DAY 23
“RAINDROP IN A HURRICANE”
“Justice is whatever is left over after the filtration of truth in a Court of Law.”
This quote appears in my first book, “Brain Damage: A Juror’s Tale” (available on Amazon.com). It captures my sentiments after being a Juror for almost six months in the matter of the first degree premeditated murder of Dale Harrell by Marissa DeVault. I have noted many times that there are amazing similarities to the Arias death penalty retrial and the cruel and heinous killing of Travis Alexander. The biggest similarity in both Juries is that both Juries know that there is an incredible amount of information that they are not being told. They can feel it in every sidebar and know it with every argument that exposes statements that are stricken from the record.
The Jury does not know why the media and public was not present the day and a half that Arias testified last October. They do not know that her transcripts were finally released to the public this week. They are unaware that at the completion of the testimony of John Smith, the data scientist, that Judge Stevens would render a decision that the death penalty may or may not be taken off the table.
This Jury can feel the tension between the attorneys handling both sides of the case. The Jury does not know that the purpose of these arguments are more for the Judge than for them.
Kirk Nurmi began with John Smith on the stand concluding the incomplete testimony of a couple of days prior. Kirk Nurmi wore a black suit with white shirt accented by a blue tie. He had a bar graph posted on the projection screens for the Jury and court to see. He was pursuing a block of time on this graph that signified when the defense team had been looking at this laptop. The date was June 19, 2009.
The web activity that could be seen was for a period of two hours in the afternoon. This was the same day that Juan Martinez and Esteban Flores were present. John Smith said that a USB port was used and twelve files were accessed in the afternoon. These were noted on the graphs as hours number fifteen and sixteen.
“I want to discover a little more on what happened with this computer on June 19, 2009,” he said to John Smith who was on the stand. Mr. Nurmi pointed toward another set of blocked colors on the graph. “In this regard, then, with this file, can you tell the Court what happened at 11:00 PM?”
John Smith was wearing a light purple shirt complimented with a purple tie and a black suit. His trademark beard, like that of a Red Sox ball player, stood out. He was calm on the stand throughout all of his testimony. However, the same issues stood with him as they did before. He was a self-proclaimed data scientist with no formal education. This is a big problem with the Jury and would be the one issue that prohibits them from taking him seriously. Just the same, he held his ground speaking calmly and knowledgeably on his subject.
“We ran a scan on this computer, a Compaq Presario and we could see the activity in the afternoon around three o’clock. If you were to look after that, there is no activity on the computer for about six hours and then we see activity at eleven o-clock at night,” John Smith stated.
Kirk Nurmi paced in front of his witness, his head leaning forward. “What does this activity mean to you as a data scientist?”
“I can see that images were Googled. There is an image we found called, Siamese Twins. It’s doubtful that the computer generated this search on its own,” he said.
“Can you tell the, or let me back up, if I can ask it this way,” Kirk Nurmi began. One could go have lunch and come back before he finished half of a question. “Can you tell us specifically what the path was of this activity at eleven o’clock at night?”
“It is apparent from this report that through a default page, someone accessed ‘my computer’ and then accessed a file called Siamese Twins. It shows over twenty results. They are mostly images from folders that contain pictures and documents. These files are about a minute apart,” John Smith explained.
“I see,” Kirk Nurmi said as if he was contemplating the answer. “These files were accessed, loaded into the browser and someone searched within the computer?”
“It appears so,” John Smith admitted.
“I’m finished with this witness,” Kirk Nurmi said as he gathered his papers from the podium that he did not use.
“Very good,” Judge Stevens said. She looked toward the witness and then toward the Jury. “Does the Jury have any questions for this witness before we dismiss him?” she asked.
I was proud of the Jury when they jumped to life submitting a basket full of questions. Arizona is one of few states that allow questions to be asked by the Jury. The questions can only be submitted at the conclusion of testimony of a witness. These questions are asked anonymously and done via an official Jury Question form featuring the seal of the State of Arizona. They are a great tool for Justice and, as a former Juror, I can say that critical information was pulled from witnesses that we not otherwise would have been a party to. We used many of those answers during our three phases of deliberation.
Randy strutted over to the front of the Jury box and removed the handful of papers. He handed them to Judge Stevens and the attorneys were called forward to approve the questions. There are times that questions are submitted but not approved by the Court to be answered. All three parties confer on each question. Finally, the attorneys went back to their seats while Judge Stevens turned toward the Jury and looked at John Smith while she read each question word for word. Being that these questions were handwritten, some questions were harder for her to decipher making her struggle to read the words at times.
“In 2009, you said the computer files showed modifications and a search. What was searched and who did it?” she asked John Smith.
He looked toward the Judge. “I do not think they were done via the internet, I know that. There were local file searches within the computer. I do not know who searched the computer,” he answered.
