Ms. Arias, through undersigned counsel, pursuant to the rights due her via the Fifth, Eighth and Fourteenth Amendments of the United States Constitution, as well as Art. II, § 4 and Art. III of the Arizona Constitution, hereby requests that this Court dismiss the “State’s Notice of Intent to Seek the Death Penalty” that the State filed against her on October 31, 2008. Ms. Arias makes this motion based on the fact that the State’s choice to engage in a persistent pattern of misconduct over the pendency of this case has left Ms. Arias in a position where she cannot receive the full benefit of the rights
( Converted to text from this scan of the original motion )
she is due pursuant to the aforementioned and those cited in the attached Memorandum of Points and Authorities which is incorporated herein by reference wherein she will expound upon her position. When considering this motion. Ms. Arias asks this court to also consider the facts made available during ex-parte and/or sealed proceedings. Finally, given the ever changing nature of the case and the evolving scope of the State’s misconduct Ms. Arias reserves the right to supplement this motion as circumstances currently unforeseen dictate.
MEMORANDUM OF POINTS AND AUTHORITIES
I. SUMMARY OF ARGUMENT
If a defendant is deprived of the chance to present relevant mitigating evidence any sentence of death is inconsistent with the dictates of the Eighth and Fourteenth Amendments of the United States Constitution, thus such a sentence cannot lawfully be imposed. Skipper v. South Carolina 476 U.S. l (1986). The question raised by this motion then becomes whether or not the State’s misconduct throughout the course of these proceedings has sufficiently diminished and/or deprived Ms. Arias’ ability to present the mitigating factors she has advanced in other pleadings to her jury and/or if the State’s misconduct has impaired Ms. Arias’ ability to meet the burden of proving the existence of these factors by a preponderance of the evidence as she is tasked to do pursuant to pursuant to the dictates of A.R.S. 13-751 (C)
Bearing in mind that the duty of a prosecutor “is not that shall win a case, but that justice is done.” In Re Peasley 208 Ariz. 27, 90 P.3d 964 (2004) citing Pool v. Superior
Court I39 Ariz. 98, Io3. 677 P.2d 26l._ 266 (1984). In this motion Ms. Arias takes the position that actions taken by the State, as described herein, can only be characterized as misconduct designed to bring about victory at all costs. Consistent with this pattern of misconduct is the State’s conduct that directly precludes or interferes with a defendant’s right to present mitigating evidence. In fact, the State’s misconduct, taken as a whole, has created an environment from which Ms. Arias cannot receive a fair trial during her sentencing phase retrial. This is so because the State’s misconduct effectively precludes the jury from considering mitigating evidence. Thus. the State has acted in defiance of well-established death penalty jurisprudence that dictates that a sentencer in a capital case must consider in mitigation anything in the life of the defendant that might mitigate against a sentence of death. Smith v. Texas, 543 US. 37. 43-45 (2004); Tennard v. Dretke, 542 US. 27.74, 285-86 (2004); see also US. Const.. Amends Vlll & XIV; Ariz. Const., Art. 2, § 15.
Of further note is that preclusion of mitigation evidence constitutes a violation of the Due Process Clause of the United States Constitution. Green v. Georgia, 442 U.S. 95, 97 (1979): U.S. Const., Amend. XIV; see also Ariz. Const.. Art. 2, § 4.
Given this state of affairs. Ms. Arias takes the position that the State cannot lawfully proceed to seek to impose the death penalty upon Ms. Arias and because of this legal reality this court should dismiss the “States Notice of intent to Seek the Death Penalty” that the State filed against her on October 3 1, 2008.
II. RELEVANT FACTS
In support of her claim that life is the appropriate penalty Ms. Arias, in other pleadings listed the following mitigating factors;
1. Ms. Arias has no prior criminal history.
2. Ms. Arias was just 27 years old when she committed her offense.
3. Ms. Arias is remorseful for her conduct.
4. Ms. Arias suffered both physical and emotional abuse as a child.
5. Ms. Arias suffered both physical and emotional abuse during her relationship with Mr. Alexander.
6. The abusive nature of the relationship caused Ms. Arias to suffer extreme emotional stress at the time of the incident.
