DAY 36 “ACCOUNTABILITY LOOMS” By: Paul Sanders The 13th Juror MD

The Jodi Arias Death Penalty Retrial: A Juror’s Perspective

by The 13th Juror MD

DAY 36

“ACCOUNTABILITY LOOMS”

Eight months ago, I was sitting in a jury box with fourteen others when we received our only collective admonishment. We were seated in the courtroom of Judge Roland Steinle III. Jurors and the judge rarely communicate except in the abstract messages of the court and its theater. We would see fresh treats every Monday in the deliberation room and this was the extent of the judge sending a kind message to the jury.

We had returned from lunch and were waiting for the continuation of the prosecution case against Marissa DeVault in the cruel and heinous death of Dale Harrell. Judge Steinle raised his hand to the prosecutor, Eric Basta, as he turned to face the jury.

“I received a notification from a juror with a running commentary regarding a piece of audio evidence.” He leaned forward in his chair as if to bring himself closer to us. “I do not appreciate the tone of voice in this letter. This court presents evidence as it presents evidence and it is not your position to criticize its presentation.”

None of us had been in deliberation so our restriction to speak of the trial amongst each other made this all a greater surprise. The judge did not know who made the commentary on the CD that had played the day before. I will grant the juror who wrote it points for mentioning that the quality was that of the parents of Charlie Brown speaking. The tapes of Marissa DeVault calling from Buckeye jail had been muffled and the playing of them through the speakers came out greatly distorted.

“If this were 1979,” Steinle boomed, “You would see the evidence on the floor and you would go back into deliberation with a pencil and a pad of paper. You are lucky to get the kind of evidence you get today. You will have plenty of opportunity to adjust sound while you are back there. Do you understand?”

We nodded and each us felt as we had been part of the crime. I am sure most of us were red with embarrassment.

This morning began with the usual routine of meeting in the public overflow room before being escorted upstairs by Janet, the court assistant. The room was remarkably quiet when she arrived to explain the rules. Shortly thereafter, the regular trial watchers were told to wait in the hallway while Janet led the new trial watcher faces into the courtroom.

Janet came out of the courtroom and pressed the doors closed before she began speaking. At that point, I noticed a Public Information Officer standing there. Behind us, an armed sheriff waited behind us. He did not seem particularly interested in us.

“How many times have I told you to be quiet in the presence of any one walking around? If this incident had happened inside the building, you would not be allowed back in the building,” she said fairly loudly. Her face was flushed and her voice was shaking. “All of you know better than to make racial slurs at the attorneys!”

Kathy Brown stepped forward and interrupted her. “That is not what happened,” she stated. “This was taken out of context for what it was and I do not appreciate being told that we would do something like that. I’m sorry but that’s true.”

“I don’t want to hear it,” Janet said. “Somebody heard you and that’s that and I don’t care if you were singing the Star Spangled Banner.”

Thankfully, Kathy said nothing more. Somehow, we had gotten into the flack of the defense team tactics and the shrapnel wounds had to be accepted. It was painful but I knew this would pass. Besides, it was not as bad as getting reprimanded by judge Steinle.

I was proud of Kathy’s strength and composure in standing up us. She was firm and polite.

The issue was closed as far as the court went and our admonishment was heard and understood. It is best to accept and move forward just as we had when Judge Steinle did the same to a jury of twelve. Janet opened the door and let us in.

We were sat in the remaining seats. I busied myself with my notepads and the twittering began with the trial watchers that filled the seats. It did not go without notice that a Public Information Officer sat behind us as well as an armed guard being posted near the doors. It was a presence felt in a situation that did not need it. I know that Janet was doing her job and she had received heat from those above her who I am sure implied that she had lost control of those she was responsible for.

Pen in hand, my business was quick to resume as Juan Martinez, dressed in a black suit with a white shirt and peach colored tie, presented Damien Dashdown. I am sure the jury remembered a man who had sent Travis a response email to stop contacting his nine year-old daughter. His testimony was solved in one sentence when he said he thought the email from Travis Alexander was spam.

Kirk Nurmi got up after the short testimony given to the prosecution. Damien Dashdown denied Nurmi’s implication that “they must have known your daughter.”

There were no jury questions. The jury had figured as much a long time ago but it was good that Juan Martinez left the issue with nothing to question.

“We would like to call Lonnie Gorkin to the stand,” Juan Martinez said after the quick exit of the first witness.

Lonnie Gorkin made his way to be sworn in and then seated. He was a sizable gentleman wearing a black suit, white shirt and blue tie. He sat in the witness chair as if he were sitting in his Lazy Boy at home. He made himself comfortable and leaned back in the chair. He struck me as eager. He was an affable gentleman who turned toward the jury to explain every answer. It seemed effective in connecting to the folks in the jury box.

