the penalty phase retrial that he found no
pornography or viruses on the victim’s computer. Detective Melendez testified at the
guilt phase trial on April 23, 2013 that he examined the internet history on the
victim’s computer and found no adult sites. He testified he looked at the computer
files and found no images of children. At the penalty phase retrial, Detective
Melendez testified he found no pornography or viruses on the victim’s computer.
The defendant has one or more expert witnesses who analyzed the mirror image of
the hard drive to the victim’s laptop computer. Lonnie Dworkin examined the hard
drive to the victim’s laptop computer and testified on behalf of the defendant at the
guilt phase trial. See paragraph 5 above. John Smith testified at the penalty phase
retrial that there were pornography links found on data sites. In addition, he found
viruses or malware on the victim’s computer.

Detective Melendez was subject to cross*examination at all proceedings at which he
testified and can be recalled by the defense at the penalty phase retrial. Defendant
could have called witnesses to dispute his findings at the guilt phase trial. The
defendant presented evidence to the penalty phase retrial jury on this issue. It is the
role of the jury to resolve any factual disputes, evaluate the credibility of witnesses
and determine the significance of the evidence. The Court finds no ground for
dismissal of the indictment or the Notice of Intent to Seek the Death Penalty based
upon this claim.

13. Comments by the prosecutor during a bench conference were insulting and
unprofessional. Defendant alleges the prosecutor made a comment to Defense

=========Docket Code 019 Form R000A Page 13=================

Counsel during a bench conference that was insulting and unprofessional. After the
verdicts were returned from the first trial, bench conferences were unsealed and
information from those bench conferences was publicized by the media. The specific
comment by the prosecutor was publicized.

During the trial, the Court addressed this matter with counsel. The prosecutor
apologized to Defense Counsel. The prosecutor was quick to acknowledge his error
and regret. Nothing inappropriate was said before the jury and there is no basis to
find the prosecutor’s comments affected the guilt phase verdict. The Court found no
other sanction was appropriate under the circumstances. The penalty phase jurors
were questioned about their knowledge of the case and the media coverage. No juror
indicated any knowledge about this incident. The Court finds no ground for dismissal
of the indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.

14. The prosecutor harassed a defense witness. Defendant alleges the prosecutor
harassed an expert witness at the guilt phase trial by suggesting the witness had
inappropriate feelings toward the defendant. This matter was addressed during the
guilt phase trial. The State suggested an expert witness for the defendant had
developed personal feelings toward the defendant and lost his professional
objectivity. The prosecutor referred to a gift the witness gave to the defendant and
the number of visits (12) the witness made to see her as the basis for his questions.
See cross*examination of Dr. Samuels on March 18, 2013. A party is entitled to
explore the bias, credibility and motive of witnesses. The prosecutor zealously
cross*examined the defense expert on these matters. Defense Counsel questioned the
witness about these issues on re*direct examination. The Court finds no basis to
conclude there was prosecutorial misconduct. The Court finds no ground for
dismissal of the indictment or the Notice of the Intent to Seek the Death Penalty
based upon this claim.

15. The prosecutor signed an autograph in front of the courthouse. Defendant claims the
prosecutor’s action in signing the autograph prior to the jury returning with a verdict
during the guilt phase trial was misconduct. This matter was address by the Court
during the guilt phase trial. The prosecutor stated he walked outside the courthouse
and was unexpectedly confronted by someone who asked for an autograph. He was
surprised and complied without thinking about the significance. A photographer
captured the incident and it was published. The prosecutor stated he was no longer
using public entrances to the courthouse to avoid the situation recurring. While it was
a lapse of judgment for the prosecutor to provide an autograph under those
circumstances, there was no evidence this incident affected the verdict. The jurors in

=============Docket Code 019 Form R000A Page 14==============

the guilt phase trial were questioned regularly about media coverage of the trial. No
juror acknowledged seeing or hearing anything about the incident.

The Court finds the defendant failed to demonstrate that the prosecutor’s misconduct
so infected the trial with unfairness as to make the resulting conviction a denial of due
process (State v. Edmisten, 220 Ariz. 517, 524) or that the misconduct was so
egregious that it raises concerns over the integrity and fundamental fairness of the
trial (State v. Minnitt, 203 Ariz. 431, 438). The Court finds no ground for dismissal of
the indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.

16. Reluctance of witnesses to testify at penalty phase retrial. Defendant claims that
potential defense witnesses have refused to participate in the penalty phase retrial
because they fear the prosecutor may make “improper personal attacks in court and
inspire others to attack them outside court.” See page 19, defendant’s October 1,
2014 Motion to Dismiss. A party has the right to challenge the credibility, bias and
motive of a witness unless the court determines the probative value of the evidence is
outweighed by the danger of unfair prejudice or will confuse the issues. See Rule
403, Arizona Rules of Evidence. If the challenge is objectionable, the opposing party
has the right to object and the court will rule. In this case, the prosecutor has
zealously cross*examined the witnesses. The courtroom is open to the public. The
court cannot control what the public and media report about what they observe in the
courtroom. The Court has stated the defendant may request accommodations be
made for witnesses who have concerns about testifying in this case. The Court has
indicated it is willing to consider creative ways to protect the privacy interests of
potential witnesses. For example, the Court has previously permitted the defendant’s
expert witnesses to refer to individuals by their relationship to the defendant without
using proper names. If a witness is unwilling to testify voluntarily, the defendant
may subpoena that witness to testify to assure the jury has the benefit of the
testimony. Alternatively, that testimony could be provided through an affidavit,
videotaped statement or the testimony of the mitigation specialist or another witness.
See paragraph 1 above. The Court finds no ground for dismissal of the indictment
or the Notice of the Intent to Seek the Death Penalty based upon this claim.