7. Ms. Arias has been diagnosed with Post-Traumatic Stress Disorder.
8. Ms. Arias has been diagnosed with Borderline Personality Disorder.
9. Ms. Arias’ psychological makeup impaired her ability to cope with the tumultuous relationship she had with Mr. Alexander.
Pursuant to the dictates of A.R.S. 13-75l (C). Ms. Arias must prove that one or all of these mitigating factors exist by a preponderance of the evidence. Since this court denied Ms. Arias’ request that the trial be moved outside of Maricopa County, as it now stands, she must provide this proof to a jury comprised entirely of residents of Maricopa County.
A. FACTS RELATED TO THE STATES FAILURE TO DlSCLOSE EXCULPATORY EVIDENCE AND THE STATES ASSERTION THAT THE EVIDENCE DID NOT EXIST
On January 12, 2010, a hearing was held. before Judge Sally Duncan on Ms. Arias’ Renewed Request For Discovery Relating To Any And All Forensic Examinations Conducted Upon Any And All Electronic Media. At that hearing Detective Melendez of the Mesa Police Department testified that he went through much of Mr. Alexander’s electronic communication.
Despite the evidence extracted from the State at this hearing, 6 months later Ms. Arias still did not have the requested discovery. So on June 18, 2010, similar issues were discussed at it related to Ms. Arias’ Motion To Dismiss Charges Or In The Alternative, Motion To Dismiss Death Due To Brady Violation. During this hearing Detective Flores, the State’s lead detective, testified that Mr. Alexander’s text messages sent or received before June of 2008, would not be available to anyone. On this same date this Court again heard from Detective Melendez who conducted the forensic examination upon the various pieces of computer equipment as well as other electronic media such as the various cell phones at issue then claimed that he could not recall finding any specific e-mails despite the fact in his departmental report Detective Melendez identifies three e-mail addresses that he attributed to Mr. Alexander. Civilians, Chris and Sky Hughes also testified on June 18, 2010. Ms. Hughes testified that she and her husband Chris provided Detective Flores with the passwords to Mr. Alexander’s G-mail account.
On June 30, 2010, after offering testimony that those text messages sent or received by Mr. Alexander prior to the month of June, 2008 did not exist the State disclosed
hundreds of text messages that were either sent or received between February 17, 2008, and June 4, 2008. Similarly. on October 22, 2010. the State disclosed approximately 8,000 e-mails, the bulk of which were part of Mr. Alexanders G-Mail account. Recalling that during his testimony on June 18, 2010. Detective Flores told this court that he did not find anything out of the ordinary in Mr. Alexander’s G-mail account and that he further testified that the Instant Messages were interspersed amongst the e-mails. Despite being characterized as being ordinary by Detective Flores, it is of important to note the relevant and exculpatory content found in Mr. Alexanders G-mail account;
1. A January 29, 2007 e-mail sent from Mr. Alexander to Chris and Sky Hughes complaining about their decision to tell Ms. Arias that he is abusive towards women.
2. Ms. Hughes’ response that she sent to Mr. Alexander on the same day, wherein she points out that Mr. Alexander refers to Jodi as “skank“ and that he keeps his relationship with her a secret.
3. A response from Mr. Hughes sent on January 31, 2007. wherein he asserts that he believed Jodi would be his [Travis’] next victim and that Jodi was just another girl that he [Travis] was playing.
4. Mr. Alexander’s response to Mr. Hughes that he sent on January 31, 2007, wherein he admits that with certain people “I am a bit of a sociopath.”
5. An e-mail sent from Ms. Hughes to Mr. Alexander on this same topic wherein she describes Travis using Jodi as a “booty call.” How he, Mr. Alexander, was abusive to Jodi and “not nice to girls”, how he was beating her emotionally in part by making out with her without giving her a commitment. In this email Ms. Hughes further chastises Mr. Alexander for only giving Jodi 3am phone calls and make out fests.
6. A lengthy e-mail from a “youdon’firstname.lastname@example.org” threatening Mr. Alexander sent on June 29, 2007.
7. An e-mail from Mr. Alexander’s girlfriend, Lisa Andrews, wherein she complains of Mr. Alexander’s conduct making her feel used and dirty, sent on September 23, 2007.
