J. 10 Kinds of Unfairness in the Jodi Arias Trial

A Summary by a Concerned Citizen

1 Intimidation of defense. Defense counsel, expert witnesses, and prospective character witnesses all received death threats, other threats, or actual injuries which affected their behavior. For example, domestic-violence expert Alyce LaViolette, during her testimony, was treated in hospital for anxiety. At the same time, there was a national campaign to ruin her reputation by posting bad reviews of her books and by pressing organizations to cancel speaking engagements. The judge took no effective action to protect the defense from any of these acts, which are state, and arguably federal, crimes.

2 Due process I: essential elements. Arias was charged with first-degree murder on two alternate theories: premeditation and felony murder. Yet the felony in question was never definitely specified, even in the state’s closing argument. At midtrial, and briefly in closing, the state said it was second- degree burglary with intent to assault. More often in closing, the state said it was second-degree burglary with intent to steal a gun. It should be viewed as a Sixth-Amendment violation for a defendant not to be told the details of the charges against her – the essential elements of the crime – in her indictment, long before trial. Forgy v. Norris, 64 F.3d 399 (8th Cir. 1995). Also, the jury was not even instructed as to which such ulterior offenses are felonies, though ‘felony’ is a key term in the definition of burglary.

3 Due process II: guilt via state falsehood. In closing, the state invited the jury to convict Arias of felony murder based on the second-degree burglary of unlawfully remaining in Travis Alexander’s house with the intent to steal his gun. Yet the state, in attacking Arias’ self-defense story, had argued vigorously that Alexander owned no gun. Rather, a mainstay of its case for premeditation was to accuse Arias of stealing her grandfather’s gun a week before. Thus, the jury was invited to convict her of a crime by finding that one of the state’s own main assertions was false beyond reasonable doubt. That is likewise inconsistent with due process.

4 Irrational verdict I: felony murder. In the end, seven jurors voted for both premeditation and felony murder. There are two reasons why these votes should have been voided. First, the state provided exactly zero evidence for gun-theft felony murder beyond the killing itself and the gun theft, which were undisputed. In closing, the prosecutor falsely claimed that these two elements suffice for felony murder. Rather, what is also required, on the gun-theft theory, is that Arias, in remaining, had the “objective” (the jury instructions’ gloss on ‘intent’) of stealing Alexander’s gun, and killed him in furtherance of that goal. But there was no evidence for this, and no reasonable juror could believe it. Obviously, Arias stole the gun to hide her killing; she did not kill him to get a cheap gun, for which, defense and prosecution agreed, she had sources near home, not a thousand miles away. The judge should have dismissed the felony-murder charge, as the defense had asked before.

5 Irrational verdict II: premeditation. Unanimity for premeditation, but not for felony murder, suggests that the jury actually considered only the gun-theft theory of felony murder, since the assault version is implied by premeditation. If so, these seven jurors could not have rested their premeditation vote on a belief that Arias stole her grandfather’s gun. But the other evidence of premeditation is very weak. It consists of aspects of a trip that any traveler might experience, amid multiple facts negating concealment. To dye your hair, to rent a car in a different town, to ask not to have a red one, to take gas cans into the desert, to turn off (or lose power to) your cellphone there, to find your license plate upside down – all these have obvious innocent explanations. On the other hand, as the defense noted, no one seeking to conceal her trip would borrow gas cans from a friend, visit other friends along the way, make multiple bank transactions, stop at a beauty salon, buy gas with a debit card when ample cash was at hand, or save her receipts. On such facts, a competent, unbiased judge would void these seven jurors’ premeditation votes as unreasonable. With both votes of the seven nullified, the verdict falls.

6 State perjury. Taken together, medical examiner Kevin Horn’s autopsy report and his testimony assert an anatomical impossibility: that the bullet passed through Alexander’s right frontal lobe, yet his dura mater (the outermost membrane covering the brain) was intact. This is as impossible as a bullet’s piercing the heart without breaking the skin. At trial, Horn said his dura-mater statement was a “typo.” But he did not say what it was a typo for. The error could not be just a missing ‘not’: autopsy reports describe injuries; they do not merely say organs are “not intact.” Moreover, the actual statement (p. 7) is: “The dura mater and falx cerebri are intact.” The falx cerebri is not near the alleged bullet track. Also, at a pretrial hearing and in depositions, Detective Esteban Flores testified that, based on what Horn had told him the day before the hearing, the gunshot came first, and it did not incapacitate Alexander or did so only briefly. This agrees with Arias’ self-defense story. At trial, however, Horn claimed that the gunshot wound came last and had to be incapacitating. He also claimed that he could not recall ever speaking to Flores about the case. So, before or during trial, the state switched not just the details of its charges, but even its key facts. It is probable that one or both of these state witnesses committed perjury.

7 Other prosecution misconduct. Prosecutor Juan Martinez denied the existence of evidence, then introduced it against the defendant at trial. He also withheld other key evidence, like the camera, from the defense. At trial, he threw objects around the courtroom, including an exhibit (the camera). He continually bullied defense witnesses, including experts, argued with them, cut off their answers, and distorted their testimony. He even misdescribed his own witness’s testimony (the “bloody” handprint, which a state witness had said tested negative for blood). Defense objections to his outrageous courtroom conduct were consistently but wrongly overruled. In closing, he flagrantly misstated the law of felony murder (§4).

8 Nonsequestration of jury. An unprecedented media campaign of hatred against Arias preceded and accompanied the trial. One channel, HLN, devoted up to eight hours a day to mocking, vilifying, dehumanizing, and demonizing her. HLN’s torrent of abuse has no counterpart but Oceania’s campaign against Emmanuel Goldstein, in 1984. Numerous hate sites also sprang up in social media. Jurors had free access via internet to all of this prejudicial material – not just at home, but even in the courthouse itself. The judge’s actions to avoid jury taint were clearly ineffective, since a dismissed juror admitted talking with other people about the case, though he had never said so when questioned by the judge. A juror question also showed access to news coverage. Even County Attorney Bill Montgomery had warned against not sequestering the jury in a case of such national prominence. Juries were sequestered in two similar high-publicity trials, those of Casey Anthony and George Zimmerman.

9 Reasonable doubt on self-defense. LaViolette explained how the Alexander-Arias relationship resembled the abusive ones on which she is an expert, and she found Arias’ story wholly credible. The prosecution bore the burden (in Arizona) of disproving self-defense beyond reasonable doubt. On what basis can a juror conclude that an expert opinion is false beyond reasonable doubt? True, the jury had other evidence besides. But the state had earlier denied its own gunshot claims (§6), incapacitation was further rebutted by a defense brain expert, and the premeditation evidence was very weak (§5). None of this extra evidence shows that no reasonable person could hold LaViolette’s view of Arias’ mental state, as is required to vote for conviction.

10 Governor’s statement of guilt. To complete a perfect storm of injustice, Arizona governor Jan Brewer stated on television that Arias was guilty – during jury deliberations.