DAY 21 “SMOKE, MIRRORS AND THE ARM OF JUSTICE” by: Paul A. Sanders, Jr. The 13th Juror @The13thJurorMD (Twitter)

DAY 21

“SMOKE, MIRRORS AND THE ARM OF JUSTICE”

There are times that the movements in a Courtroom can be akin to the moving of pieces on a Chess board. Every move that a game piece makes on the board has a consequence. An average Chess player knows how to move the pieces. A good Chess player thinks three to five moves ahead when he moves his pieces. In the rare times that a Master Chess player loses, he can tell you how he lost by looking five moves backwards.

The day began with my attending a motion hearing at the Jodi Arias Death Penalty Retrial. I do not normally attend hearings because I do not want to be influenced too much beyond what a Juror may think, but there was too much vested in this. The Jury was not present.
Kirk Nurmi was at the podium making his plea to Judge Stevens that the transcripts from testimony on Halloween of this past year should not be released to the public or the media. His hands grasped the podium on either side as he faced the Judge. He was wearing a charcoal colored suit with a blue shirt and blue striped tie.

“…My client cannot present a full case for life if these documents are released. Mitigating evidence will be compromised,” he pleaded. He looked down at his notes and then back at the Judge. “This is not about the First Amendment and it is not about KPNX, the media or public rights. This is about our showing mitigating factors and her life. She is not actualized mitigation. The Defendant begs that we do not release these manuscripts.”

“Thank you,” Judge Stevens said as she peered over the rims of her glasses.

Kirk Nurmi picked up his legal pad and made his way back to the defense table. He sat his large frame down while David Bodney stepped toward the podium.

David Bodney looks remarkably like Juan Martinez in both size and the immaculate way he wears his attire. His tie is knotted perfectly, his shirt starched and black wing-tipped shoes are brilliantly shined. His walk is directed, purposeful and confident. His voice is calm with a soft rashness to it which is similar to that of Juan Martinez as well.

His hands grasp the podium and he looks directly at Judge Stevens without looking at his yellow legal pad. “Your Honor, we are not here as suggested by the defense to deal a blow to mitigation. We are here to simply ask for access of these manuscripts of testimony already given. The Supreme Court has not granted a stay on the decision of the Court of Appeals. The Court of Appeals has ruled that media coverage of testimony falls within the framework of the law.”

David Bodney paused and looked at his legal pad and continued. His voice was paced and measured. “What are the standards for Jodi Arias to testify in open Court?” he asked rhetorically.

Judge Stevens looked at him with interest just as she had done when Kirk Nurmi spoke.

“What are the standards for a defendant for any defendant to testify in Court? What of a defendant who wants to testify in secret?” he asked as one arm waved toward the defense table. “She got her wish to testify. This is about First Amendment rights and I fail to see the harm in the release of this testimony. I see no harm. There is none. The Supreme Court has had five days to issue a stay on this matter. I remind this Court, there was also a stay granted by the Court of Appeals and we ask again for the immediate release of these transcripts.”

David Bodney nodded his head that he was finished, picked up his legal pad and went back to the table behind the Prosecution.

Judge Stevens returned the nod from her perch above the main floor of the Courtroom. She stacked some papers in order and looked her computer screen. She straightened her glasses and looked down toward the attorneys. She leaned forward, fixed her glasses by pushing them slightly up the bridge of her nose.

“Gentlemen, this issue is still before the Supreme Court and there has been no proceeding by the Supreme Court. The minute entries will remain sealed. If we were to unseal them, we could not undue the potential damage these might cause. This Court believes that it is best that we wait for a Supreme Court decision before we make a decision,” she said, pausing.

She appeared to look at something on the computer screen next to her. She turned back toward the waiting attorneys, her voice more resolute than it had begun. “There is to be no delay on the release of transcripts once an order has been entered by the higher court. Since they have only had since Monday of this week, it is this Court’s decision that we defer this until next Friday where we will have a status conference,” she said firmly.

She looked back toward her computer again and it must have been a calendar she was looking at. “So, that will be Friday, the sixteenth at 8:30,” she said closing the matter.