Judge Stevens separated that question sheet and moved to the next question. “Were all computer modified files modified by cleaners or were they done physically by someone?”
John Smith appeared to think before he spoke. “There is a “Spy Block” cleaning program which can modify files. For the most part, it looks like files were cleaned directly.”
“Can files be specifically cleaned?” Judge Stevens asked, holding a new question in front of her.
“Yes.”
“Can cleaning programs work or change files when computer is off?”
“Absolutely not,” John Smith answered confidently.
“In reference to start up lists, are they automatically modified?” she asked him.
“It is really operating system dependent,” he answered.
Judge Stevens shuffled her papers to the next question. She peered over her glasses at John Smith occasionally as she read the question to him. “Please explain over written files and how to get them back.”
“It is harder to get files back when they have been cleaned by a program. If the files are deleted, it is a lot easier to get them back because they are not really deleted. The file just moves to unallocated space on a computer,” he explained.
“On a search bar, how do you know if someone searched an actual topic?” the Judge asked as she read the Juror question.
“There is a registry history. In that registry, terms are searched by a human and they are not automated searches.”
“Do things attach to other files from spam and viruses?” the question asked.
“Yes,” he answered. “We call it ‘hooking’ and they can modify files. It is usually for advertising reasons.”
“Is there evidence of a virus that had to be removed?”
“Yes, there were a variety of them including “Z-Lob” and a handful of others.”
“Can malware hijack a system to get pornography?”
“Yes,” he answered without explanation.
The Judge stacked the questions and put them somewhere on her desk and looked toward the defense table. Arias was chatting quietly with Jennifer Willmott in her ear. She was wearing a tan sweater top with loose fitting black pants. Kirk Nurmi gathered his things and walked up to question his witness who was waiting patiently on the stand.
Kirk Nurmi’s questions were directed at the computer. He was wanted attention toward June 1, 2008, the day he alleged Travis Alexander was searching for pornography. “So, if we look at the browser history, we can assume that a virus did not use the browser?” he asked.
“The browser is separate from a virus,” John Smith answered.
Kirk Nurmi stood in his Sherlock Holmes pose acting as if he was framing a question very carefully. “So,” he said with a pause, “we can see a list of sites in the browser. Let’s take “Babies Pornography Magazine”. It’s in the browser. Did a virus look for that?”
“No, definitely not,” John Smith said. “These were searched for by a human and could not have come from a virus even if the virus had hijacked pornography.”
“What about these cleaner programs?” Nurmi asked. “Could they put this in the browser?”
“Spy Block or any program like that cannot put things or items in a browser. These search terms were undoubtedly from human interaction,” John Smith stated.
Kirk Nurmi nodded that he was finished and went back to the defense table.
Juan Martinez stood up and walked toward John Smith while the court and Jury waited silently. One never knew what was going to come out of his mouth and that elevated the tension. Juan stopped about five feet from the witness.
He looked toward his feet and then at John Smith. “One of the things you referred to,” Juan started, “is that you are a ‘Data Scientist’. You used a tool in your research called “Autopsy”, did you not?”
“Objection!” Kirk Nurmi jumped up yelling.
“Please approach,” Judge Stevens said.
The attorneys had their thousandth sidebar while the Court and Jury waited with white noise over our heads. Moments later, the attorneys returned to their seats while Juan Martinez stopped at the center of the room in front of John Smith and began a tirade of rapid fire questions. He would ask a question and then begin pacing like a cage lion.
“You did use a program called “Autopsy”, didn’t you?”
“Yes,” John Smith answered calmly. One got the feeling that he did not know what the hustle and bustle was about.
“It’s a free program for everyone?”
“Yes.”
“It’s never been verified, has it?” Juan accused.
“Not really,” he answered. “I have not had any issues with it.”
“Don’t police departments normally use a program called “EM Case”?
“I think so,” John Smith answered.
“Let’s talk about the term UTC,” Juan said quickly changing subjects. “What is UTC on a computer? “
“It stands for Universal Time Code,” the witness answered.
“Yes, it does,” Juan agreed. “What is seven minus twenty two?”
“Uh,” John Smith said, stalling. “It’s, um, fifteen.”
“Correct. It is fifteen hundred or three o’clock. Right?”
“Yes.”
“The two intrusions in green on your “Autopsy” Graph are really the same times, aren’t they?”
John Smith looked a little confused as he thought about the two separate times that the computer showed searches the day the defense team looked at the computer with the prosecution in the room in June of 2009. “I don’t think so,” he said, finally.
Juan took a couple steps toward the prosecution table away from the witness. He turned toward the witness and crossed his arms over his chest. “Where did you go to school?”
“San Jose State, Sir,” John answered.
“Did you graduate from San Jose State?” Juan Martinez asked.
“No,” he answered.
“Did you graduate from anywhere?”
“Uh, no,” he answered.