8. A picture of Ms. Arias wearing a t-shirt denoting her as Travis Alexander’s.
9. An IM conversation that took place on May 26, 2008. during which Mr. Alexander asks Ms. Arias “how a heart beats in such a corrupted carcass” that she is a “three hole wonder” and tells her that she is “shit” and “worthless.”
It should also be noted that the text messages that were purported to not exist also contained relevant information which supports the idea that Ms. Arias and Mr. Alexander had a long term sexual relationship while he was dating other women. Certainly, while many of these e-mails were brought into evidence during the first trial and remain viable evidence for the upcoming retrial, any denial that the State interfered with and in fact tried to prevent Ms. Arias’ defense team from developing her mitigation case contradicts reality.
In May of 2012, the States efforts to interfere with Ms. Arias‘ ability to defend herself at trial and her life continued. For it was at this time that Ms. Arias filed a motion seeking to obtain possession of this hard drive so that she could conduct her own testing. In that motion Ms. Arias pointed out the following:
On May 19, 2012, this Court ordered the State to make the hard drive available by June 1, 2012. The state claimed it needed approximately two weeks to find and make arrangements to have the hard drive available. At no time on May 19, 2012 did the state advise this Court or counsel that it intended to have the hard drive tested prior to making it available for the defense. On or about June 1, 2012, Ms. Arias’ agent went to the Mesa Police Department to obtain the hard drive. While at the Mesa Police Department he was advised by Detective Flores that testing had been done on the hard drive and that images were obtained on 3 of the 4 parts of the hard drive. Based on this assertion, Ms. Arias decided not to conduct her own testing until she had the results of the work that the State had purportedly performed because if the information listed above was already available, there would be no need for her to conduct further work.
To that end, on or about June 25, 2012, Ms. Arias filed another motion to obtain “the results of any and all testing conducted by the State and/or its agents upon the Western Digital laptop drive and/or Accomdata drive contained in Mesa Police Department item number 402873. On July 12, 2012. this motion was discussed in court and the State informed the court and Ms. Arias that “the item was sent over to an outfit in Texas and they were working on it. They began working on three of the images. They hadn’t begun work on the fourth image. But they hadn’t been able to make a mirror image of‘ any of it.” The State then claimed “I don’t have anything to tum over.” Subsequent to this hearing based on the record made by the State on August 2, 2012, the State asserted, after claiming that defense counsel lived in a fantasy world,
seemingly for believing Detective Flores, that “We still don’t have anything. And the reason I don’t have anything is either that it isn’t completed. hasn’t been sent or I haven’t been notified. I suspect it’s still probably being examined but that’s a guess on my part.”
On September 6, 2012, the State advised the court “Judge. there was an issue about the hard drive last time I checked on it. And as you know it was sent out to Texas. I was told that there was a problem in getting a part in order to image the hard drive so that we could make it available to everybody. As of Tuesday. l believe. of this week they still had it and had not completed the work. So I indicated to the detective that he was to let them know that even if the part hadn’t arrived or for whatever reason the part had arrived and they couldn’t get the work done that they were to return it to the Mesa police department. And once the Mesa police department has it. defense Counsel could come by and pick it up.”
On September 13, 2012. the State, via Detective Flores, advised Ms. Arias that the Texas company who had possession of the hard drive. TLSI had in fact imaged data as evidenced by the e-mail included below.
Esteban Flores< Esteban.Flores Thu. Sep 13. 2012 at 12:43 PM
To: Laurence Nurmi
I just spoke to the representative of TLSI Inc. in Texas and he said they were going to ship the drive back to us tomorrow or Monday by the latest. As far as what they recovered, he couldn’t say. He said they imaged data. but doesn‘t know what the data is. Once we get the data back to Mesa, my computer forensics unit will attempt to interpret the data. l’ll update you as soon as l have more info.
On that same day Ms. Arias asked for a copy of the imaged data. she received no response and assumed that the Mesa Police Department was still working on the imaged data and that disclosure would be forthcoming.