We were at a stalemate on the issue.

Hearing the words from Judge Stevens almost two hours later, “Bring in the Jury”, seemed almost foreign in that we hadn’t heard these words for the better part of three weeks. It was a good feeling that we were moving forward.

Randy walked authoritatively across the Courtroom with his head as he went to the Jury room door. I knew they were on the other side lined in sequential order along the tiled floors of “the Green Mile”. I will bet they were itching to get going.
The Court was standing as the Jury of sixteen marched to their seats. “Long time, no see”, I thought. The march of their cadence almost echoed in the Courtroom.

I speak as a former Juror with six months of walking into a Courthouse in the Marissa DeVault Trial and I understand the feeling of unexpected delays and I also like to think I know the sentiments of this Jury after such a long delay.

This Jury is certainly tired of the delays that have slowed this trial to a halt at times. They are hungry and they want resolution in this matter. In terms of the financial stress of being paid for one day out of nineteen, it is a burden. The greater burden is the weight of Travis Alexander and the Justice that they are to serve.

Judge Stevens opened by apologizing to the Jury for the long delay and then reminded them that this was discussed when they were selected.. She also explained that the witness they had last seen (Dr. Geffner) was not available until the twentieth of the month. In that, the defense was going to proceed with the next witness. The next witness would be using a pseudonym for fear of reprisal. The Jury was not to take that in consideration.

The Court waited silently while a young man around thirty walked down the center aisle toward the front of the Courtroom to be sworn in. He was wearing a shiny light blue suit that looked new and dressed in an opened collared shirt. His most distinguishing feature was the very full dark brown beard that seemed to pillow out from his chin. His head was shaved and he was without a mustache.

“What is your name?” the Court Assistant next to Judge Stevens asked him behind her perch.

“John Smith,” he answered.

I had to look up to make sure I thought I heard what I heard. Even though the name is as familiar as saying John Doe, I had never, until now met anyone named, “John Smith”. I dutifully wrote it in my notes while he spelled his name to the Judge’s Assistant.

We watched as his five-foot seven frame sat down and he reminded me of the bearded baseball players from the Boston Red Sox or San Francisco Giants from years past. One could imagine a hat going over his shiny and shaved head and fitting right in as a short stop.

Instead, he was a soft spoken man with a somewhat deep voice. He was extremely polite throughout. I do not think he knew what he was getting into when he chose to testify but held himself well in confidence and calmness simultaneously. It was nice to see someone other than the last two Psychologists. 

The pawn in a Chess game can be the weakest piece on a Chess board and it can be one of the most powerful. At the same time, it can be swept off the board and out of the game with little effort.

This was just the case with John Smith.

Kirk Nurmi stepped in the open area between the podium and the Jury box. He put a pleasant look on his face and began his questioning. He sometimes resembles “Lurch” with his tall and bulky frame. He stands as if he wished he were not so tall with his head leaning forward as he questions his witness.

“You were involved in this case in computer forensics?” he asks Mr. Smith.

“Yes, Sir,” he answers politely.

“What do you do?”

“I am a Data Scientist.”

“Very good,” Kirk Nurmi answers as if he is making a mental note, pausing. “What area did you grow up in,” he says in an incomplete sentence, “or let me ask you this, where did you grow up?”
“I grew up in San Jose, California,” he answers. He sounds a little like a Data Scientist in his flat tone. “I have been doing computers all my life,” he volunteers.

“Okay. What is encrypted data?” he asks him.

“It is data that is not in plain text or easily read.”

Kirk Nurmi nods and walks to the defense table. The Jury’s eyes watch him as he looks at his legal pad and begins his walk back to the center of the room. It feels like everything has grinded to a slow crawl in his pace of questioning and his walk.

“You talked about part of your job…” he starts, asking with his voice halting. “Well, wait a minute, before we go there, let’s back up for a moment. Let me ask you this, do you own a company?”

“Yes, Sir,” John Smith answers.

“Do you have formal training?”

“No, Sir, but I have been around computers all my life,” he answers innocently.

“Do you have a degree?”

“No, I do not.”

“Does that inhibit your ability in any way?”

“No, Sir. I have always been around computers.”

“I see. What kind of company do you own?” Kirk Nurmi asks. He reminds me of an Arthur Conan Doyle character.

“A security company.”

“So you specialize in getting data that people want to hide?”

“I look for hidden files,” he answers. “It’s a variety of things I look for.”

“So you look for hidden files,” Kirk Nurmi repeats as he looks above the Jury. He turns back toward his witness. “What do you do to ferret this information out?”

“Objection!” Juan Martinez hollers as he stands up. “Lack of foundation.”

“Please approach,” Judge Stevens commands.

I speak as a Juror and I still think as a Juror. The defense made a great mistake putting this “Data Scientist” on the stand. Everything that he was going to “Ferret” out of this witness was junk to a Jury because he had simply impeached him by showing this witness to have no education or formal training in the field he was supposed to be an “expert” in..

There were times that, as a Jury, we may have tired of hearing the life history of an expert prior to their being questioned as to the task at hand. We just wanted to see forward progress. In the end, however, we learned that education and background was important in determining validity in testimony.

This witness seemed like he could have been the guy that changes your oil once a month. It had the illusion that he was a “Techie” who loved to tinker around with computers and then, somehow, considered himself a Data Scientist. To a Jury, a title is usually followed by a document. I am sure the Jury liked him well enough as a person but his testimony felt like junk science.

The Jury may not know this now because they have never deliberated but I know his testimony in the deliberation room will have as much value as a fart in a windstorm. They will be irritated. I have never seen a witness with less value except for that of Stan in the Marissa DeVault Trial (Brain Damage: A Juror’s Tale available on Amazon.com).

Kirk Nurmi put a sheet of paper up on the projector screens that were displayed around the Courtroom with the largest half room screen being in front of them.

He was laying the foundation that Travis Alexander’s computer hard drive had images of pornography on it. This evidence would go to show that Travis Alexander did, in fact, have two different versions of himself representing a Dr. Jekyll and Mr. Hyde persona. It would further go toward mitigation in that it demonstrated that Arias lived in an abusive relationship and this gave cause for life in prison. The human initiated contact with pornography sites clearly supported Arias’ claims.

I have said before that Juries love evidence that they can see, touch and feel. They like evidence that is presented in a clear and concise manner so that they may connect the dots without risking great weight to their conscience. They are also hungry for information and I saw many pens scribbling in their notepads as the testimony went along.

A Sharpie scrawled diagram adorned the screens for the Jury to see. It looked like somebody scribbled it together on their knee while they were driving to work. There were three trapezoid looking boxes with open corners scribbled on the screen. A large box featured a hand written tag as “Toshiba”. Two hand drawn lines connected two lower and smaller boxes where one was scribbled with an “08” inside and another with an “09” inside in reference to 2008 and 2009 respectively.

The Counselor proceeded to question the witness on its importance and how they each are modified copies of each other. The subliminal image in the mind of the Juror is that this does not look like evidence. One would think that in a trial of this importance, there would be some care taken in presentation. It looked amateur.

John Smith was given the reign’s on his computer that displayed across the Courtroom when Kirk Nurmi finally took down the Sharpie scratched display. The witness tapped his keys and the results of his computer screen could be seen on the projection screen. He was speedy flipping through files and one could see files and sub-files and various computer talk data.

We proceeded to spend two hours talking about pornography sites that were dated only on June 1, 2008. They had such colorful names as Sex Maniac, Daily Pornography Magazine, Dancing Babes, Good Anal and Perfect Blow Job. Mr. Smith was able to show that he could tell long that Travis had been on these sites and that it was all night long on June 1, 2008. There were sites he was on for a mere six seconds and others for twenty minutes or so.

A Juror is a reasonable human being. Each was selected because each have certain experiences that can help render good decisions. None of these Jurors fell off the bus yesterday. Is it reasonable that a person would coincidentally discover pornography three days before this person would be murdered with cruel intent? The expert does not speak of dates prior to that because they were “cleaned” by some unidentifiable program.

Jurors are not stupid.

We broke for lunch.

I saw John Smith having a cigarette during the lunch break. He stood far away on a street corner, his feet kicking at the gravel. A homeless man sat on a bench nearby asking passers’ by, “Extra change?”

In those moments, I did feel bad for him. He was about to go to slaughter and I wondered which limb Juan Martinez was going to remove first.

It was not long after lunch that Kirk Nurmi rested with his witness, Mr. Smith.

Juan Martinez bounded out from behind the Prosecution table and approached the witness before anyone realized what was happening. There was not a second delay before he was only four feet from the defenseless John Smith. It was like a thunderclap had just reverberated off the walls, its energy commanding.

“I’m sorry, Sir,” Juan said boldly, “I did not catch your name! One thing you did not tell us was your name! Please give us your name, Sir!”

This witness was a tough gentleman throughout the day but in that moment there was a look of a deer in headlights when Juan Martinez exploded onto the scene. It was only for a moment but it was there. He took it like a man, I will give him that.

I swear that I heard something hit against something when Kirk Nurmi exploded out of his seat yelling his objection loudly. I am not sure because every one of us watching or reporting on it almost gasped audibly. This shockwave ran through the room like a truth finally released from its cold and dark cell. There was a moment of clarity that stunned everyone in the room that precipitated the complete and utter decimation of Mr. John Smith.

It was the first burst of energy and life in this Trial that we had not seen since long before Christmas. It was the uncloaking of secrets and it was the removal of the mask of secrecy that had clouded a reasonable man’s logic. Juan Martinez spoke as loudly as Travis Alexander would have had he been in the same shoes. It all seemed so far from the truth until this voice sucked the wind out of the Courtroom in a matter of seconds. Finally, Travis Alexander was in the room.

Judge Stevens immediately halted the Trial, recessed the Jury and the attorneys from the defense team and Juan Martinez went into a bench conference.

The Jury was called back in moments later. They filed into their seats while Juan Martinez waited patiently. He almost looked pleasant in his demeanor. Once they were sat, he waited a moment and then paced forward a few steps toward the witness. He looked him straight in the eye. His feet were planted and he extended one hand forward as if to welcome him.

“What is your name, Sir?”

He looked toward the defense table fleetingly and then back at his adversary. “John Smith, Sir,” he answered firmly.

“John Smith is your name. Do you have a nickname, Sir?”

“Uh, yes, Sir,” he answered. Again he glanced toward the defense table.
There did not appear to be any help there.

“You use a nickname, don’t you?” Juan asked.

“Yes, Sir.”

“You used a nickname when you worked with Brian Neumeister, did you not?”

“Yes, Sir,” he answered politely.

“Brian Neumeister contacted you for assisting him with computers, did he not?” Juan asked with purpose.

”Yes, Sir.”

“Detective Flores was there, in Mesa with you in the room, wasn’t he?”

“He was, Sir,” he said looking toward the prosecution table where Esteban Flores, the lead detective in the case, sat in usual center seat.

“You attempted to assist him with a Compaq Presario with a Toshiba hard drive, am I right?” Juan asked him.

“Yes, it was the one from this case. I think the guy who died owned it.”

Juan did not react but I am sure he wanted to. I glanced toward the Jury and more were taking notes than I had seen throughout the length of the trial. The direction of questioning was fast paced and the energy level was high but controlled. It was riveting how Juan Martinez focused his direction on the witness and his line of questioning was without the consultation of notes.

He would take two steps forward when he asked a question and would generally take a step back when the witness responded to a question. There was a crescendo as it moved forward.

“But you could not get into the computer, could you?” he asked.

“No, Sir.”

“You did not bring an adaptor, am I right?”

“Yes, Sir.”

“Three days later you returned with an adaptor, didn’t you?”

“Yes, Sir.”

“You looked wherever you wanted on this Compaq Presario, did you not?”

“Yes, Sir,” Mr. Smith readily answered.

“You said that you only had seventy two hours to look at this computer, am I right?” Juan asked him. It felt like someone was getting lured into a trap.