“Do you have any degree, Sir?” Juan asked raising his voice.
“No,” he answered quietly.
“All your information was collected from “Autopsy”?
“Pretty much,” he answered.
“Okay,” Juan said. “Did you use “EM Case”, what professional computer forensics normally use?”
“No.”
“How about “PTK” which another computer forensics tool recognized by police departments? Did you obtain results from that as data scientist?”
“No,” he answered.
“All the results you obtained came from one tool called “Autopsy”, right?” Juan Martinez reiterated.
“Yes, Sir.”
“You used that program and then gave us the results. Am I right?”
“Yes, Sir,” he answered.
Kirk Nurmi got up and slowed everything down by questioning his now defunct witness. It was like bringing someone back from the dead a week after they were gone. He was not going to be resurrected despite Kirk Nurmi trying to show that big businesses hired the services of John Smith. It was mentioned that the Department of Homeland Security trusted John Smith to do work for them.
Kirk Nurmi emphasized in questioning that these corporations had no concern that he did not graduate from college proven by their continuation of using John’s services. He further tried to show that no one had ever complained about using this unrecognized tool, “Autopsy”.
I know as speaking from experience as a Juror that Juan Martinez caused significant damage. His questioning was pointed, direct and clear and concise in its intent. I further see that the plethora of questions, more questions than this Jury has asked any witness, are an indication that not only is this Jury engaged, they are also searching for truth in a muddled array of inconsequential details. They are struggling to see the importance of anything having to do with the computer especially with the array of viruses found on it.
We were dismissed for lunch and I went to Crazy Jims to have a salad. It’s across the street and a block down from the Court house. Although I like their pizza by the slice, I thought a salad a little more healthy and I didn’t want to risk getting sleepy in Court. Our Jury used to go to Crazy Jims a lot because few Court personnel could be found there.
I was making my way back to the Court house and I ran into Judge Steinle and Donna, my old Judge and his assistant. There is nothing like an ex-Juror being able to talk to the seated Judge on a trial they shared. The respect endowed each other is mutual and lifelong. It is completely refreshing to be able to talk to a person that you had been prohibited to speak with for six months.
There were a hundred questions I probably wanted to ask him but only thought of a few. At one point, when he asked me of the Arias Trial and how it was proceeding, I responded that I felt it was painstakingly slow in comparison to the speed of his death penalty trial. He laughed in understanding and then quipped, “I don’t do sidebars.”
I can still picture him when attorneys were presenting arguments. I cannot tell you how many times Judge Steinle III would unabashedly tell the attorneys, no matter which side, “Save it for appeal, gentlemen! Let’s move along. We have a jury empaneled.”
I think Dale Harrell, the victim in our crime, got a good shake when he got Judge Steinle III in charge of the Court.
We returned from lunch and welcomed Detective Flores back to the stand as presented by the defense. Jennifer Willmott handled the questioning wearing a blue business skirt suit with black high heeled shoes and black stockings. Her hair, as always, in perfect order resting on her shoulders.
The discussion went toward June 1, 2008 and who had who had access to the computer of Travis Alexander. She was able to establish that Travis Alexander’s roommates, Enrique Cortez and Zack Billings owned their own computers and would not have been on the computer in the office of Travis Alexander.
Jennifer Willmott presented a tape of Zack Billings and tried to get Detective Flores to say he recognized the voice of Zack Billings recorded a significant time earlier. She was playing the tape and it was heard that Zack Billings had never heard Travis Alexander say he was a virgin nor did he ever hear Travis Alexander say that he had lost his “Temple Recommend”.
I do not think she wanted the Jury to hear those things as she was quick to shut the interview off before the Jury heard more. I know the Jury saw this as inconsistent to what the defense team had presented far earlier in the retrial. Juries love details because that is where the truth often hides. This truth was itching to be exposed.
The next hour was a bickering squabble over details that Detective Flores would not give in to. It sounded like supposition and speculation which police investigations are typically not supposed to be about. There was definitely tension between Willmott and Flores. Much to the relief of everyone in the room, she completed her work with the detective.
I glanced at the Jury as Juan Martinez made his way to the center of his playing field, that zone between the Jury and in front of detective Flores. He paused before he began and I could see the Jury readying themselves for taking notes, some leaning forward. They knew by now that he moved fast when he was in his comfort zone. They would also be used to the fact that he pulled no punches and played no pleasantries with any witness even if was his own.
“Do you recognize this?” he asked Flores as he walked toward him with a piece of paper in his hand. Along the way, he said “May I approach?”
“You may,” Judge Stevens responded. She watched Juan and Flores intently as she did with all testimony.
“Will you look at Exhibit number 810. Do you recognize this?” he asked as he handed Flores the paper.
Juan looked at his feet and rocked back imperceptibly. He waited patiently for Flores to give it back and he agreed he recognized it. Juan then marched over to the projection screen and displayed the paper for the Jury to see.