We quickly learned that he had a Bachelor of Science from Boston University. He spent many years working for Intel Corporation.

“Let me ask you this,” Juan Martinez started.

“Don’t you want to hear the rest of my training?” he asked, interrupting the prosecutor.

Juan stopped and looked at him. “Go ahead,” he said with a palm turned upward.

“Well, I have extensive training in FTK, N-Case and X-Waves. I am especially familiar with N-Case going back to 2003, Version three. I am now trained in the latest Version four,” he told the jury. He was proud of his training.

Juan Martinez made sure he finished his sentence. “Very good. When were you hired for this case?”

“2009.”

“You went to Mesa Police Department in December of 2009, right?” Juan asked. He started pacing without looking at his witness.

“I did,” he answered.

“What did you do there? With the laptop?”

Lonnie turned toward the jury. “I made a forensic copy. That is to say that I copied the hard drive when I was first there in 2009.”

“Why did you make that copy, Sir?”

“Really as a precaution. We want to keep the original evidence in original condition to prevent its being destroyed. We copied it down to a bit level,” he answered.

“What tool did you use for the Travis Alexander computer?”

“I believe we used N-Case, FTK and Net Analysis,” he stated.

“Are you familiar with ‘Autopsy’?” Juan Martinez asked he continued his short step pacing.

“No, I did not,” he answered as he looked to the jury again. “I learned early on to use peer reviewed programs or court approved programs. The wrong tool can give incomplete results so I stay away from the ‘Autopsy’ Program.”

“Did you look on this hard drive and see if it was accessed on June 19, 2009?”

“I did and learned that it was accessed at approximately 4:00 PM on June 19, 2009.”

Juan Martinez quickly walked to the prosecution table, picked up some evidence and brought it to the judge’s assistant to be copied and marked for the defense team and witness. “Let’s look at Exhibit Number 936. What time was it turned on?”

The witness looked at his document. “It was turned on at 3:58 PM and fifty-nine seconds.”

“What time was it terminated?” Juan Martinez asked.

“It was terminated at 4:10 PM and twenty seconds.”

“Was it accessed later?”

“It was not,” he stated.

“Did you have the opportunity to look at it last night?”

“I did,” Lonnie answered.

“Are you familiar with Spy Bot Search and Destroy?” Juan asked.

“I am,” he answered. “The program is for Windows and computer protection. When it is on the computer, it automatically generates a list of default sites.” He was looking toward the jury. “These sites have been determined by developers to be the most recognized of virus and malware sites.”

“How does it work?” Juan Martinez asked. His hands were clasped behind his back as he walked. He was on a search for information.

“This website list is similar to being inoculated with a flu virus to prevent the flu. Whenever a browser goes to a site, the program automatically verifies it against this predetermined list. In that, they are systematically blocked.”

“How many sites showed up on this registry list?”

“One hundred and sixty-three,” he answered.

Juan Martinez changed gears and moved into a discussion of a Helio phone and a message that was broken into five pieces. I am pretty sure the jury got lost at this point because nobody was taking notes.

Juan Martinez finished with his witness while Jennifer Willmott, wearing a Maroon business skirt with traditional high heeled shoes, stepped up and began her cross examination. In the end, it was pretty effective.

It did not help that the witness was extremely affable and generous in information with Willmott. For everything she asked, he was able to extrapolate his theories and research into long explanations for the jury. There was some note-taking.

The tower of information that Juan Martinez had accumulated for the jury was quickly reduced to rubble because the witness simply baffled the jury with trivial information that seemed to cloud the issues especially in regards to the Helio phone. He then confirmed that the material on Travis Alexander’s computer could have been accessed by a person on June 19, 2009.

Credit can be given to Jennifer Willmott for effective questioning that was succinct and directional yielding information that was able to cancel the witness out as a nonevent. If one were to refer to a Chess game, it would be akin to trading a pawn for a pawn. I do not think the jury is going to spend a lot of time on the computer issues.

Lonnie Gorkin had been a great witness for both the prosecution and the defense rendering and half day of testimony to nothing more valuable than a bottle cap tossed to the side of the road.

Judge Stephens looked over her desk toward the jury. “Are there any questions for this witness?” she asked.

Randy strutted his way across the courtroom and picked up one question in the basket on the rail in front of the jury. White noise hissed overhead as the attorneys and judge had a somewhat animated conversation. A few moments later, the white noise turned off.

Juan Martinez walked back to the prosecution table saying, “The State rests.”

