Anyone that is wondering if the defense team of Jodi Arias is getting paid every time they mention the word “mistrial” or “motion to dismiss” can rest assured that yes, they are. The current costs for the defense team alone in the Jodi Arias trial are hovering over the $2.5 million dollar mark, and counting. Thanks to the good taxpayers of Arizona, the defense team who works out of the public defender’s office for the Maricopa County Superior Courts, can continue collecting their paycheck. But, if their current motion is successful, not for long. What are the chances of that? This won’t be the first motion filed to dismiss the death penalty in the Jodi Arias trial, and if history is any indication, it probably won’t be the last. USA Today reports Nov. 21 that a hearing on the latest motion filed to dismiss all charges put a pause in the Jodi Arias trial Friday as Judge Sherry Stephens heard arguments over alleged pornography files on the personal computer of the victim of this murder, Travis Alexander.
Jodi Arias is on trial for the murder of her lover Travis Alexander in 2008. In 2008, she traveled from Yreka, California, to Mesa, Arizona, in a road trip where she ensured she would not be caught on a surveillance camera once. After she arrived at his home in the early morning hours of June 4, 2008, they had sex and went to bed. In the late afternoon of that same day, shortly after 5 PM, sex play in the shower turned deadly.
On June 9, 2008, Travis Alexander would be found in his home that was splattered with blood. He would be found with over 25 stab wounds, one that included a fatal 5 inch wound to his chest. His windpipe was also severed to the point of near decapitation, and he had a gunshot to the head. Jodi Arias was the only person in the home besides Travis at the time he was killed.
She was convicted of first degree murder for this crime in 2013. The jury at the time was unanimous in that decision, where the jury became deadlocked was whether or not Jodi should serve a life or a death penalty for this crime. A retrial was ordered, but the decisions on the guilt and aggravation phases remained.
Thus, Jodi is now a convicted felon facing a retrial of the sentencing phase only on her conviction. During this retrial of the penalty phase, the defense team has filed numerous motions in their efforts to have the death penalty removed, or to halt the proceedings all together. It’s long been considered the “delaying the inevitable” strategy of the Jodi Arias defense team.
The most recent motion being used to halt proceedings is a motion alleging prosecutorial misconduct regarding alleged pornography files that may or may not have been on the personal computer of the victim in this case, Travis Alexander. We have previously reported on these alleged pornography files, and the opposing viewpoints on those files between the defense and the State. It seems that the computer history of Travis Alexander, 6 years after his murder, is still being widely contested by both sides.
As we previously reported, the State is furious that the computer drive they just received back from the defense was a switched hard drive. On the other hand, the defense is furious over the fact that the hard drive in question is allegedly missing some files. Not just some files. Numbers everywhere from 2500 to over 6 thousand files that are pornographic in nature are allegedly missing from this computer.
The last this debate has seen occurred in a motion filed by the prosecutor. This week defense attorney for Jodi Arias, Arizona Central reports Jennifer Wilmott filed a motion in response to the claims of Juan Martinez. But it was not just any motion. The full motion can be seen in the slideshow and contains the title,
“Motion to dismiss all charges with prejudice and/or in the alternative to dismiss the state’s notice of intent to seek the death penalty due to recently discovered purposeful and egregious prosecutorial misconduct.”
USA Today reports that a hearing was held on Nov. 21 on this motion. This was a hearing without the jury present. Meaning, if the jury is adhering to their admonitions to not read any news or social media then, the current jury has presumably no idea that any of these arguments are even happening. The jury’s last experience on this case was when they heard testimony in court on Thursday from defense witness sex expert Dr. Fonseca.
All parties were in court on Friday Nov. 21 however, minus the jury, to hear the latest arguments on the most recent motion to dismiss the death penalty, and all charges. Jennifer Wilmott’s motion to dismiss all charges argues that the fifth, sixth, eighth, and fourteenth amendments of Jodi’s constitutional rights have been violated. As a result, she claims,
“The State’s misconduct is of the nature that dismissal of all charges is warranted.”
Jennifer Wilmott left no stone unturned in her motion. She cites misconduct on the part of the prosecution, again, and believes the facts show that all charges against Jodi Arias should be dropped.
“While the actions denoted above document only a portion of the misconduct that the State has engaged in during the pendency of this case, the facts outlined above….are certainly the most repugnant to any sense of justice found in the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution….and for the reasons mentioned above, the charges against Ms. Arias should be dismissed with prejudice. In the alternative…any sense of justice that comports with the death penalty jurisprudence detailed above would require that this Court dismiss the ‘State’s Notice of Intent to Seek the Death Penalty’ with prejudice.”