Then, on October 16, 2012. the State changed its story and claimed that they received no imaged data or anything from TLSI and again made this assertion on October 18, 2012. Thus, months after making her motion Ms. Arias had no results from the testing of the hard drive nor any information regarding what, if any, testing was done on this hard drive. On October 18, 2012 counsel contacted Mr. Weichman at TLSI, Inc. to request all records regarding TLSl’s involvement with the hard drive pursuant to the this Court’s order. On October 19, 2012, receiving no response from Mr. Weichman. undersigned counsel called and left a voice mail message for him. On October 23, 2012, Ms. Arias heard back from Mr. Weichman via e-mail wherein he indicates, as Detective Flores had on June 1, 2012, that copies were made of three portions of the hard drive and that a fourth image was something that he was not able to obtain. Mr. Weichman further indicated that the he had sent a copy of the hard drive to the State on October 23, 2012.
Thus it seems that the fact that images were obtained from this hard drive were obtained in the real world as opposed to in the fantasy world that the State accused Ms. Arias of being in when she accepted Detective Flores assertions as true, which they turned out to be. See Motion to Continue Filed October 23, 2012 and supplemental Motion to
Continue Filed November 7, 2012.
Discovery violations have also continued up to the point that they have occurred within a week of trial and are of the nature that they will not be resolved until after jury selection begins and in all likelihood will not be resolved until after opening statements are made. Specifically Ms. Arias is referencing the fact that the State despite months of requests by Ms. Arias, finally disclosed its witness list to Ms. Arias. The State disclosed its substantial list of witnesses on September 19, 2014, Jury selection began on September 29, 2014. This list contained two civilian witnesses whose participation in these proceedings were previously unknown to Ms. Arias. The State also noticed additional civilian witnesses who had not previously testified in the first trial.
Furthermore, on September 26, 2014, the State gave verbal notice that they were adding yet another civilian witness to their list whose participation was also unknown to Ms. Arias. As it relates to the expert witnesses during court hearings that took place on September 22, 2014, Ms. Arias was advised that Doctors DeMarte and Hayes had not yet formulated their respective opinions on this case. The asserted reason for this was the fact that the State had yet to complete the interviews of Ms. Arias‘ experts. However, the notes of these experts were disclosed to the State in July of 2014.
B. FACTS RELATED TO THE STATES HARASSMENT OF WITNESSES AND COUNSEL DURING TRIAL AND THE STATE’S CONTINUED HARASSMENT OF POTENTIAL MITIGATION WITNESSES
The facts related to the State’s harassment of potential mitigation witnesses during the first trial and those who were going to participate in the subsequent proceedings are under
seal and thus, Ms. Arias would draw the court’s attention to both the pleadings submitted in relation to this issue and the transcripts of the surrounding proceedings.
However, not all of the State’s harassment of witnesses and counsel needs to be protected by sealed discussions because these instances of misconduct took place in open court. As during these proceedings, Counsel for the State was allowed to assert that Ms. Arias’ expert witnesses had inappropriate feeling towards Ms. Arias and that was why they were coming to the conclusions that they were. Counsel for the State was allowed to do this without any evidence to support these assertions. Not content with unprofessionally insulting Ms. Arias’ experts, Counsel for the State on at least three separate instances, engaged in unprofessional conduct by personally insulting defense counsel. During two separate bench conferences, Counsel for the State, verbally attacked Ms. Willmott by saying that she “needed to go back to law school” and by saying that if he was married to her that he would “fucking kill himself.” Of note is the fact that these comments did not remain at bench in that these comments were unsealed after a mistrial was declared on May 23, 2013. Subsequently they were published by the Arizona Republic, whose primary readership resides in Maricopa County. Not content on making unwarranted personal attacks on Ms. Willmott, Counsel for the State, chose, during his cross examination of Ms. Arias, to physically mock counsel for Ms. Arias (not once but twice) and while this improper behavior was met with an objection and a request for sanctions, no sanctions were imposed. Note should also be made of the fact that Counsel for the State’s misconduct during trial was not limited to the walls of the courtroom as both witness testimony and media
reports document the fact that Counsel for the State chose to sign autographs for those who evidently find him to be a celebrity. To be clear, at this juncture, issue is not being made of the fact that the incident took place but rather the fact that the incident at issue took place in front of the courthouse at a point in time in which the jurors who had not yet decided Ms. Arias‘ guilt could very well have seen this incident.