17. The cumulative effect of the prosecutorial misconduct resulted in an unfair trial.
Defendant alleges that the cumulative effective of the prosecutor’s misconduct has
created an atmosphere in which the defendant cannot receive a fair trial in the penalty
phase retrial thus requiring dismissal of the charges and/or dismissal of the Notice of
Intent to Seek the Death Penalty. The defendant has filed numerous motions to

===========Docket Code 019 Form R000A Page 15==================

 

[Bernina]

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008*031021*001 DT 01/14/2015

dismiss and made numerous motions for mistrial in this case. Many of those motions
alleged prosecutorial misconduct. The Court ruled on each motion. None of the
motions were granted. Since none of the motions were granted, the cumulative effect
of those allegations does not require dismissal of the charges or the Notice of Intent to
Seek the Death Penalty. This was a long trial, covered by the media from gavel to
gavel. Every action of the defendant, the attorneys, the victim family members, the
witnesses, the court, and court staff were subjected to intense and constant scrutiny.
There may have been errors made, but those errors were not so egregious that they
create concerns about the integrity or fundamental fairness of the trial. See State v.
Minnitt, 203 Ariz. 431, 438, 55 P.3d774 (2002); Pool v. Superior Court, 139 Ariz. 98,
105, 677 P.2d 261, 268 (1984). The Court finds no ground for dismissal of the
indictment or the Notice of the Intent to Seek the Death Penalty based upon this
claim.

IT IS ORDERED denying the defendant’s Motion to Dismiss State’s Notice of Intent to
Seek the Death Penalty Due to Continued Misconduct filed October 1, 2014, the defendant’s
Motion to Dismiss the State’s Notice of Intent to Seek the Death Penalty Due to Defendant’s
Inability to Present a Complete Case for Life filed September 26, 2014, the defendant’s Motion
to Dismiss State’s Notice of Intent to Seek the Death Penalty Due to Continue State Misconduct
Supplement #1 filed October 24, 2014, the defendant’s Motion to Dismiss All Charges with
Prejudice and/or in the Alternative to Dismiss the State’s Notice of Intent to Seek the Death
Penalty due to Recently Discovered Purposeful and Egregious Prosecutorial Misconduct filed on
November 10, 2014, the Defendant’s Motion for Reconsideration: Motion to Dismiss State’s
Notice of Intent to Seek the Death Penalty Due to Defendant’s Inability to Present a Complete
Case for Life filed November 26, 2014, and the Defendant’s Supplemental Motion to Dismiss all
Charges with Prejudice and/or in the Alternative to Dismiss the State’s Notice of Intent to Seek
the Death Penalty Due to Recently Discovered Purposeful and Egregious Prosecutorial
Misconduct filed December 14, 2014.

IT IS FURTHER ORDERED denying the State’s Motion for Sanctions (Compaq
Presario Computer) filed November 16, 2014 and the State’s Motion to Strike (Compaq Presario
Computer) filed November 18, 2014.

===========Docket Code 019 Form R000A Page 16===========


All pages from: http://www.thegoldpatrol.com/uploads/2/8/7/7/28773415/arias-opinon_denying_dp_motions.pdf

 

[BetteDavisEyes]

My apologies if this video has already been posted. Jodi Arias' visage graced my homepage late this afternoon with the link. uke:

http://xfinity.comcast.net/video/jo...555539/Comcast/Today_in_Video?cid=hero_sf_TIV

 

[YESorNO]

Judge refuses to drop death penalty against Jodi Arias

"...n a 16-page ruling released after 4 p.m. Wednesday, Stephens addressed 17 different allegations of misconduct or grounds for dismissal, including Martinez delaying or withholding evidence from the defense, Martinez signing autographs on the courthouse steps and Martinez harassing witnesses on the stand.

To each allegation, Stephens concluded her analysis with the words, "The court finds no ground for dismissal of the indictment or the Notice of the Intent to Seek the Death Penalty based upon this claim."..."

http://www.azcentral.com/story/news...erry-stephens-dismiss-death-penalty/21775951/

 

[YESorNO]

Now.
Can we get on with this retrial without any more motions and with missy's:jail:
so-called mitigation witnesses?

 

[Zuri]

Re: # 13:
The fact that Nurmi or Wilnott filed a Notice to Dismiss over comments made at the bench by JM, during a sidebar, is unbelievable. IIRC, that was when JM said he would kill himself if married to Wilnott or something to that effect. Too funny.

I think they should have filed "A Hurt Feelings" report instead.

 

[YESorNO]

:silly:

https://pbs.twimg.com/media/B7WeDrECYAAGKwj.jpg

:floorlaugh::floorlaugh:

 

[YESorNO]

Link: https://pbs.twimg.com/media/B7WfK7_IAAEVUc0.jpg

Go get-em now JM!!!!!

:juanettes::juanettes::juanettes::juanettes::juanettes::juanettes:

 

[Zuri]

Do you think Nurmi and Willnott will stop filing motions now or will this behavior continue?

 

[YESorNO]

Do you think Nurmi and Willnott will stop filing motions now or will this behavior continue?

I hope so- what else could they have??? But who knows?

 

[Spellbound]

:laughing:

from http://reallybigmeandog.com/author/reallybigmeandog/

 

[YESorNO]

Link: https://encrypted-tbn2.gstatic.com/...KM3mTirQMd2TVYTfsULTeayQR8gRX8Rq_mFhSUYqX5yfx

Link: https://encrypted-tbn0.gstatic.com/...zyzWbeXWYBfGTOaRlh94kubjPcKsk0UipYB5rXP2o3bwQ

Link: https://encrypted-tbn1.gstatic.com/...aZjW_w82qh6lejXaLU6LRo0plSOpPF2D5b7PWplU9Q-9g

:facepalm: