Get Used To This

The word ‘denied’, I mean.

Arizona Supreme Court denies review on a Jodi Arias interlocutory appeal.

This is what it’s like trying to get relief from an appellate court.  They’re very, very stingy with criminal defendants, unlike those rare occasions when a prosecutor might appeal something.  Prosecutors win those appeals about half the time.  Most other litigants don’t do nearly that well on appeal, but the disparity is especially huge when one considers that criminal defendant success rates on appeal are in the vicinity of 1% or less.

Put another way, a prosecutor’s chances should he appeal a trial court ruling are about 50 times higher than his opponents’.

Sound fair?  People have been asking me whether I think Jodi Arias got a fair trial.  I’ve said no, and I think her trial was substantially more unfair than the typical criminal trial, but as you might guess from that I think most criminal trials are unfair to the defendant.  The main reason is that judges almost invariably favor the prosecution in a million different flagrant – or more dangerously – subtle ways.  With their veneer of neutrality, they can do much more damage to the defendant’s case than the prosecutor can.  And they usually do.

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45 responses to “Get Used To This

  1. GUILTY beyond a shadow of a doubt

    John: I agree most that appeals process is skewed against defendants. I know there are many cases I have heard and read about that I have been outraged at the unfairness towards a potentially innocent person.

    But are you familiar with the exact circumstances to which this Arias Supreme Court appeal was based? And denied? Yesterday I posted the minute entries to the defense appeal and then the judges denial and reasoning.

    In a 2009 hearing to determine whether there was probable cause to bring the Death Penalty against J Arias, the prosecutor brought evidence to support that the murder warranted a Death Penalty conviction and introduced at said hearing a sole witness – Detective Flores. Flores was brought into to testify to numerous circumstances during his investigation to support the probable cause. During the hearing the detective was asked a question about the sequencing and other issues that related to Dr Kevin Horn’s medical report. Jodi Arias’ OWN attorneys during this hearing objected (rightly in my mind but I do not know full details) that Flores is NOT a medical doctor and therefore his testimony of anything re: Dr Horn’s evaluation -would be hearsay. The judge (not Sherry Stephens) allowed the Detective to testify anyway in some capacity as it related to Flores’ testimony. During his testimony Flores stated he spoke with Dr Horn the day prior. We do not have the exact transcript to know exactly what was being testified to except that Flores later in the trial stated he testified to numerous things that day and “sequencing” was only one small part. But evidently he did testify that in his conversation with Horn – Horn told him the shot came first. Again, no transcript so I am taking the defense on their word that Flores indeed said this, exactly.

    Flash forward to the 2013 trial of J Arias. In January 2013 Detective Flores and Dr Horn testify in front of the jury, in which it is clear the state’s medical examiner testifies as to why he believes Travis Alexander was stabbed first and shot last. The rest of us don’t know it yet but evidently this goes against what Flores said at Probable Cause Hearing in 2009. The defense cross examines Dr Horn, and its a pretty miserable cross examination. Jennifer Wilmott cannot get any traction on the discrepancy as Dr Horn maintains, very credibly that he would never had told Detective Flores the gun shot came first becs it goes against everything in his report. The defense immediately files a motion for mistrial asking the DP to be taken off the table based on the fact that the prosecutor, the detective or the medical examiner is lying and changed the facts of the case after the probable cause hearing in 2009. There is an evidentiary hearing, first in chambers, where defense asks judge to continue the hearing in the courtroom in front of the cameras. Judge Stephens abides. Detective Flores is then called by the defense in the hearing and vigorously questioned where he explains that he obviously was mistaken as to Dr Horn’s opinion as it relates to sequencing but that he also cannot remember much about abt it as it has now been 4 years later. In my opinion, he is credible and believable. I believe Flores made a mistake, a stupid one and did what a lot of people do which is seek out confirmation of his bias. (In 2009 clearly Flores thought shot came first.) Kirk Nurmi is clearly upset and it appears to me as if he has just realized for the first time that the state has switched their strategy. But as the hearing proceeds, the judge seems to be far less concerned than one would expect. Prosecutor Martinez then brings out the issue with Flores about how Arias’ own attys objected to Flores in 2009 hearing discussing anything to do with the medical evaluation as hearsay. Nurmi objects that its not relevant and judge overrules-Flores confirms this did indeed happen.

    Flash forward again and we have this final ruling from the judge (page 26). http://media2.abc15.com/html/pdf/Petition.pdf

    Despite the theatrics in court where Nurmi seemed as if he was coming across this discrepancy for the very first time, It appears that Kirk Nurmi and J Wilmott knew for a full year PRIOR to trial that there was an inconsistency between Detective Flores’ testimony and statements in the 2009 hearing and Dr Kevin Horn’s Medical Report. The appeal was denied due to untimeliness and that even had it been timely the judge said the cruelty aggravator would have been found regardless of what too k place in what order.

    My question to you is, how is the public watching this kind of thing supposed to feel bad for defendants when defense attorneys like this are playing all sorts of sleight of hand games?. Underhanded manipulation does NOT help tell a story about an unjust system, geared unfairly against defendant. Would appreciate your input on this.

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    • Guilty, I appreciate this comment.

      Perhaps not surprisingly, I think you have it exactly backwards. The gamesmanship here, if any was by the prosecution.

      When Flores was testifying at that hearing, it was the prosecutor who was trying to get evidence in about what the ME had found. The defense objected that it was hearsay – don’t have to go into how he’s not an expert, but I suppose that’s another valid ground – and the defense was clearly correct. If you want Horn’s opinion, call Horn, don’t ask Flores what Horn said. Just fundamental.

      So the objection is overruled and the evidence comes in. Please note, that’s the prosecution’s evidence. They wanted it in, and it came in. Wrongly, but it still came in.

      Now it comes time for the trial and they don’t like their own evidence anymore. Turns out, this is a key piece of evidence relevant to the DP issue. Do they get to run away from their own evidence because it suits them now?

      Why, of course. They’re the prosecution. They get all the rulings. If they want to say ‘x’ one day and ‘not x’ another day depending on what they feel is to their advantage in that particular moment, well then the court happily obliges.

      The statement in the opinion at page 26 says that the defense “knew” about the conflict in evidence a year prior to the trial. But that appears to be based only on the fact that they had Horn’s report, not that they had any testimony from Horn contradicting Flores’s account. Apparently, they were supposed to divine from that report that it contradicted what Flores had testified to, but that is fatuous: not only is it a matter of expert opinion, but they were entitled to rely upon testimony that was actual evidence, regardless of how wrongly it had been admitted.

      It might very well be – I’m offering no opinion on this since I did not view the testimony – that Flores was mistaken in his account. That’s not relevant. The evidence as it stood, prior to the trial, was that the shot came first, and it was the prosecution, not the defense, that had offered that evidence and it was admitted. Maybe it was all a big mistake, but the prosecution should have to live with its mistakes anyway, just like the defense is almost always forced to.

      This little anecdote is in fact a good illustration of just the kind of favoritism that is shown to the prosecution, and that can tilt the trial in their favor, even when all the rules of evidence have been disregarded.

      It’s actually a rather disgraceful example of judicial dishonesty. And this is a death penalty case. Imagine how it is in more everyday BS cases that are brought and tried.

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      • I just happened to review the video of Horn’s testimony yesterday. It seems to me that the “hearsay” statements by Flores in the hearing should not only have been inadmissable using the tenants of “hearsay” rule, but then Horn testifies _a year later_ that he never even talked to Flores about “sequence of events”. So whether or not he “misquoted” Horn in his testimony at the hearing is irrelevant since he never really talked to him at all. I believe this put the defense team “between a rock and a hard place” because they had to wait a full year for Horn to actually testify that he NEVER DISCUSSED THIS WITH FLORES in the first place.

        Also, Horn testified in front of the jury that the bullet penetrated the skull with the ASSUMPTION it went through the brain because “it had to”….even though the brain was like jello at that point and he could not tell with certainty that the bullet went through the brain. No mention of course, at this point, about the dura mater being penetrated or not being penetrated. It was just “common sense” (Horn’s) that if the bullet entered here…..and came out here……it _had to_ pass through here. Seems to me that if the bullet did NOT enter through the dura mater it could not have entered the brain and _incapacitated_ TA. THAT is what this all boils down to……..and I don’t know if the defense brings that issue up in the appeal. (that appeal was filed well before Dr. Geffen testified…wasn’t it? or was this a new appeal that included that information?).

        There is also no common sense explanation as to why Jodi would have stabbed him 29 times and then still found the need to shoot him in the head “for good measure”. This leads me back to my original “theory” about what happened…….that Jodi shot him by accident FIRST and he was NOT INCAPACITATED but VERY DAZED AND IN A STUPOR and HE grabbed the knife (after spitting up blood in the sink) and came after her. Because he was in a DAZE from a bullet penetrating his head…….she was able to wrestle with him and grab the knife from him and had no choice but to turn it on him.

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    • HonestAbe

      Clearly, there was a lot of shuffling of evidence to secure a death penalty. Why? Because Martnez knew that he would be able to grandstand and discuss how atravis had to endure close to 30 stab wounds. After all, let’s face it, the strategy that he apparently had was to build up sympathy that, would fill in any gaps in his dynamic theory. But here’s the part that I don’t understand: why did the defense fall into his lair? Why not use the interrogation tapes to discredit Flores? Clearly, he thought she was guilt and he thought the shot came first. Throw question after question at him until he makes a mistake and then rip him apart and declare him undependable. As far as Horn goes, he never came out and stood by his theories 100%. He could not say that the shot came last with 100% certainty. Remember, the body had decayed and he could not answer with 100% certainty that the bullet path may not have deviated. Horn has seen hundreds of murders by gunshot and still can’t say with certainty what may have happened? I will never understand why the defense didn’t bring in a Dr. Baden or even the pathologist that HLN found twho said it made more sense that the gunshot came first. http://www.hlntv.com/article/2013/01/22/what-really-killed-travis-alexander
      This would not only hurt the testimony of Horn, but also the premise laid down by Martinz. For me, it seems that we saw way too much defense effort trying to prove abuse and not enough effort poking holes in the prosecution’s case and the discrediting of the witnesses for the prosecution.

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  2. GUILTY beyond a shadow of a doubt

    John:

    If I had not listened to the testimony during the Jan 2013 hearing, I might agree with you. But the problem is that we do not know the reason behind the judge allowing Detective Flores to speak about Horn’s medical evaluation becs we don’t know what context this was all in. “Get Horn to speak about Horn” seems an obvious, so why would ANY judge allow that? I believe if we had the transcript it might make more sense.
    I believe that Flores was not speaking on BEHALF of Horn but was referencing Horns evaluation for some other reason. And it did not relate to which injury came first. Its always easy to do the quarterbacking after the fact and criticize -but in this case we don’t have the benefit of the full picture. What we DO know is that during the Jan 2013 hearing, Martinez questioned Flores as to whether during the probable cause hearing in 2009 – the PROSECUTOR EVER ASKED HIM ANY questions relating to SEQUENCING of events..what injury came first. (Because if the prosecutor was, as you say, trying to use this info, HE would have specifically asked about it, no?) Flores said he did NOT. If he did NOT, then there is no real issue here and it makes sense why the appeal today was unsuccessful. There was no hanky-panky going on -on the part of the state. Flores then testified under cross by Martinez that this only started to come up during the defense questioning of him. So it became evident the “sequencing” issue was not in any way the point of Flores’ testimony or the reason why the state had called Flores to begin with. Again, without a transcript to the probable cause hearing we are only guessing as to whether the defense is absolutely correct in their appeal or whether they are simply trying to make something out of nothing. We all know that witnesses sometimes expound on things they need to be reeled back in on. To me after listening to Kevin Horn’s very credible testimony in which I have no doubt he ever changed anything about his theory on what happened, a cross examination of Horn by the defense that was painful to watch, confused and desperate, then…thinking about what I know about human nature and bias confirmation, watching the judges reaction to both attorneys, and the state’s cross and argument as to why this motion was just another red herring – convinced me-this ws a mistake on Flores’ part but one not that important because it was a very minor part if even that to the probable cause hearing and had little if anything to do with the point the state was making.

    I believe the Defense (Kirk Nurmi) heard Flores’ say this thing about gun shot first and they felt they had learned something unbelievable and fantastic in terms of the state’s absolute theory/strategy of the case. I think they probably believed that Flores blabbed too much on the stand and inadvertently told them more than they ever expected to learn at that stage. The problem is…it was just wrong. The state does not have to (as I said in an earlier post) provide the defense with the Cliff Notes version of their theory of every little detail. They do not have to give the defense a narrative that will break down their entire theory of the killing either. They DO have to provide what they DID provide which is the list of witnesses being called, reports of what they would be testifying about etc. They do NOT have to go back and clarify bumbling statements from a witness.

    In terms of Horn’s report, if they had any questions it is the defense’s responsibility to engage their own Medical Examiner or doctor to review the Medical Examiners Report and provide an interpretation. For some reason the defense never called their own ME, which would have been especially helpful given they were clearly at logger heads with the state’s medical examiner. They still had time to do that and clearly money was not an issue here.

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  3. Tangled web we weave

    JMRJ
    You said:
    Apparently, they were supposed to divine from that report that it contradicted what Flores had testified to, but that is fatuous: not only is it a matter of expert opinion, but they were entitled to rely upon testimony that was actual evidence, regardless of how wrongly it had been admitted.

    No. The court knew the defense was not going in blind on this, or “were supposed to divine from that report”, because the court was aware the defense deposed Dr. Horn and did so long before trial. And Horn’s testimony during the trial was entirely consistent with what he told the defense during their interview with him. This appears in the record and was also revealed to all those who value due diligence over speculation when Nurmi was questioning Flores about the whole shebang in the open court hearing. ( Youtubes of the hearing are usually labeled as Day 5 of the trial. The hearing occurs about midway through)

    Nurmi asked Flores when Flores became aware of the “current” discrepancy and Flores responds that he found out shortly after the defense’s interview Horn. Oops. Nurmi is obviously taken back when this is pointed out. He loses his timing and lets out a long pause followed by recognizing Flores’ answer with a somewhat drawn out “okay”. Nurmi then wraps up his line of questioning, completely packing up his theatrics aimed at trying to point out that a sequencing change was some kind of a trial surprise maneuver, as it is now obvious to anyone listening that the defense had spoken with Dr. Horn and was told his view on the sequencing well before hand.

    The defense’s interview of Horn is another reason why the judge asserts defense counsel knew well before trial. She is well aware that their knowledge of a sequencing change came from their well before trial interview of Horn, and is not based in anyway on an expectation of them diving anything from a medical report.

    I know my reaction may come across as quite strong, but to present such a thesis, and then in a comment reveal one of the primary points it is based on – only to discover it is factually incorrect – may be something to consider. The issues you discuss are important and they do exist. However, it is too just easy for those who disagree with your underlying premises to refute and discard them when they are presented with a flawed supporting argument.

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    • Tangled, thanks for pointing this out, it does fill in some blanks and I can understand your position.

      But you’re still wrong.

      I can’t find much less watch the hearing you are describing in time to respond this morning. But let’s take that issue off the table by stipulating that it’s exactly as you say. As I indicated in my earlier comment, it might well be that this was all a big mistake. Nevertheless, it is the prosecution’s mistake. The prosecution put in “shot first” evidence, it doesn’t matter how wrong it was. Horn gave “shot last” evidence at a deposition. The prosecution cannot hedge their bets on such an important piece of evidence, wait and see what the defense does, and then pick which version they like better after they know what the defense is going to argue.

      Moreover, even if Horn was deposed by the defense and gave the alternate scenario, that does not mean the prosecution is going to back away from the contrary evidence they already elicited. So at best, Nurmi doesn’t know which version the prosecution is going with. And the Horn deposition would be defense evidence, if indeed it came in as direct proof, which is another issue we’ll just have to leave open for now, but it doesn’t matter.

      Once the prosecution was aware that the testimony they themselves had elicited was wrong, they had an obligation to specifically correct that testimony, to specifically repudiate it, as in: “Detective Flores testified that Dr. Horn stated to him that the shot came first. That testimony was incorrect, and we as ethical prosecutors wanted to bring this to the court’s and counsel’s attention so that neither court nor counsel are misled about an important fact in this case.”

      If the prosecution didn’t do that then Nurmi has every right to claim surprise and indeed probably was surprised, as your account of his behavior at the hearing indicates.

      This is not about which version, shot-first or shot-last, is correct. This is about prosecutorial misbehaviour and judicial coddling of the prosecution. Having, at a minimum, screwed up on this piece of evidence, which was critical to their whole DP argument, the only honorable thing for the prosecution to do was drop the DP, and if they wouldn’t do that the judge should have done it (if that’s possible) and at the very least if neither of the foregoing a continuance should have been granted to give the defense time to consult experts to see what they wanted to do in response to the prosecution’s move.

      There’s just really no question about any of this, as far as what is right goes.

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  4. lissajrobinson

    I just posted this on one of the older threads, but wanted to bring a version of it here as I think it fits.

    JMRJ, I know you have said this isn’t about shot-first or shot-last, but doesn’t it really boil down that very thing since it speaks to the reason behind the potential misconduct here?

    The gun first is clearly a big lie that was been crafted by the prosecution. Clearly, Dr. Horn lied. In the autopsy he states: “The dura mater and falx cerebri are intact.”

    When that was pointed out by Dr. Geffner’s testimony, he stated that this was a typo. Sorry, but I am not buying that one bit, unless he is a very lazy or incompetent ME. If those areas were damaged, then a skilled ME would have also described the damage to those areas in detail. But he clearly doesn’t.

    The prosecution changed the wound order, so it wouldn’t line up with the self defense narrative — period. And that seems to circle back to what JMRJ is pointing out above.

    And they got away with it because the judge gave it a pass, and because the autopsy doesn’t state when the gun shot may or may not have occurred — only that the chest and throat wound were what killed Travis. Also, his chest wound does not explain the blood splatter at the sink.

    The lung was nicked not punctured. However, the bullet wound out of the cheek could have caused blood from the nasal to the mouth which would explain the coughing and splatter of blood over the sink. Just because Jodi killed Travis, does not make it okay for the prosecution to build what seems to be a false narrative. It really does not line up with the physical evidence.

    There has been a lot of discussion about the brutality of the stab wounds — the ones on back especially and the final throat cut because they are brutal and don’t generally fit with “defending” wounds. Given that, a lot of assumption was created based on the pro’s narrative about those wounds that are used directly to the characterize Jodi as evil and especially cruel (DP on the table).

    I would like to propose another idea about the stab wounds. This is a very interesting discussion from an expert on using knives as a weapon of self defense:

    http://www.armedcitizensnetwork.org/defending-self-defense-knife-use

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  5. GUILTY beyond a shadow of a doubt

    John,
    The prosecution did not ask ANYTHING about sequencing or what injury came first in the probable cause hearing. According to the Jan 2013 evidentiary hearing and Nurmi did not dispute this BTW. Flores obviously spoke out of turn. I am not a lawyer, so can only defer to your more educated argument above that even IF Flores said it- in error -and even IF- the state was never intending to elicit that comment by Flores and he was there for another reason altogether, you say it was encumbnt upon Martinez to correct what Flores said, for the record. Does that go both ways by the way..or is it just the prosecutor who must correct the record for the court in the event one of his witnesses says something that is not true or isn’t in accordance with the defense’s case in chief?

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    • Guilty, it is generally incumbent upon any attorney to correct false testimony or evidence that comes to his attention; however, it’s a more complicated question with a defense lawyer who has duties to his client as well as the court. A prosecutor’s obligation would be unqualified and absolute: he has no potentially competing client considerations.

      Certainly, a defense lawyer cannot put on false testimony or evidence if he knows it is false beforehand. If, for example, his client wants to testify and the lawyer believes the client will commit perjury he can’t do that.

      We’re talking about a situation where the falsity comes to a lawyer’s attention later, after it’s already in, and whether it was or wasn’t inadvertent wouldn’t make any difference for either a prosecutor or a defense lawyer: if it’s your evidence put in on your case and you learn that it is false you have to correct it.

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  6. GUILTY beyond a shadow of a doubt

    OK. Makes sense. For now, until I hear any different I will accept Juan SHOULD have clarified the error of Flores -even though it had nothing to due with the point of the testimony state intended to elicit at Probable Cause Hearing. (Just curious though…was there anything preventing the defense from deposing both Flores and Horn again, before trial- i mean they had a whole year- in order to ascertain whether their belief on state strategy was correct?)

    But this brings up another question along these same lines. Not to belabor a point ..but I have not heard anyone expound on this from a legal perspective and its been bugging me. Please bare with me.

    Jodi Arias tells the jury under direct and cross examination that she returned a 3rd gas can to the same Salinas Walmart she purchased it from. (This is on tape and I posted it here earlier.) Juan Martinez in a very lengthy and extensive direct of a Walmart supervisor that works at the Salinas Walmart Jodi bought said 3rd gas can @ testifies to the return process that Walmart uses and how the barcode/sku # is used in such returns and further what would need to happen to give cash back and the receipt that would need to be presented. It was a very long and tedious testimony and involved some (90?) cash registers total activity for the day in question. Walmart supervisor testified that not only was there NOT a gas can returned that day-to any register- but one did not show up as returned until two weeks past the date she bought hers. Without arguing over the endless “walmart made a mistake” “Ive made returns at walmart and they have not done that” etc etc and other non-factual, non-evidence related opinions by many, can you for the sake of this question just assume that she did NOT in fact return the gas can-because the register totals prove it? BTW- the defense asked the Walmart employee NO questions. Did NOT conduct ANY cross examination of ANY kind. (When they could have easily asked, like bloggers have been speculating…”but come now Ms Webb …arent there sometimes random returns that sometimes do not follow the procedural process due to lazy employees?”) NOTHING.

    I am familiar with the fact that all attorneys must be truthful in a court of law. But I was very surprised that while Nurmi CHOSE not to cross exam the walmart witness, he DID choose to say the following in his closing argument:

    “Now…the Prosecutor says Jodi Arias LIED to you about returning the gas can”…(he fumbles with some note in his hand here like he is going to whip out a long lost receipt of the return…but then moves on doing no such thing) “But did she (Jodi) SAY which Walmart she returned the gas can to..NO..and you can look back at the testimony to see for yourself..she was all over, Pasadena, she could have returned the gas can to any number of Walmarts” (He ends this argument with a forceful tone of voice like he is SICK and DONE & tired with the prosecutors lies about Jodi and suggests the jury should be too ….)

    Now, If I KNOW, for a fact, that Jodi DID indeed say WHICH Salinas Walmart she returned the gas can to…what are the odds Mr Nurmi didn’t know this? I’d say pretty darn slim to ZERO. My point is, a lawyer is NOT to mislead the jury into a false direction. How is this anything OTHER than blatantly disregarding his oath to the tribunal and misleading the jury? John?

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    • Guilty, this is a much more complicated area than it seems. We’re not talking about false testimony per se. We’re talking about when lawyers know something is false. You might appreciate that the vast majority of the time lawyers do not “know”. And sometimes they “know”, but are in fact wrong, because lawyers, while very smart people overall, are not infallible.

      Sometimes a criminal defendant wants to testify, which he has a right to do, but his lawyer thinks or “knows” he is going to commit perjury. The balance that has been struck there is that the defendant testifies “in the narrative”, that is, without his lawyer eliciting anything from him. This protects the lawyer from violating his duty of candor and honesty to the court, but as you might imagine it’s an odd thing when it happens.

      As for Nurmi’s closing argument, maybe he just has a bad memory or wasn’t paying that much attention to that particular issue believing it to be not that important. This trial went on for months and while it might have been a very salient point for you that doesn’t mean Nurmi cared all that much about it.

      There’s a stock disclaimer lawyers can and often do give in a closing argument going something like: “I’m going to review the evidence with you, the jury, and I endeavor to be accurate but if you find that I have not been accurate it is your memory that controls, not mine.”

      I have never used the disclaimer myself because I am utterly terrified of saying anything even remotely inaccurate in a closing statement and don’t believe I have ever done so. Plus, to me it sounds like a CYA maneuver.

      I’ve had trials where I wasn’t sure if my client or a witness was telling the truth, in the sense that I could see an argument that the testimony was false, or even deliberately false which is the more pertinent thing, but I wouldn’t use any evidence unless I was reasonably confident it was accurate.

      So I hope you can see the difference with this shot first, shot last stuff. The prosecutor tells you that his own evidence is false, not because he discloses that and corrects it the way he’s supposed to, but rather because he just decides to offer contradictory proof and pretend the first testimony never happened, hoping no one will notice or gig him on it.

      Read Napue v. Illinois, a Supreme Court opinion from 1959. You might find that amusing.

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  7. GUILTY beyond a shadow of a doubt

    Thanks John. But you actually had me already until you said the part about “The prosecutor tells you that his own evidence is false, not because he ..etc
    The distinction and i think there is one, is that the “prosecutor” never owned that evidence ever, the part about gunshot coming first. Matter of fact, Martinez, like Nurmi with the gas cans may have not even realized that it was going to have the significance it did later..especially in light of the fact he was focused on proving probable cause at the time. He never specifically asked or elicited according to martinez in january and the defense did not deny this. I believe if we get the transcript a whole lot more will make sense. Dont know if that will ever happen. BUT I do get yr point about if his witness said it anyway, even if in error, he should have come forward with just a clarification that Mr Flores’ statement do not necessarily reflect the state’s or Medical examiners opinions. But…what about my question about
    was there anything preventing the defense from deposing both Flores and Horn again, before trial- i mean they had a whole year- in order to ascertain whether their belief on state strategy was correct?

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    • Richard Speights

      Guilty…your comment is a little like saying a carpenter didn’t realize he was building a house until he was through. If Martinez wasn’t working to establish the “shot last” theory, then why did he so carefully craft that story line from the beginning of the trial?

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  8. GUILTY beyond a shadow of a doubt

    John: I am listening to the testimony in Jan 2013 again and Dr Horn WAS deposed by defense counsel months before trial and asked about the discrepancy and Dr Horn stated to Defense counsel that he DOES Not believe gun shot was first -based on autopsy and stated same thing he testified to in trial. So this is why I believe this is not a situation where the defense didnt know what to believe. They had to know this was truly the detective speaking on something he didnt know enough about.

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  9. Jessie

    I was going to post this in the last thread where it’s more appropriate, but I’m getting lost in all the comments. I finally caught one of your replies to me, linking to the satirical stuff about reversals of monetary awards, but not criminal verdicts, etc. So, before I wander off to read “The Bambi’s mother school of criminal defense” (I don’t know what it’s about, but with a title like that, who cares?)….

    I’m hearing much (and watching almost nothing) about the jurors now talking to the press. Are such juror statements ever grounds for appeal?

    The gist of the allegations (mostly, but not exclusively, coming from those who question the verdict) is that they’re now badmouthing other jurors, suggesting they knew Jodi was guilty well before deliberations (as early as opening arguments), showing excessive identification with the Alexander family or with Juan Martinez, believing Martinez actually represented the family, and/or some combination of things that would suggest they were biased early on.

    I don’t know if of these interpretations of the juror statements are true and I don’t have enough interest (yet, anyway) to bother watching them. I’m just curious if public statements by the jury can be used in appeals to show that they didn’t follow instructions, were biased in some way, or applied some kind of gross misjudgment (e.g., deciding guilt during opening arguments or believing the prosecutor represents the victim’s family)?

    I’m reluctant to interpret what the jurors say (and this probably accounts for my disinterest as well) because they’re all under duress, particularly after abuse was heaped on the foremen when he spoke. Even if they are saying these kinds of things, how do we know they aren’t just trying to appease the mob?

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    • Jessie, the short answer is that juror statements after a verdict reflecting clear violations of instructions can certainly be a basis to set aside a verdict, as early as before the sentencing if the trial judge is of a mind to do that, which trial judges never are. Neither are appellate judges, but after things cool down a bit sometimes a judge or two will behave like actual conscientious and responsible adults who do their jobs. Which is not to say that’s ever likely, unfortunately.

      I would caution that there is another countervailing principle involved, though. ‘Invading’ the deliberation process of the jury is a frightful step, one that I have to agree courts (judges) should be loathe to take. That’s why I’m saying that the statements of the jurors would have to reflect a clear violation, without requiring further inquiry. An implication would not be enough. The differences might seem subtle, but they’re important.

      For example, let’s say a juror says: “When we started our deliberations after getting the case, the first thing everyone said was that they knew she was guilty as soon as opening statements were done.” That would be, if true, highly improper and juror misconduct but my estimation is that no court would set aside a verdict based on that, because it requires further inquiry and investigation penetrating the deliberation process of the jurors. But if a juror was to say: “We talked about the case everyday at lunch while the trial was going on, and everyone knew she was guilty all along. She wasn’t fooling anyone.”, that would be a plain statement of a fatally flawed jury, and I think that would be a basis to set aside the verdict. Not that I think any judge would do it, even then, but I hope this makes the difference clearer than it would otherwise be.

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      • Jessie

        So how close would a juror have to come to outright stating, “We watched Nancy Grace all through the trial and talked about it every day at lunch,” for it to be a clear violation as opposed to invading the deliberations?

        I finally got interested enough to pay attention to some of the juror’s media statements and, while several of them are off-putting, only one of them struck me as problematic.

        One juror told HLN that after they were excused, she watched some of the press coverage and she referenced various things that were never entered as evidence when asked why she thought Arias’ testimony wasn’t truthful.

        In context, it’s very difficult to believe that she actually watched these things after they were excused. She referenced things that were in the press months ago (e.g. Jodi doing headstands during police questioning). This stuff isn’t getting any play anymore. And she referenced them in answer to why she didn’t believe the testimony, which was back in February and March, at about the time these things were getting a lot of play.

        In context, I find it easier to believe that she was watching the media during the trial. Her only solid reasons for not believing the testimony were things that were never entered into evidence or referred to at all in the trial.

        So, do jurors have to basically incriminate themselves in order to make statements that would draw their verdict into question, especially if it’s not a question that pertains to the deliberations process?

        My second question is totally unrelated to the first: Could the defense appeal on the basis that the gun should never have been allowed into evidence? It’s the strongest evidence of premeditation, though it’s not as strong a coincidence as most people assume because probability dictates that coincidences never are.

        However, she was not only never convicted of stealing from her grandfather, she was never even a suspect. The connection was never made at all until after her arrest and was then, of course, never confirmed. So the only way to use the gun as evidence of premeditation is to “convict” her of a crime she was never even investigated for.

        Appeal issues or no? Thanks again for all your time answering questions. I’d feel a bit guilty except you seem to enjoy answering them — and I’m glad you do! 🙂

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        • Hi Jessie.

          As a practical matter, unless a juror or jurors come clean and clearly confess to some serious misconduct, such as taking bribes, there is little chance for a verdict to be tossed on juror misconduct grounds.

          On the gun evidence, you do make a very good point and it would be a good ground for any number of appellate arguments, as long as those arguments were made during the trial. If they aren’t made, then the issue is deemed “unpreserved” for appellate review, which essentially means the argument is waived. The idea is to give the trial judge the chance not to commit the error by making the argument in front of her first.

          The likelihood is that the gun evidence would be viewed as proper as long as it was introduced in good faith, meaning that there was some reasonable basis to allege it. While it has that aspect of smearing a defendant with a crime she hasn’t been charged with much less convicted of, generally the prosecution would be allowed to offer their theory if there was some basis for it. Your point is more like a due process issue. It’s an interesting argument but I don’t see it getting anywhere on appeal. I think the appellate court would just say in response to that argument that the prosecutor had a basis to allege it and that’s all that is required.

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          • JMRJ, you wrote:
            “The likelihood is that the gun evidence would be viewed as proper as long as it was introduced in good faith, meaning that there was some reasonable basis to allege it. ”

            There WAS a ‘reasonable basis to allege…….BOTH, individually . JM ‘alleged” both theories in _closing arguments_ (does that count as “during the trial”?), and Nurmi tried to counteract that contradiction in _his_ closing . Both of these theories were alleged DURING the trial as well…..not side by side, but separately argued. But how do you “allege” both that she stole her grandfather’s gun (going to “premeditation”), and then out of other side of your mouth that she stole Travis’ gun during a “burglary” and therefore it is felony murder? If she stole Travis’ gun and there is “reasonable basis” for that……you can just add another “reasonable scenario ” that she also planned it by stealing her grandfather’s gun? How is this claimed by JM “in good faith”?? And how did 7 members of the jury buy into both theories……”in good faith”?

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            • In answer to my own question, how does JM do this “in good faith”? …….yes, she could have stolen grandfather’s gun when she “planned” it, but wound up using Travis’ gun when she finally carried it out. But how does that reconcile with JM also claiming Travis didn’t HAVE a gun? How is THAT “in good faith”??

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        • GUILTY beyond a shadow of a doubt

          Jessie: I have watched all the juror interviews once admonition was lifted. With all due respect, I think u are reading into things what you want to read into them. Several jurors have admitted watching things that were never submitted at trial AFTER they were excused. You say you believe that to be improbable becs their access to such things isnt readily available by the media at this stage- and this proves to you they more than likely watched HLN and the headstand stuff DURING trial. Jessie, I am sure you are aware there are more than just a couple websites, facebook pages etc out there that allow someone to access previously shown footage. In fact there are websites and youtube channels out there where certain people have posted ALL footage in relation to Jodi Arias news coverage. I know one juror has a twitter acct and many folks have been tweeting links to said footage. There is not anything illegal about that BTW.

          I also keep hearing from some supporters that certain juror(s) have said they thought she was guilty during opening statements. Can you tell me where I can access the juror who said that or reference their name so I can search for such a comment? I havent heard this anywhere. I did hear two jurors say in an interview that while they found it hard visually to see Arias as the defendant at the start of trial. once the autopsy photos and evidence started to come in they no longer had a problem seeing her as the potential killer, especially in light that during opening statements her own attorney claimed “Jodi Arias killed Travis Alexander…there is NO doubt about it”. Once her atty said that, its taken for granted she is the killer. Is that what you or others are referring to?

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        • Jessie, you wrote:
          “One juror told HLN that after they were excused, she watched some of the press coverage and she referenced various things that were never entered as evidence when asked why she thought Arias’ testimony wasn’t truthful.”

          I believe that is what snarky _alternate_ juror said on either NG or Dr. D show. She was beating around the bush to justify her beliefs and just wound up using “evidence” that was not presented in trial to back up her belief that Jodi wasn’t truthful. She was all over the place with her defense of her conclusion……and she was just an alternate, I believe.

          Also, Jessie…..maybe you haven’t watched HLN 24/7 but they are STILL showing that video of Jodi standing on her head. (As if that PROVES she is “nuts” and a liar). In fact, alternate juror said the “standing on her head” thing was what showed her Jodi was a “psycho”( ahem…..after the trial of course).

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  10. GUILTY beyond a shadow of a doubt

    John: It gets worse. Reading from the transcript from the ’09 hearing Martinez on cross asks Flores whether in fact Arias’ attys (who were different at that time), asked of Flores in the hearing…”Horn indicated that he was not certain as to which injuries came first”? Flores responds “YES”.
    Come on.

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    • Guilty, we might be belaboring this a bit. The important thing, as far as I’m concerned, is to understand that lawyers cannot knowingly mislead court or jury but of course there’s a lot of room for disagreement – that’s what trials are about, after all – that wouldn’t have anything to do with anybody knowingly doing anything wrong.

      I think prosecutors sometimes suspect defense lawyers of knowingly misleading them or the court or the jury because if you’ve never represented actual people it’s hard to appreciate that this whole area is more complicated for defense lawyers than it is for prosecutors. Prosecutors have no human client. If the prosecution suddenly decides that you are no longer a victim but rather that you have lied to them or the court they can turn around and prosecute you, and sometimes they should. Sometimes “victims” think the prosecutor is their lawyer. Some prosecutors encourage this. But it’s not true.

      Your own lawyer can never prosecute you, can never reveal anything criminal you’ve done or anything else you may have told him without your consent.

      In any case, there’s a lot of disagreement about all this Horn/Flores stuff, and that means it will be an issue on appeal, or should be, not matter what you or I think about it. I doubt very much I’m going to find time any time soon to watch a 34 minute video, although I appreciate you posting it, you never know when I might get the chance. Not today, though.

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    • Since Horn claims the shot to the head would have killed him…..he is contradicting himself that he doesn’t know for sure which injury came first. JM claimed it came last to “prove” that the killing was “extremely cruel”. As I said earlier, he made this claim so that the jury would “feel” the impact of the PAIN and focus on that.

      I found it somewhat disingenuous on the part of 3 jurors who were interviewed that they came forward at all……it speaks to me that they feel very uncertain about their verdict and need to justify it on air because they KNOW most people feel it was the right verdict and they _NEED_ validation. The foreman was willing to be interviewed because he was looking for _validation_ that the jury was ‘hung’, and he feels responsible for that as the foreman.

      The bottom line is that these jurors were one CONFUSED bunch of stooges.

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  11. GUILTY beyond a shadow of a doubt

    This really tells you everything

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    • Tells, me everything? I don’t see how. One thing I see is a rather dishonest shift by Martinez, asking about explicit references to “sequencing”. The point apparently is that Dr. Horn never committed to any specific sequence of the injuries and in fact his opinion was that he wasn’t sure.

      One rather serious question then, is how and when Dr. Horn became sure that the shot was fired last? Wasn’t that his opinion at the time of trial? If it was, that’s still a significant change in testimony and indeed a departure from what the prosecution had previously committed to and thus still an unfair surprise, which is a due process issue.

      But I digress. In discussing whether the gunshot would have disabled TA or whether it caused him to lose consciousness, there is certainly, at the very least, an assumption that the gunshot was not last. And I think it’s quite clear everyone understood it that way until the prosecution changed its tune, and that apparently was on the eve of trial. Stressing the hyper-technical point that perhaps no one had explicitly said what was already implicit and assumed is more in the nature of an after the fact justification than a genuine argument.

      But really, we’ve beat this horse to death here, don’t you think?

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      • GUILTY beyond a shadow of a doubt

        John: Um .. I agree about the dead horse..he’s long gone died. You will see it your way, and I will see it mine. 🙂

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  12. Dennis

    Generally, what causes a court to rule in favor of an appeal? Can infractions exist but be deemed insufficient to overturn a verdict?
    Thanks.

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    • “Generally, what causes a court to rule in favor of an appeal?”

      LOL the workings of appellate courts are totally mysterious to all outsiders.

      Some general rules from experience and informal statistical studies undertaken by yours truly:

      – Small, weak litigants like personal injury Plaintiffs and criminal defendants are heavily disfavored.

      – Large institutional litigants, especially the government, are heavily favored.

      – Affirming trial judges is, other things being equal, greatly preferred.

      These general rules have a common thread: a pronounced establishmentarian bias, which is most likely explained by judicial self-interest.

      As for “infractions” existing but not being sufficient to overturn a verdict…oh, yesiree indeed. There is a well developed legal doctrine known as “harmless error” that is frequently used to affirm judgments where there has been some error deemed harmless by the appeals court.

      True story: I know of a judge who, at the trial level, decided that he would disregard the law and commit error because he thought it was “harmless”. Thus some trial judges have re-interpreted the doctrine excusing error to a doctrine authorizing error in advance. Ugh.

      The harmless error doctrine is brilliantly satirized here:

      http://appellatesquawk.wordpress.com/2011/11/05/harmless-error-what-if-everybody-did-that/

      Nice to see you again, Denny.

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  13. HonestAbe

    I didn’t see a thread for it but something to get ready for is HLN’s handling Treyvon Martin. The trial had not even started and they have side-by-side images of Martin and Zimmerman, Martin in very nurturing and innocent poses but not Zimmerman. HLN is going to throw his ass under the bus as they did Arias and will probably do to in the Fowler case.

    By the way, I spoke with people on Twitter and they are already convinced that Zimmerman is guilty. Some are associating the case with friends and family who were unarmed and shot by police. Yikes!

    This may very well be one of those situations where we’ll never know just how if Zimmerman targeted Martin, much force Martin applied on Zimmerman, and if Zimmerman felt for his life. What I do know is HLN to tell you exactly what happened and idiots will believe whatever they say.

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  14. LOLO

    Hi,
    I just wanted to point out in your comment to GBASOD that you allowed Nurmi when talking to the jury in closing statements about the gas cans that “oh, maybe he just has a bad memory” or “was mistaken”. But when it comes to the Flores or Martinez and the testimony about the gunshot there was no such leeway. I have also seen the trial footage and read transcripts. Guilty beyond is correct in what was in the transcripts from the pre trial hearing, when Martinez is asked by Jodi’s original lawyers about the sequencing. Also in the trial Martinez stated in testimony that when he testified he was testifying based just on the heinous aspect at that time and that the order of all of it was not what he was talking to the grand jury about at that time.

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  15. GUILTY beyond a shadow of a doubt

    LOLO, yes its an interesting argument I have heard from many defense attys. Not saying John is saying this (but it seemed like it).. but many say the prosecutor must be above reproach and in all ways must be seen as not doing anything even slightly manipulative, disingenuous etc. But because defense lawyers of course believe they have the much harder job, they believe they are entitled to far more slack -even if it means manipulation, misleading the jury (but this isnt openly admitted to-this comes under the guise that even the defense atty may not really KNOW the truth-hence he can throw out all kinds of misleading things) throwing everything at wall to see what sticks -even if they know what they are saying is preposterous and untrue- when it comes to issues revolving around “honesty”. And I agree that defense attys often have the much harder job. They are also faced with issues like responsibility to their client and their oath to protect said client no matter what even if they believe, know or learn their client lied on the stand. They are supposed to be honest in court but they are often faced with conflicting oaths.

    I have also heard many people in re: to THIS case- say that if a client presents a defense that is even remotely possible then a reasonable doubt has been PROVEN -no matter what. I do not agree with that at all because the defense must be reasonable and “reasonable” is in the minds of the jurors deliberating-not some bloggers who believe the defendants story. And the prosecutor’s burden to prove something beyond all reasonable doubt is not something that is easy much of the time -even in many cases where the defendant is guilty as sin.

    I would like to know what the EXACT rules/law/ethics state in regards to how prosecutors behave in court versus defense attys. How the standards are different for each side. Like I said- Ive heard from defense attys only- that prosecutors must NEVER behave in a way that is questionable ever (in this case questionable included aggressive cross examination…what?) but defense attys CAN behave in that way becs of the nature of their job and can get away with what prosecutors should not. Is this just a belief based on a defense attys filter or is it an actual RULE?

    I have asked three different online defense attys in their blogs to explain the prosecutorial misconduct charges this defense team brought against Martinez for his aggressive cross examinations and raised voice. No one wants to tell me their thinking on it based on my commentary. I was and am still completely bowled over by the temerity of the defense bringing these motions forth. Never in my life have I seen a defense team whine about how good (basically… that’s what they are admitting -imo) a prosecutor is and that its unfair he can put their backs up against the wall and THAT is worthy of a mistrial? Ive seen prosecutors and defense attys do this all my life and its standard operating procedure in MANY high profile trials, especially if there are lying witnesses. But all of a sudden in the Jodi Arias case, where a defendant with a strange immaturity about her-is forcing her attys to bring motions that sound JUST like a 17 year old high school girl pouting? And online supporters and even some reporters from the Arizona Republic get on the bandwagon and CHEER these kinds of silly motions?

    Like

    • Guilty, these are legitimate questions, and it seems you appreciate to some extent the more complicated nature of the defense attorney’s job.

      Take the lying witness. No lawyer is permitted to deliberately put a witness on the stand to lie. But what happens if the witness lies unexpectedly?

      A defense lawyer cannot turn in the client. He might have to turn in another witness, but it’s a complicated calculation. He’s not allowed to damage his client’s case.

      For the prosecutor, the situation is unambiguous. He might actually turn around and prosecute the perjurer. At the very least, he must correct the record from the perjured testimony.

      I suppose that a prosecutor berating witnesses and throwing things is misconduct, but I wouldn’t think that’s the kind of thing that would necessarily require a mistrial or a formal admonishment. A prosecutor is allowed to get into his groove and make his points, with some drama if that’s his style.

      In this particular case, I did watch one portion of the trial where Martinez was cross examining a witness, going on and on about “Snow White”. I found the whole thing fairly ridiculous, but I would never say that was misconduct.

      The duty of a prosecutor is not to win the case but to do justice. If justice is losing the case he has done his job. To some extent the defense lawyer is also not there just to win the case, but to represent his client zealously and ensure a fair trial. One might also say that is doing justice.

      However, when the client is innocent the defense attorney’s obligation is to win, both to his client and to the system. Because in that case winning the case and justice are one and the same. By contrast, the prosecution almost never has an obligation to win, the reason for the difference being that whereas the defense lawyer is sometimes in a position to know that his client is innocent, a prosecutor is almost never in a position to know that a defendant is truly guilty.

      In our system there are generally two reasons a case goes to trial: first, the defense lawyer thinks he can win, or thinks his client is innocent, and of course these overlap most if not all of the time; the second is that the prosecution is offering no leniency. In other words, the plea offer is: plead guilty to everything and take what the judge gives you. When you have nothing to lose you go to trial.

      In the latter case, of course, the client may be guilty but there is still an obligation to do what you can, within the law, to win. So in this rather rare circumstance, the defense attorney’s job is not to do justice, justice being defined as the wrong being paid for.

      Obviously, or at least it should be obvious, the defense attorney’s job is much more intellectually nuanced. A good defense attorney almost always must be very intelligent. But you can be a good prosecutor and not be very intelligent at all.

      Which brings us back to Martinez. 🙂

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      • GUILTY beyond a shadow of a doubt

        Thank you so much John. I absolutely appreciate that a defense attorney’s job CAN be the much harder one. I may not be taking into consideration everything (and there may be prosecutors that vigorously disagree with this) but as a lay person, your argument and what I know about your profession- requires a very smart person to put on a good defense. I agree that someone simply charged with a crime is by many automatically assumed guilty despite what our justice system is supposed to be about. And I completely see yr point about the prosecutors job being to seek justice- & even if he loses he has still done his job. Same with a defense atty. I don’t agree with the idea that a prosecutor can never know for sure whether a client is guilty, becs sometimes, the evidence speaks for itself and depending on how good the defense atty IS and how lucky or crafty the defendant was, that prosecutor may not stand a chance despite the guilt or innocence of the defendant.

        Juan Martinez’ snow white cross examination of Alyce LaViolette was.. I completely agree with you- bungled and strange. Although I saw what his point was -and yes there was most certainly a GOOD point- he could have cut much out of that to make it. Juan Martinez seems to work without notes a lot of the time – he seems to prefer this style – but I think it hurts him at times especially when he is up against a defendant whose own manipulative style is to create all sorts of diversionary issues/details in order to take attention off what the case was about. I have known a liar exactly like Jodi Arias so I was not at all surprised by her particular form of disingenuity. I also think becs Juan martinez had to sit for so long, during this trial -while the defense took a LONG LONG time to tell their story- he got angrier and angrier at some of the defense strategy. He had to sit through very long stretches of things that had zero to do with the case and everything to do with getting the jury to take their eye off the ball. I also became angry about that becs of the manipulative intent behind it. But I will admit, yes he let his anger get the best of him at times and I think his brain sometimes worked faster than his mouth could keep up and things came out clumsily. I definitely agree that Juan needed to get to his point throughout some of this trial, but my GOD, I felt that way MUCH more with the defense going on and on and on and on about certain things. The amount of time they spent going over the minutiae about Jodi Arias’ every little feeling about every little life event was like chinese water torture.

        But I think its inaccurate for folks to look at only isolated examples in this trial as proof positive of inept prosecution OR defense. Because to be sure there were also many examples of what looked like incompetent defense and many times I felt it painful to watch the defense attorneys. Not so much because they were doing such a horrendous job, but because the facts in this case were just that bad and their own client’s behavior, action and words, did so much- to make their job -at times -seem impossible. The whole thing with the coded messages in the two magazines where Arias attempted to get a message to someone by way of Anne Campbell, her ex cell-mate’s girlfriend. I think its fairly obvious to most people it was Matt McCartney. Her attorneys OBVIOUSLY had no idea whatsoever that this evidence was going to come into trial or more to the point knew the magazines were in evidence but completely missed the reason. I have no idea whether Arias attorneys didn’t look hard enough at the magazines- prior to trial , whether they made a wrong calculation as to the reason they might make it into trial OR whether Arias decided to throw the dice and hope for the best and NOT be honest with her attys and tell them about the messages she tried to send. And I can understand why she would not have told them though. She definitely would not want her attys to see she was trying to affect a witness’ testimony-they probably had plenty of reasons to mistrust her ability or willingness to tell the truth by that point. .

        In terms of defense attorney bumbling- the cross examination of Dr Jill Hayes by defense atty Jen Wilmott for example was PAINFUL. The cross examination of DeMarte by defense.atty Jen Wilmott was PAINFUL. The cross of Kevin Horn by defense atty Jen Wilmott, cross of Esteban Flores by defense atty Kirk Nurmi …all IMO, not effective and definitely did NOT look smart. The witnesses- remained unimpeachable-the defense scored nothing. And its evident the jury saw things this way too, by the small number or complete lack of juror questions. Then of course the verdict.

        My point is Juan Martinez -while he may have stumbled at times did an excellent job overall and here is why. He was particularly skillful when dealing with the defendant and her “expert witnesses” that were clearly biased and in many cases untruthful. Does a biased witness or untruthful witness alone make his job easier? In some ways sure, yes, but in some ways NO. As we saw recently, some people on the jury (4) believed in the abuse claims. Some people are incapable of separating fact from just an assertion. Especially when so MUCH information is thrown at them. Some folks get confused. And this is particularly something that bugs me about many defense attys strategy. They KNOW people get confused, so they hope that by throwing so much info at them some jurors will be unable to stay on the path of what actually happened. This I find manipulative and I do not think its necessarily a sign of defense atty brilliance. Its just manipulation. The evidence in this case CLEARLY showed to me that the claims of abuse were all about secondary gain. Jodi Arias is very good at ONE thing. Not telling believable LIES, but Lying in a very confident way and coming across as an innocent. One must be able to discern the difference. Juan Martinez’ approach with these witnesses, did NOT make them break down and admit to bias or to not telling the truth, but it resulted in them showing WHO they were as people. Jodi Arias has an ego and is extremely proud of her ability to not fall apart when under duress. She could not HELP being snarky and wanting to one-up the prosecutor at every turn because she understandably hates this prosecutor and WANTS to beat him-even if its for momentary gain-and her immaturity prevented her from seeing that by trying to win in the short term she lost in the long term. She just was not smart enough to realize that her behavior on the stand showed the jury and the world that she was not now nor ever this shrinking vulnerable violet she had been attempting to play. And this came out …thanks to Juan Martinez.

        But I also want to say, Jodi Arias’ attorneys did an EXCEPTIONAL job overall. They vigorously defended her, they fought for her as if they believed her innocent of the charges. They stumbled yes- just as Martinez did. Of the two defense attys I thought Kirk Nurmi the more talented. Jen Wilmott seemed as if she was often overwhelmed and her time consuming attention and reliance on her notes ended up breaking up the flow of the defense imo. But again, their defendant made their job so absolutely impossible with the FACTS of the case that I think Arias should be on her knees in thanks to them..It is certainly disgusting imo that she is saying to anyone that will listen that she was “not 100% happy with their strategy”. Arias I am sure believes that they should have been willing to put on evidence that was knowingly or likely false.

        So BOTH attorneys stumbled and BOTH were excellent imo. BOTH did their jobs and fought the good fight.

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        • Brad

          Wow Guilty . . . I so disagree with everything you have to say. As starters, I thought Juan Martinez proved only that he is a bully and mostly capable of throwing everything (including cameras and pens) at the wall to see which of his theories the gullible jury would believe. A good example, is the felony murder vs premeditation. Which is it Juan? Did Jodi steal the gun from her grandparent’s house (as per his premeditation theory) or did she use Travis’s gun? You can’t have it both ways. Unfortunately, I think the Jury (with the exception of the foreman) was too stupid to clue in to what Juan was doing. You mention this in your statement

          I saw absolutely no proof of premeditation . . . only that a skewered jury had already made up their minds prior to hearing any evidence, most certainly due to the judge’s failure to sequester the jury. A couple of jurors even admitted in their tv interviews that they decided Jodi was guilty during opening statements. What a sad statement for our justice system that is supposed to consider defendants ‘innocent until proven guilty’. “Proof of guilt” is not validated during opening statements. As for dragging out witness cross-examination, I think Juan took the prize there with his ridiculous and insulting questioning of the “professional” witnesses used for Jodi’s defense . . . unlike the in-experienced neophyte DeMarte and dishonest Kevin Horn and Esteban Flores who changed their stories so they would match Juan’s theories.

          All of this is summed best in John’s concluding statement: “You can be a good prosecutor and not be very intelligent at all. Which brings us back to Martinez.”

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          • GUILTY beyond a shadow of a doubt

            Brad:

            WHO threw everything at the wall? NOT Martinez. Contrary to popular opinion by some, the prosecution does NOT have to be total mind readers and know beyond a shadow of a doubt things that could only be known by the assailant and the victim. The prosecution NEVER stated which injury came first until trial..and that was based on a Medical Examiners sound experience. Just becs the defense attempted to portray it as “switching up their theory”, we shall see very shortly once transcripts are released and unsealed what exactly happened at the probable cause hearing, the exact questioning that transpired and what may have been behind the Kirk Nurmi allegations. We shall see why judge stephens and the supreme court rejected so quickly a request for mistrial for prosec misconduct.

            I saw the prosecution present an abundance of circumstantial evidence that proved Jodi Arias had premeditated the murder of Travis Alexander. The evidence the state presented was based on the actions and events surrounding the defendant-they didn’t make that stuff up. I saw no examples of Juan Martinez throwing out all kinds of things to see what would stick. On the contrary I saw the defense basically claiming that Jodi Arias was either the most unlucky individual on planet earth or the luckiest-depending on the scenario -and the entire world -every single person that came in contact with her…conspired against her to just make her LOOK guilty. It was just a coincidence and bad luck that Travis Alexander happened to send Arias just days prior to his killing a text message in which he said she was the worst thing that ever happened to him, that she had hurt him more than his father’s death, that she was a liar, a manipulator and a sociopath and that he was going to reveal things about her to their family and friends. It was just a coincidence that thieves robbed her grandparents home and took a 9mm gun, the exact caliber of the gun used to shoot Travis, and a DVR with remote control and left other guns alone and took only a few other things -when far more cash friendly items were ignored. It was just a rotten situation that the car rental guy was lying when he remembered Arias had blonde hair when really it was already dark after he spoke with her for about 15 minutes. He was also lying when he said she specifically told him she would be using the car strictly for local errands as opposed to a long road trip since we know her road trip had been planned for at least ten days prior. It was just a coincidence that Arias happened to have no proof whatsoever..no paper trail of having reserved the car thru Priceline and it was because she had found a better price on PRICELINE in Redding Ca instead of from her local agency that she drove 90 miles away to rent a car. It was just a coincidence that she called Darryl Brewer days before her trip and then again on June 2, to remind him she needed to borrow 2 -5 gallon gas cans for her trip and it was just a coincidence that Darryl was LYING about her having told him she was specifically going to Arizona at that time -when according to Jodi Arias- on the stand -at that time she had had NO intentions of going to Arizona as Travis had not as of yet “guilted” her into coming to him.
            It was also just a complete coincidence that Jodi Arias after having gotten the the two 5 gallon gas cans from Darryl and having left his house, had to turn around and go BACK to Darryl’s house to return a DVR “remote Control” that she for some very odd and strange reason had with her in her CAR and the DVR remote belonged to Darryl. Now. Its just a complete coincidence that some people immediately connected the grandparents stolen DVR and remote with this odd remote control return to Darryl. Aside from the strangeness of Arias or anyone having a remote control to a DVR in her car..the connection to the robbery DVR is an incredible bad break for Jodi Arias.

            It was just another incredible coincidence that despite their being proof by way of a receipt- that Arias purchased another 5 gallon gas can at a Salinas Walmart, (giving her now a total of three 5 gall gas cans) that her claim about having changed her mind and returning it “to the same Walmart she purchased it from” (yes, its on record she said this) -the Walmart she returned it to had NO record of any 5 gall gas can return for that day on any of the cash registers in that walmart. It was just a coincidence also that the receipt she had for its purchase -if she really returned it- was not marked up in the standard way returns are at Walmart.

            It was also just a bizarre coincidence that two separate Arias gas station purchases show evidence that she did indeed filled up another 15 gallons worth of gas after having filled her rent a car gas tank.

            So its really just a coincidence that it APPEARED that Jodi Arias was trying to cover her tracks when she started heading into Arizona. The gas cans were really nothing more than a prudent safety measure so she did not run risk of running out of gas and being stranded, despite the fact there are gas stations aplenty all through out the route she took and not a clear attempt to avoid having to fill up at any gas stations in Arizona. Some people say had she wanted to she could have simply bought gas with cash if she ws really trying to NOT leave a paper trail. But that doesn’t account for any video footage that is commonly present at gas stations throughout the country. Incredible bad luck that her cell phone suddenly died just before she reached the Arizona border making it impossible for cell phone records to ping Arizona cell towers as she made her way to Travis.

            Its just a strange coincidence that she took a photo of herself where her hair looks remarkably darker on june 3 than it did in the other photos the defense showed where she had blondish brown hair.

            Its just a strange coincidence she happens to remember enough about the killing to mitigate the cruelty of stab first and to claim self defense but strangely goes into a dissociative fog so that she does not have to explain away how and why the autopsy shows that self defense is a wholly unlikely scenario. The list goes on and on. Every single thing the state showed was based on Arias’ actual actions and statements. THE PROSECUTOR was simply showing the obvious interpretation of all her actions.

            WHICH jurors admitted or claimed they made up their minds as to her guilt during opening statements? I never heard that in terms of premeditation and I believe I have watched all jurors interviews. Please link or tell me which jurors and where said this. As for “guilt” are you referring to the premeditation or the killing period? I have heard some on some blogs who support her say she didn’t even do it at all. Please remember during opening stmts her own attys said “Jodi Arias KILLED Travis Alexander. There is NO doubt about it.” When her own attys say this in opening …you cannot get angry that people accept that.

            You can say what you want about the cross examination of Alyce LaViolette and Samuels and Dr Geffner. But when compared with the state’s witnesses, Dr Jill Hayes, Dr Janeen DeMarte (she may be young and not have the years behind her like LaViolette, but she put to shame Alyce LaViolette’s credibility) the credibility of the witnesses and believability of them by the jurors is shown by the jurors deluge of questions for the defense experts and very few if any for the state’s.

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            • GUILTY beyond a shadow of a doubt

              And why would that Be? Why so many questions for the defense experts? Because their testimony did not pass the smell test. Alyce LaViolette myopically searched to find examples of what could be explained as domestic violence. She did not ever consider once whether or not Arias was simply making the claims of abuse for secondary gain. She ADMITTED this on the stand several times. As any reasonable person knows, one can find “abuse” in almost every relationship out there. But more than that, Alyce’s testimony showed she was guilty of using double standards during her evaluation. THIS is a problem for ANY expert witness. One cannot say that context is all important when it benefits and explains away the bad behavior of the defendant but then say that context is NOT important when it came to the victim. She also lied on teh stand when discussing the behavior of stalking victims. She said the stalking victims are unlike abuse victims in that they always report the stalking to the authorities becs stalking is a scary thing. THIS is an absolute bald faced lie or at the very least an intentional misleading to the jury as to what the facts are about stalking. The research states that 60% of stalking victims DO NOT report stalking when its done by an intimate partner. And HALF of those who finally DO report state that the stalking went on by their partner for a FULL YEAR prior to them reporting the stalking to the behavior. In many instances throughout defense expert witness testimony, the witnesses attempted to present a picture that did not seem quite right. This is why the defense experts had so many questions. ON the contrary, when an expert witness is CLEAR and makes SENSE, the jury is satisfied with the testimony and does not NEED to ask questions.

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  16. Searched google to see if I could come up with some verifiable stats on the percentage of judges who were former prosecutors. But when sticking the term “prosecutor” in the search terms up pops a zillion news articles regarding current improper judicial & prosecutor misconduct in various cases.

    However did find a piece by the Law Firm of Darryl Genis. General comments regarding the prosecutorial background of the majority of judges, followed by particulars re: judicial bias in the prosecution of DUI cases.

    Why Judges Favor the Prosecution in DUI Cases
    ~~~Judges are Taught to be Biased in Favor of the Prosecution
    http://www.winyourdui.com/santa_barbara_dui_defense/prosecution.html

    Interesting comment that the road most chosen to gain a judgeship as the end game of ones career plan is through becoming a prosecutor first.
    Kinda like: How To Become A Judge.
    Step A: Get JD
    Step B: Get barred
    Step C: Get prosecutor job.

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  17. Prosecutors As Judges
    Law Review article on how current laws allow prosecutors to in effect act as judges in the cases they prosecute. ( + Lots of good footnote citations)
    http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1033&context=wlulr

    Erik%20Luna%20and%20Marianne%20Wade,%20Prosecutors%20as%20Judges,%2067%20Wash.%20&%20Lee%20L.%20Rev.%201413%20(2010)

    http://scholarlycommons.law.wlu.edu/wlulr/vol67/iss4/6

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  18. Erik Luna and Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413 (2010)

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