C. FACTS RELATED TO MS. ARIAS DISPARATE TREAMENT BY MCSO
On February 19, 20l4. while Ms. Arias was in court, her cell was searched by two MCSO officers working for intelligence. Ms. Arias learned of the search from another inmate. It was also obvious that her cell had been searched as items were out of place when she returned from court. At the time, Ms. Arias had two pictures in her cell. The pictures were drawn with colored pencils and paper Ms. Arias purchased from the commissary. Neither of these drawings was confiscated. nor was Ms. Arias disciplined for drawing or having the drawings in her cell.
On February 20, 2ol4. Ms. Arias’ cell was searched again. During this search officers were present along with the Jail Commander. Again, the same drawings were in Ms. Arias’ cell. Again, neither was taken nor was she disciplined.
On February 21, 2014. Ms. Arias’ cell was searched again. During this search, Officer Gill videotaped the search while Lt. Kraetsche was present. The drawings were present in Ms. Arias’ cell but were not confiscated. Ms. Arias was not disciplined.
On February 26, 2014. Ms. De La Rosa visited Ms. Arias. Undersigned counsel was not present; however, counsel learned of the troubling situation as soon as Ms. De La
Rosa left the jail. Prior to being escorted to the legal room. Ms. Arias‘ feet were chained and her hands were handcuffed per normal procedure. Ms. Arias had a manila envelope with her, marked “Legal Mail” and addressed to undersigned counsel, “Jennifer Willmott.” The manila envelope was sealed. Ms. Arias handed the envelope to Officer Trojanek prior to the legal visit for inspection. Officer Trojanek inspected the envelope but chose not to open it. Officer Trojanek also inspected and leafed through other legal paperwork that was in a manila Folder that was not sealed. The inspection was videotaped by security cameras.
After the inspection process, Ms. Arias was escorted to the legal room where Ms. De La Rosa was waiting. During the legal visit. Ms. Arias gave Ms. De La Rosa the manila envelope and asked her to deliver it to undersigned counsel. There is nothing unusual about Ms. De La Rosa delivering legal paperwork to counsel. In fact, over the last two years of legal visits, it was quite common for Ms. Arias to give legal paperwork to counsel.
However, on this particular occasion, when Ms. De La Rosa was leaving the jail, she was stopped by Officer Rasmussen who advised Ms. De La Rosa that all mail needed to be searched. According to Rasmussen’s account. Ms. De La Rosa complied and opened the envelope. After reviewing all of the legal documents, Rasmussen found a drawing (one of the same that had been in Ms. Arias’ cell the previous week) and confiscated it. Ms. Arias was written up in a Disciplinary Action Report which is attached as Exhibit A.
On February 28, 2014, Ms. Arias had a hearing regarding the Disciplinary Action Report. The Sergeant took no action since he found that the “envelope was handed to an officer prior to the visit.” Therefore. Ms. Arias was not disciplined. See Exhibit A.
On March 25, 2014, Ms. Arias’ cell was searched once again. Officers allegedly found a letter that was written on plain paper. Ms. Arias was ticketed for writing a letter on paper that was not lined. Ms. Arias has never received a ticket for such actions, even though she has written numerous letters on plain paper in the last 5 years. Ms. Arias filed a grievance with MCSO for the ticket. The ticket was not sustained and Ms. Arias was not disciplined. See Exhibit B.
On May 16, 2014, Ms. Arias discovered that MCSO had taken legal documents during another search of her cell. The documents consisted of a photocopy of a book written about Ms. Arias’ trial. Ms. Arias’ legal team gave her a copy of the book so she could review it and make notes for an ongoing mitigation investigation. The book was contained inside two large envelopes that were clearly marked “Legal Mail.”
There were personal notes Ms. Arias wrote in the margins of the copies for her legal team. Ms. Arias learned of MCSO taking the book after MCSO had kept it for approximately a week and then returned it.
Ms. Arias filed a grievance with MCSO about them taking the legal notes. Despite MCSO initially claiming that she did not have permission to have the Xeroxed copy of a book in her cell, the items were returned and Ms. Arias was allowed to keep it in her cell. The final ruling from Sergeant Rogers indicated that these notes should not have been taken nor should they have been considered contraband in the first place. The particular
concern with this matter is that MCSO had Ms. Arias‘ legal documents in their possession for approximately one week. Undersigned counsel suspects that a copy was made and potentially given to the prosecutor. See Exhibits C, D, and E.
D. FACTS RELATED TO THE STATES CASE AGENT DISCLOSING SEALED INFORMATION WHICH WAS LATER PUBLlClZED BY HIS WIFE.
During Ms. Arias’ first trial, several issues arose that were addressed in sealed proceedings. Typically present at these sealed proceedings were Ms. Arias, members of her defense team. representatives of Mr. Alexander’s family. Counsel for the State, Juan Martinez, and his case agent Detective Esteban Flores. Not present in these meetings was the wife of Esteban Flores, Corrina Flores, who had a Twitter account in April of2014.
This Twitter account, which is denoted by the username @lmBossThatWay, contained a picture of Ms. Flores as part of its “handle”. During early April 2014, tweets from this account include pictures of Esteban Flores and pictures of Esteban Flores with his wife Corrina Flores See Exhibit F (Digital CD attached). Thereby, seemingly precluding any assertion that the attached tweets are genuine, meaning that Ms. Flores is indeed the author of these Tweets, however, should any doubt remain, the text of these Tweets relinquishes all doubts. ln this regard Ms. Arias would bring the court’s attention to a few specific tweets, the subject matter of which was only known to those present during these sealed proceeding. The subject matter of one tweet being that a member of the court staff said that Mr. Martinez should be stabbed 27 times and one tweet in which Ms. Flores claims that a juror was dismissed because she was joking about Ms. LaViolette’s
wages versus the cost of her chair. As the court is aware Ms. Flores was not present during any sealed proceedings but her husband, case agent Flores was, thus leading to the logical conclusion that Ms. Flores obtained this sealed information that she publicized via Twitter, from her husband. Additionally, Ms. Flores attempts to start a campaign by taxpayers to file a law suit against the defense team. A more comprehensive list of tweets by Ms. Flores wherein she violated court orders by disclosing sealed information is attached to this motion. See Exhibit F and G.
E. CAMPAIGN OF HATE PROMULGATED BY THE CASE AGENTS WIFE
Ms. Flores’ presence on social media is not limited to her Twitter account, in that she has also posted videos on YouTube wherein her status as the poster is not in doubt. This video, best described as a mock movie trailer. contains assertions that Mr. Martinez and Detective Flores are the heroes of the story while Ms. Arias‘ defense attorneys are the villains of the story. Ms. Flores later goes on to label Ms. Willmott as “Sarah Palin” and Mr. Nurmi as “Jabba the Hut.” See Exhibit F. The slanderous nature of these comments are an issue for another day but it is important to make further note of the fact that Ms. Flores’ slanderous attacks have also targeted Ms. Arias’ Mitigation Specialist Maria De La Rosa to whom she consistently refers to as being “shady”
F. MCSO’S PUBLIC REACTION TO A FABRICATED MOTION SUPPOSEDLY WRITTEN BY MS. ARIAS FURTHER INHIBIT HER ABILITY TO RECEIVE A FAIR TRIAL
On or about April 19, 2014. media reports began to surface that Ms. Arias had filed a motion in federal court seeking civil damages and a restraining order against Sheriff Arpaio and civil damages against TV commentator Nancy Grace. The contents of the
motion, in sum, are that Ms. Arias, the purported author of this motion, was seeking these remedies because of comments that Ms. Grace had made about her and against Sheriff Arpaio because she had a leaky breast implant that was not being treated and because she had contracted Hepatitis C while at the jail. The information contained in the motion is utterly false and the motion itself was an obvious forgery. The motion supposedly written by Ms. Arias was typewritten and Ms. Arias does not have access to a typewriter.
The signature on this typewritten motion does not match Ms. Arias’ signature, a signature that she has authored many times while incarcerated at the Estrella Jail. Finally, the motion denoted Ms. Arias’ address to be at the 4th Avenue Jail when Ms. Arias resides in the Estrella Jail. Thus, with a mere cursory review of this motion and a minimal knowledge of the Maricopa County Jail System. one could easily discern that Ms. Arias did not file the motion at issue. Despite these facts. Sheriff Joe Arpaio gave an on-camera interview with ABC 15 News, a station whose primary broadcast area is Maricopa County during which he claimed that Ms. Arias was filing said motion merely to seek publicity. Thus, the viewership of both ABC 15 and those who have visited their web page have the opportunity to see Sheriff Arpaio make these erroneous allegations against Ms. Arias. See Exhibit F.