“What is this, Detective Flores?” he asked as he turned to face the witness.
“It is a Chain of Custody receipt,” Flores answered.
“It’s a voucher from the Mesa Police Department dated June 19, 2009. Is that right?” Juan asked.
“It is,” Flores answered.
“Would I be correct in saying that this is a log of any movements of the Compaq Presario? It goes in and out of computer forensics evidence room, right?”
“Yes,” Detective Flores answered while his hands rested comfortably in his lap.
“Can anybody come in off the street and look at evidence?”
“No, they can’t.”
“Can anybody access computer forensic evidence without a Chain of Custody form being filled out?”
“No.”
“You always give notice if you or anyone on the case needs to look at it?”
“Correct.”
“This form says you returned it around five o’clock. Is there any reason to believe that’s not true?”
“The personnel who check it in and out of the property room fill out the form and are in charge of making sure items are logged. This has a bar scan on it which shows it was returned at 16:51,” Flores explained.
“You check it out over a counter?”
“Yes.”
“Are they open twenty four hours?” Juan Martinez asked.
“No. I believe they stop around nine in the evening.”
“Is anyone there to check out computer evidence at eleven o’clock at night?”
“No, Sir,” Flores answered.
“Do you know of any computer that turns on and off on its own?” Juan asked.
There were nine Jurors busily taking notes.
“No.”
“You are familiar with computer operating systems as an investigator?”
“Yes,” Flores answered dutifully.
Juan moved in for the attack. “Doesn’t a computer have to be on for an operating system to work?”
“Yes.”
Juan Martinez opened his palm and looked at it as if he was holding an invisible computer. “So, if the operating system is not on, can it access files within the browser?”
“No,” Flores answered. “It would be like running a car without a key.”
Juan then brought the questioning back to June 1, 2008, days before Travis Alexander was murdered. The laptop was in his office that he allowed anyone in the household to access. He did not believe in making boundaries in his own home. He was known for leaving his doors unlocked.
“The computer was in his office, wasn’t it?” Juan asked Flores.
“Yes.”
“The defendant would have had access to it?”
“Yes,” Flores responded.
“Travis Alexander never kept the door locked, did he?”
“Not that I know of,” Flores answered.
“His house was available to everyone because he liked it that way, didn’t he?”
“There was no indication his office was locked, was there?” Juan asked, stopping.
“No.”
“The defendant had access to it as well, didn’t she?” Juan reiterated.
“Yes,” Flores said.
Juan Martinez finished with his witness. For a moment, he had managed to bring us all, including the Jury, into Travis Alexander’s life. It may only have been for a moment but he was suddenly human again. It was not about computers and pornography or whether they went on and off in the night. It was about a man who was caring and opened his door to all without fear. It was as if his empty office stood in the courtroom and an innocuous computer on a back desk brought him to life, if only for a moment.
Jennifer Willmott finished with Detective Flores but it sounded weak and without weight. She tried to imply that logs might have been changed because of his superior position within the Mesa Police Department. There was a typographical error on the form and maybe he should have made a supplement to the document to rectify this error.
Detective Flores felt it was too minor to worry about in spite of Willmott’s vehemence that something should have been done.
She grasped the edges of the podium. “There’s another issue I would like to discuss. You know that Jodi Arias was nowhere near Mesa on June 1, 2008, don’t you?” she asked accusingly.
“Yes,” Flores answered.
“She was not in Mesa, Arizona. She was in Yreka, California. Right?”
“Yes,” Detective Flores answered.
The Jury would look into this tidbit when they got in the Jury room once deliberations started. I don’t think they believed Jennifer Willmott. I don’t think they believe Jodi Arias. I think they will want to know who was really on the computer on June 1, 2008.
The Jury’s day went south when Judge Stevens informed them that they would need to advise her of any conflicts for February as this trial was going a little longer than expected. The Jury already knew that since they had told their employers, husbands, wives, children and schools they would be complete by December 18, 2014.
The Jury was dismissed until Tuesday of next week and Judge Stevens ruled on the motion to remove the death penalty from the table because of the defense claims of malfeasance by the prosecution, sometimes worded as prosecutorial misconduct.
The Jury is probably irritated but not surprised that there is another month expected trial. They are certainly confused about the computer and why it seemed so important when they have to live with the face of Travis Alexander in his final moments every moment of their lives until they reach a decision in the matter. The computer and the issues arisen because of it hardly seems the value of a single raindrop in a hurricane named Travis.
In the end, Judge Stevens said that the death penalty shall remain on the table.
I wonder if Jodi Arias shed emotionless tears that night on her cot, alone in her cell, as she realized the Grim Reaper may soon be standing at her door….
“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)
The 13th Juror @The13thJurorMD (Twitter)