In her motion she writes that the personal computer of Travis Alexander was originally examined in 2008. Detective Melendez with the Mesa Police previously testified on Oct. 21 that he examined this computer using a software program called Encase, and that this was the only software he used and was compliant with Mesa Police Department protocol.
Department protocol also requires the use of a technological device known as a “write blocker”. This is a program put on the computer to ensure that nothing on the computer can be altered during the course of a forensic examination. This protocol is in place for obvious reasons.
The most obvious reason being the reason we are discussing at this very moment. The “write blocker” is intended to avoid any lawsuits and motions such as this. Detective Melendez testified in the retrial of the sentencing phase that he finished his investigation on the computer in November of 2008 when he transferred to the Computer Forensics division of the Mesa Police.
In addition to the hard drive being analyzed by Melendez, a Lonnie Dworkin from Compufor analyzed the hard drive and according to Jennifer Wilmott. In her motion, on the analysis of Lonnie Dworkin, the defense writes,
“His analysis did not uncover the existence of any pornography on this computer.”
Wilmott continues on to acknowledge that Jodi previously testified that on January 21, 2008, that she allegedly caught Travis masturbating to a picture of a young boy. Wilmott concurs that Jodi does not have any evidence of this allegation. Wilmott also contends however that on this incident,
“The State claimed that Ms. Arias was lying about this incident, that she was making this incident up to disparage Mr. Alexander and that Ms. Arias was a ‘liar’ whose testimony should not be believed.”
Wilmott also contends that, “prior to gaining a conviction on the charge of first degree murder”, the State knew that Travis’s computer did in fact contain pornography and also had evidence that suggested Travis was sexually interested in kids. Wilmott also contends,
“The evidence produced at the evidentiary hearing will demonstrate it is clear that the State knew this evidence existed because, on June 19, 2009, before Ms. Arias examined Mr. Alexander’s computer, the State deleted this evidence.”
Wilmott goes on to make some very serious allegations, but does not provide proof. Instead she says the generic lawyer line, “the evidence will show.” She is very specific in her allegations. She says,
“Recent Forensic Analysis has shown that between the times of 13:56:19 and 16:51:34 on June 19, 2009, that thousands of files were deleted from Mr. Alexander’s computer. To clarify further, evidence produced…will demonstrate that this was not some sort of inadvertent forensic error, but instead that someone went into the computer without a ‘write blocker’ and sought to alter its content, and alter they did, with such a level of success that the State’s deceit was not uncovered for several years.”
Wilmott alleges that whoever had the computer at this time is responsible for that, and says that it must have been the State. Wilmott then provides a list of dates that these alleged porn files were allegedly accessed. She also provides the actual porn sites in the motion, the full motion with that list of sites can be seen in the slideshow.
The dates the porn was accessed begin on May 28, 2008. Several sites were allegedly accessed on that day, several on May 31, 2008, and also several sites were accessed on June 10, 2008. Travis Alexander died on June 4, so who was looking at his computer if those files were really on it?
There is a wide body of speculation circulating that Jodi Arias could have possibly planted the porn files on Travis’s computer during one of her moments in his home. Wilmott has a quippy response for that.
“The date and time they were viewed negates any valid argument that Ms. Arias put these files on Mr. Alexander’s computer.”
Wilmott then presents a list of XXX rated porn sites, and attempts to allege that Travis likes child porn. But even she can not definitively assert that he does, as she also says these are pages that “likely” contain child pornography. But the word “likely” isn’t a word that erases reasonable doubt, is it?
Neither the defense nor the State disputes the presence of porn files. How they got there, and how they have since disappeared, is the subject of this entire debate. In fact, whether or not porn files exist is not the actual relevance of this motion. The relevance of this motion rests on the fact that the defense is making very serious allegations of prosecutorial misconduct and mishandling of evidence.
The “what” of what the porn files are in other words, doesn’t matter. If the porn files in question were a basket of apples for example, what is happening here is an argument over what happened to the “basket of apples.” The defense is saying Jodi has testified to things that suggest this “basket of apples” could exist.
The State has said, we can’t find the basket of apples and so Jodi must be lying. The defense is now then saying, “we can prove the basket of apples existed once, but the fact that they don’t exist anymore really bothers us and we think you had something to do with that. Which is wrong.”
If the defense is right, and they can prove it, they are correct. Losing a “basket of apples” or, in this case, thousands of porn files, and using that to ruin Jodi’s credibility is a really bad thing that could amount to prosecutorial misconduct. Does it change the fact that Jodi butchered Travis Alexander or that she is not guilty of all charges against her? No.
There are a number of theories presented by both sides on what happened to this missing basket of apples. Juan Martinez has theorized that an anti-virus program was installed on Travis’s computer and would not have allowed pornography to download in the first place. He claims that viruses that were attained were the cause of the alleged pornography.
This is, oddly enough, something that Wilmott does not disagree with. She said,
“There were thousands of pornography site hits found on Mr. Alexander’s computer. Some were caused by viruses and some were accessed prior to viruses being downloaded onto his computer. The type of viruses found on Mr. Alexander’s computer are severe, and typically associated with the computer user visiting pornography sites.”
Who accessed those files? Who deleted them? How did the viruses get there? Even in this motion Jennifer Wilmott makes it clear that the answers to those questions are not clear. One thing she does concede,
“It cannot be shown that any member of the Maricopa County Attorney’s office was involved in these misdeeds.”
Wilmott then contends that based on all that she has said thus far, the first degree murder conviction should be overturned. She says,
“Dismissal of a conviction is warranted when the misconduct is of the nature that it so infected the trial with unfairness as to make the resulting conviction a denial of due process.”
She also cites the Brady Rule, suggesting that Juan Martinez is guilty of a Brady violation. Wilmott feels that destruction of the evidence in question would “constitute clear Constitutional error as its destruction deprived Ms. Arias of a fair trial.” According to Cornell Law, violations of the Brady Rule could for some cases actually lead to dismissal, however, the defense is on the burden to prove these serious allegations.
The Brady Rule is a legal term coined from the 1963 case Brady V. Maryland 373 U.S. 83 and requires the prosecutor in all cases to disclose to the defense material evidence that is in the State’s possession. Evidence that is considered under the Brady Rule is evidence that is considered to be “favorable to the accused”, or is evidence that could negate an individual’s guilt.
Evidence under the Brady Rule typically is used to reduce an individual’s sentence, or to help them establish credibility. If the State is found to be guilty of Brady violations, as Monica Lindstrom tweeted yesterday, this will mean consequences that stem from supression of the alleged evidence, to dismissal of all charges. It is not however up to the State to prove that they are innocent of these violations.
The burden is on the defense to show that the Brady evidence is not only material to this case. But that is not all they must prove. They must also prove that the trial outcome would have been completely different had the State disclosed this material evidence. In this case, and especially with this “basket of apples” of thousands of porn files, there appears to be more reasonable doubt than evidence and the defense seems to still have an uphill battle on this one.
The defense has already conceded that when Jennifer wrote, “It cannot be shown that any member of the Maricopa County Attorney’s office was involved in these misdeeds.” So it would seem then that proving a Brady violation would be difficult for the defense. But that does not mean they did not work vigorously in yesterday’s hearing to establish a Brady violation. Jennifer Wilmott concluded her motion by saying,
“While the actions denoted above document only a portion of the misconduct that the State has engaged in during the pendency of this case, the facts outlined above….are certainly the most repugnant to any sense of justice found in the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution….and for the reasons mentioned above, the charges against Ms. Arias should be dismissed with prejudice.
In the alternative…any sense of justice that comports with the death penalty jurisprudence detailed above would require that this Court dismiss the ‘State’s Notice of Intent to Seek the Death Penalty with prejudice.”
We followed William Pitts from NBC 12 who tweeted live from the courtroom yesterday to find out what really went on in yesterday’s hearing. The hearing began with former defense counsel on the stand Maria Schaffer, who was one of the first individuals from the defense to have a look at the computer after it was seized from Travis Alexander. Schaffer attended a meeting at the Mesa Police Department on June 19 to do so.
This testimony ultimately turned into what is becoming a typical State versus defense argument portrayed by “he said she said.” No agreements were made, the State and the witness could not even agree on who turned the computer on. This is important because turning the computer on, on this very day, could have been the very act that accidentally or allegedly deleted thousands of alleged porn files.
Schaffer said Detective Flores turned it on. Juan Martinez had previously asserted that the defense turned it on, against the advice of the State. In court yesterday however Schaffer asserted she never touched the computer.
Juan Martinez then gave Schaffer a list of evidence she previously requested on the case. He reminded her that it was her request to look at the evidence, and said that Schaffer turned on the computer because she wanted to see “how big the files were” so that she could appropriately budget time for the defense expert she was seeking funding for. Schaffer said that may have been the case, however continued to testify that Juan Martinez was the one that turned it on.
NBC 12 suggested that Maria Schaffer was getting flustered under this cross-examination, but would not concede that she had ever been left alone with the computer. She was able to concede however that if she had been told turning on the computer would destroy evidence, that the computer would never have been turned on. This sounds a little bit like a concession that she may have in fact been the one to power the machine up on that day. As William Pitts tweeted for NBC 12,
“This has real ramifications….if someone screwed up here, it’s a problem. If the allegations are baseless, it’s a problem.”
The next witness up was a Bryan Neumeister who is a computer expert that “specializes in undeleting things.” He began his testimony by saying that anyone that knew anything about computers would know not to turn the machine on, to remove the drive first and use a write blocker to investigate the computer. He was questioned on activities on the computer that occurred on June 10, 2008.