II. RELEVANT LAW AND ARGUMENT
A. ALL OF THE CONDUCT REFERENCED HEREIN IS STATE CONDUCT
When a law enforcement agency “investigating a criminal action operates as an arm of the prosecutor for the purpose of obtaining information that falls within the provisions of Rule 15.1” Carpenter v. Superior Court 176 Ariz. 486. 490 862 P.2d 246, 250 (1993).
Furthermore, Ms. Arias asks this court to bear in mind that any sanction available to this court may be imposed if the failure to disclose can be attributable to any State actor involved in the prosecution. State v. Meza 203 Ariz. 50. 50 P.3d 407 (2002).
Thus, the actions of persons outside of the County Attomey”s Office is still “State Conduct.”
Pursuant to this clear reality the State cannot divest itself from the conduct of Detective Flores when he chooses to disclose sealed information to his spouse nor can the State draw any sort of distinction between themselves and the MCSO investigators who choose to search Ms. Arias cell and confiscate privileged legal documents, not can the State separate itself from the public statements made by MCSO’s top official, Sheriff Arpaio.
B. THE BRADY VIOLATIONS COMMITTED BY THE STATE ARE NUMEROUS AND WARRANT THE REQUESTED SANCTION
The facts detailed above are indisputable, making the question not if the State has violated the mandates of Rule l5. l, Arizona Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963). but what sanctions, if any. will this court impose for these repeated violations that have occurred in conjunction with all of the other misconduct committed by the State. As she has in the past, Ms. Arias, in this motion, continues her oft repeated assertion that this prosecutorial misconduct should not simply be ignored but that it should be sanctioned and sanctioned harshly.
The question of the denial of the sanctions that Ms. Arias has sought in the past, related to the guilt phase portion of her trial is an issue for another day. However, what is at issue presently is whether or not the violations combined with all of the State’s other
misdeeds warrant the imposition of meaningful sanctions during what is exclusively a penalty phase.
In this regard Ms. Arias would point out that. while Rule 15.7. Arizona Rules of Criminal Procedure dictates that sanctions for the failure to make disclosure include; (a)(2) dismissing the case with or without prejudice or (a)(6) any other appropriate sanctions, that limiting the evidence are rarely imposed sanction. Slate v. Fischer, 14] Ariz. 227, 246. 686 P.2d 750 (1984), Barrs v. Wilkinson. l86 Ariz. 514, 924 P.2d 1033 (1996). However, the same cannot be said for the when the requested sanction relates merely to sentencing for as Burrs points out:
‘[E]liminating a sentencing altemative is not the same as precluding a witness or other evidence from trial. Because the exclusion of proof can profoundly impact a case on its merits we have held such action to be suitable “only where other less stringent sanctions are not applicable to effects the ends of justice.’ Burrs at 516. citing State v. Fisher I 41 Ariz. 227. 246. 686 P.2d 750. 769 (1984).
Furthermore, as Barrs goes on to point out ‘[s]imilar concerns. however, are not present where the only potential “loss” to the criminal proceeding is a sentencing option.” Id at 5l6,lo35.
C. THE INSTANCES OF IMPROPER CONDUCT OF THE STATE DURING THE TRIAL ARE NUMEROUS AND WARRANT THE REQUESTED SANCTION
During the course of Ms. Arias’ first trial. Ms. Arias was forced to request a mistrial on a near daily basis based on the improper conduct of the State. Most of these are legal claims that will be addressed in postconviction proceedings. However, some of
the improper conduct that the State has already engaged in will affect the upcoming proceedings as Counsel for the State insulting and/or aggressive behavior has caused one expert to rescind her previous willingness to offer testimony on Ms. Arias’ behalf.