“There was not a lot of time, Sir.”

“You saw this computer of September 14, 2014, right?”

“Yes, Sir.”

“Did you work on this computer in October of 2014,” Juan asked stepped forward.

“No, Sir?”

“What about November? Did you work on it in November?”

“There were some things going that I…”

“Yes or no,” Juan barked at him. “Did you work on it in November?”

Juan looked at his shoes and then back up at the witness. “You said you only had seventy hours to work on this?”

“Yes, Sir,” he answered.

“You have not done anything with this computer since September of 2014. It was after the Holidays that you were asked to be interviewed, am I right?”

“It was after the Holidays, Sir,” he answered. 

Juan paused. “It was January second of this year that you first interviewed, is it not?”

“Yes, I think it was.”

The air and the pace moved quickly as Juan Martinez took this “Data Scientist” to task making him look as if he believed in Leprechaun’s. Once again, the data looked loose and fuzzy. The fact that he was hiding under the name, “John Smith” was likened to the wolf in sheep’s clothing sitting in the defendant’s chair. It did not feel like truth.

I would like to think that somewhere in the middle of the afternoon, Travis Alexander smiled from above when the day went south for Kirk Nurmi and the defense team.

I was busily writing notes when Kathy Brown tapped me who was seated next to me. She showed me the face of her I-Pad. It displayed a seconds old message saying that the Supreme Court had ruled against the stay in Superior Court on the release of secret testimony.

It took a few moments to process the power of the image of Lady Justice extending her sword into the Courtroom as if to say that we do not have secret trials and we do not have secret witnesses. We have a transparency in our Justice system for all to see and today was a great victory for that.

John Smith was merely a pawn that was swiftly discarded by Juan Martinez and the prosecution team although his value was determined to be nothing by the defense when they presented this lamb to slaughter by failing to give him any credentials.

The Jury is not aware of these events. They have had the opportunity to see Arias on the witness stand. One does not have to tell me that Jennifer Willmott handled her questioning. It would be expected that she spoke of traumatic sexual escapades in her relationship with Travis Alexander. It would not surprise me if the Jury saw tears flow from her eyes from an emotionless soul, the tracks of crocodile tears staining her face.

This victory is great for the public and the media but its true victory is enshrouded in the cloth of the robes that flow over the figure of Lady Justice.

It is a great victory for Travis Alexander because the Supreme Court had just said that the rights of Jodi Arias are not more important than the rights of the public and the media. It follows, if one were to scan between the lines, that the rights of Jodi Arias are not more important than the victim, Travis Alexander. It signals the progression of law in this case.

The box has been opened for the Jury and it must be resolved.

I wish I could have seen the face of Arias as she was told the news that she would have to complete the secret testimony given, and deal with the wrath of Juan, or to have the testimony given completely thrown out.

There is a reality in the third phase of the death penalty trial and the Jury wants to hear from the defendant. In my case, we got only the “Statement of Allocution” from Marissa DeVault. She did not choose to testify.

If this were a game of Chess, the prosecution has just put the defense in “Check”. The defendant has to make a decision and there is only one decision she can make. Were this defendant to choose to discard her testimony, the Jury will be left with the impression that the Defendant continues to hide something. This hiding goes directly toward aggravation. At the least, it has no mitigating value. 

Her only alternative is to get on the stand. The Jury needs her to get on the stand so they can hear the greatest two missing mitigating factors in the scenario that she has created. She must show remorse and she must take ownership of the crime.

She will do neither when she is on the stand but the damage will be greater should she refuse to return to the stand. Her life depends upon it and the Jury knows it whether she chooses to believe it or not.

I cannot help but wondering if after the conclusion of this Chess game, that a Master of Chess would be able to trace his fatal move backwards to the point in time when Arias took the stand in secret.

The killer must get on the stand or face certain checkmate…

“Every good relationship that develops as a result of this Trial is the manifestation of the Spirit of Travis Alexander.”

Justice 4 Travis Alexander…

Justice for Dale…

Paul A. Sanders, Jr.
The 13th Juror @The13thJurorMD (Twitter)