This date is important because porn was allegedly accessed on this date,which was several days after Travis Alexander died. Nuemeister testified that on this date, the laptop downloaded several things such as iTunes and also some updates. This means that not only was the computer powered up at the time, but also online as William Pitts reports.
Neumeister testified that when these programs were downloaded, some of the hard drive was allegedly overwritten, thus deleting some of these alleged porn files. Neumeister also testified that one year later, June 19, 2009, the computer was turned on again and attempted to install the same updates that it had installed on year prior.
This would have had to have been done manually, by an actual human being. The expert testified that iTunes was also installed, which needs a human user to launch the process. Neumeister also testified that he learned from previous testimony that there were no viruses on the laptop. Thus he cloned the laptop 3 times in order to ensure it was cloned properly.
This is interesting, because most witnesses are not supposed to know what other testimony has occurred in a case as it could effect their testimony. So what testimony is Neumeister referring to here? Neumeister conceded that several of the porn files allegedly found were caused by trojans and viruses. Others however he said, were manually typed in.
Overall Neumeister testified that he found 19 viruses, a registry cleaner, and spyware removal programs on the computer of Travis Alexander. He referred to the laptop as being “loaded” with viruses. He also claimed that the history of porn on the computer of Travis Alexander dates back to 2007, and also included several visits to escort services.
Shown as evidence of this was a log that illustrated what porn was accessed when. One time stamp showed the date of June 1, 2008, and the defense alleges this was not an access by a trojan or virus, but one that was manually typed in. He also claimed that as many as 70 thousand files were “scrubbed out by a program that was not installed on Travis Alexander’s laptop” according to William Pitts of NBC 12.
This led the witness to claim that proper forensic protocols weren’t followed, and that the evidence must have been tampered with by the mere fact that the evidence appeared changed. The expert claimed to have as many as 90 pages of porn links visited by a human being, including links that read, “Hot girl giving a public blow@#%.” When it came to 90 pages of files, the expert says he stopped looking, saying, “What’s the point, there were so many.”
The expert also testified that there were over 6000 hits on the keyword “teen” on the laptop of Travis Alexander. This concluded his direct examination by Kirk Nurmi. Juan Martinez was up for cross examination next, and, as always, this is where things got testy.
Juan went right to the beginning to begin asking about Lonnie Dworkin. This expert had testified that he had not found any of these files on the computer. Expert Neumeister explained that away by saying the drive that Dworkin was given was “bad.” He also said about the files,
“It’s impossible to miss it! There is so much data there Juan!”
So which is it? Was Dworkin given a bad drive? Or was he negligent in his duties and overlooked “so much data” as is being suggested?
An argument over cell phones erupted. Cell phones were turned over to the police during this electronics seizure. Some of them did not have SIM cards, and Martinez asked Neumeister about that. He said,
“If the cells didn’t have SIM cards then you’re saying the defendant had some shenanigans with them, right?”
In this line of questioning, Martinez was working to get the witness to admit to police misconduct, however Neumeister would not admit to those serious allegations, despite what the defense spent all morning implying. Instead he said that whoever imaged the drive, did a bad job at it, and “shouldn’t be working in forensics.” Additionally, Neumeister kept going back to the porn,
“You’re trying to skip over there 160 thousand hits of porn on that computer and you guys said there was none!”
Things began to get heated when Martinez then alleged that maybe Neumeister had something to do with the missing files. He suggested that Neumeister broke the machine, to which Neumeister replied,
“That’s just slimy. That’s just slimy.”
This was when court broke for lunch. After the lunch there was not much to the hearing, but it did look like there may have been some admonitions in play. All lawyers went back to chambers of Judge Sherry Stephens, after which a conference at the bench was held. William Pitts noted, “Stephens looks angry now.”
In a calmer and more collected line of questioning, Juan Martinez then asked for more copies of the alleged hard drive in question. Judge Sherry Stephens then adjourned the hearing until December 4. The jury at this point is not to know that any of this even happened. Testimony in the retrial of the penalty phase will resume Monday as if that is the case.
Judge Sherry Stephens will likely rule on this on December 4. There are a number of possible things that will happen. If she believes the defense, she may find prosecutorial misconduct or a violation of discovery of evidence. Monica Lindstrom tweeted the sanctions she would then have available would range from dismissal of the case and charges to a suppression of this evidence. She may also over-rule the motion all together.
What do you think about this turn of events? Do you think the State should drop the motion to dismiss the death penalty because of this? Or do you think this has zero relevance at all on what Jodi’s sentence should be? Will Jodi Arias be home by Christmas? Watch the video here to see what 3 former jurors think about the sentence that Jodi should get.