The juror question was rejected for a reason we will never know. The juror who submitted the question will never know. It will become a secret within the framework of the trial.

I had a question turned down in the Marissa DeVault trial. The question had been directed to Dr. Karp when I asked, “You said the defendant suffered from PTSD. Did the trauma arise from the event of the murder or did the trauma come from being incarcerated?”

It was denied in silence.

Some questions are not presented to the witness from the jury, in the most part, because there is something too prejudicial to one side or the other. The positive swing was that only one question had been asked.

The state resting would have caused butterflies to jump in juror’s stomachs. They are not given a roadmap of what is left in both procedures and witnesses. Their hearing that the state rested meant not only had a major step been taken toward this trial finishing, it also increases the fear of becoming an alternate. There were only two jurors out of fifteen on my jury that would not have minded becoming alternates. I do not have to ask any of these jurors if they asked Randy or Janet when and how the alternate process worked.

These jurors left the building today knowing that the end was near. Judge Stephens gave them a ballpark finish date of February 26 through the 28th. I referred to my notes of yesterday, from information received outside the presence of the jury, to see the calendar. I was able to glean from it that there will be a defense witness on the 18th who will testify for two days. There is a local witness who is not available until the 20th. Dr. Geffner will return on the 25th for two days.

The lottery selection of alternates should be at the end of the month when the case is turned over to the jury. It is clear that Arias will not return to the stand. It is likely, as is standard in death penalty cases, that she will give a Statement of Allocution. This statement is made directly to the jury by the defendant. Its greatest strength for a defendant is in the admitting of ownership of the crime as well as showing genuine remorse. The date is unknown but I would expect shortly before the case’s responsibility shifts hands. There may or may not be another shot at victim impact statements. They were presented last October and I wonder, given the length of the trial, if the victims of this cruel and heinous crime, get a chance to voice their thoughts one more time.

It has crossed each juror’s mind that deliberations will finish in March. They are looking forward to finishing and to having their lives back but each knows it could be another six weeks away. They have a week off before the return on next Wednesday.

There is one thing each of these jurors does not want to do. They do not want to hang. They have been delegated the job of finishing what another jury had started. Our jury made an early commitment not to deadlock. For us to avoid that outcome, we had to listen to our heart in conjunction with eleven others and we had to understand each other without prejudice.

The third phase, the penalty phase, has a slight change in the semantics of a juror’s eventual decision. The prior two phases are based on the concept of “beyond a shadow of a doubt” in the verdict reaching process. The penalty phase deals primarily in the concept of “a preponderance of evidence”.

I am very comfortable with the case presented by Juan Martinez, in the big picture. The preponderance of evidence clearly leans toward aggravation. Juan Martinez had done an exemplary job. I think he got most of the jury. The position he is in would normally require that he get twelve of twelve. This jury will not want to hang, just as ours did not, and the preponderance of evidence trail leads me to believe that there is a good chance that this jury will find for the State.

Things could certainly change by the end of the month. Arias still has a shot to complete her testimony. Given her life is on the line, she would be bested suited to return to the stand. This jury cares little about computers and cares more about remorse and ownership of the crime.

I left the courthouse today thinking about the storm that had arrived over the trial watchers and how it had blown over just as quickly. It made me think of Travis Alexander and how his storm had not finished with the return of defense witnesses next week. It would be a final and desperate plea to save the defendant’s life. In that process, Travis would be dragged through the mud once again. It made me have empathy deeply for the family in the front row, as thousands upon thousands feel around the world for them. The family suffers in silence with great composure and fortitude while they watch the smearing of the images of Travis Alexander and compare it to their memories.

There will come a day, a day that is just beginning to break on the horizon, when a jury will be reduced to twelve. They will go into the deliberation room as a sign is turned on the door forbidding entry. They will begin a process that will reveal two critical things over time as they deliberate.

The first thing they will realize is the importance of the victim, Travis Alexander. There will be many jurors who will be fighting for the victim because the defense team lost them two psychologists ago. The family will stand strong in symbol as each juror will remark on their appearance every day of this retrial. That strength will stand in juror’s minds as a reminder of their responsibility balanced between two interests.

Secondly, they will realize that Arias should have completed her testimony. It will be the one thing they will say that could have saved her life. If she had not appeared in the first place, it would have been far less an issue. It will look like she tried to lie to them and they will search for her lies in what little testimony they received.

This jury needs to hold her accountable for her murder of Travis Alexander. She has not given them reason to think otherwise.

Justice looms as her time runs out...

“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)

“Brain Damage: A Juror’s Tale” available on:

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