Furthermore, during recent interviews two civilian mitigation witnesses who had previously agreed to offer testimony during the upcoming penalty phase have now decided not to participate in the proceedings because they fear that the State’s improper personal attacks in court will inspire others to attack them outside of court. In sum they fear that what happened to Dr. Samuels, Ms. LaViolettc and Ms. Womack as a result of the State’s misconduct will happen to them.
D. THE STATES MISCONDUCT HAS NOT STOPPED SINCE TRIAL CONCLUDED AND HAS THUS FURTHER INTERFERED WITH MS. ARIAS’ ABILITY TO RECEIVE A FAIR TRIAL
In her retrial, Ms. Arias must endeavor to paint a complete picture of her relationship with Mr. Alexander through an expert witness on the subject of domestic violence and addictive relationships. In considering this motion Ms. Arias reminds this court that painting such a picture is not a matter of aspiration. but instead it is the duty of defense counsel to paint such a picture. Wiggins v. Smith. 539 US. 510 (2003) at 524, citing ABA GUIDELINES.
Furthermore, Ms. Arias asks this court to be cognizant of the fact the she has an absolute right to present mitigation evidence at trial and that in a capital case and that every effort must be made to guarantee a defendant the right to present all relevant mitigation evidence to the jury that will decide whether she lives _or dies. That is because the capital sentencer may not he precluded from considering. and in fact may not refuse
to consider, any relevant mitigating evidence, regardless of whether that evidence has a specific nexus to the crime committed. Instead, the sentencer in a capital case must consider in mitigation anything in the life of the defendant that might mitigate against a sentence of death. Smith v. Texas, 543 U.S. 37. 43-45 (2004): Termard v. Drerke, 542 U.S. 274, 285-86 (2004); see also U.S. Const., Amends VIII & XIV: Ariz. Const., Art. 2,
15. Mitigating circumstances are, “circumstances which do not justify or excuse the offense, but which, in fairness or mercy, may be considered as extenuating or reducing the degree of moral culpability,” Coker v. Georgia. 433 U.S. 584. 590-91 (I977).
Of further note is that preclusion of mitigation evidence constitutes a violation of the Due Process Clause of the United States Constitution. Green v. Georgia, 442 US.‘95, 97 (I979); U.S. Const.. Amend. XIV; see also Ariz. Const., Art. 2. § 4.
As the facts related to the State’s choice to further harass mitigation witnesses, after already personally attacking others at trial are under seal Ms. Arias simply requests the opportunity to argue this portion of the motion in closed proceedings.
E. TAKEN AS A WHOLE THE STATES MISCONDUCT HAS CREATED AN ATMOSPHERE IN WHICH MS. ARIAS CANNOT RECEIVE A FAIR TRIAL DURING HER UPCOMING SENTENCING PHASE
Certainly, dismissal of the State’s Notice could be seen as an extreme remedy, however, it would further seem hard to characterize the State’s misconduct as anything but extreme as well. The State’s actions before, during and after trial. taken as a whole, have created an atmosphere in which Ms. Arias cannot receive a fair trial. Ms. Arias can make this assertion because. taken as a whole, as described in this motion, the State has improperly harassed both expert and civilian witnesses whom Ms. Arias sought to call as
mitigation witnesses to the point where they are not willing to participate in the proceedings. As detailed above the State has improperly insulted counsel for Ms. Arias both during trial and after trial by releasing sealed information to non-parties who released the information via social media. These factors combined with the reality that the State has hidden discovery from Ms. Arias, discovery that touched on her ability to defend herself at trial and on her ability to defend her life that the State hid with such evidence with reckless disregard for the aforementioned authorities that serious questions still exist about whether or not the State has complied with its obligations under Brady. Thus. it is with all this in mind Ms. Arias asks this court to be mindful of the fact that the death penalty is not a constitutional imperative to which the State has a right, nor is such a sentence a statutory requirement; far from it. it is merely a sentencing option that is itself alleged optionally. Ms. Arias also asks this court to be mindful of the fact that Ms. Arias is making this request at a point in time when the State’s desire to impose death was already denied by a jury and at a time when. pursuant to the dictates of 13-752(K), the State can only seek this penalty on one more occasion. Thus, this Notice can be easily discarded to uphold the United States and Arizona Constitutions’ the effective assistance of counsel, due process, and even victim’s rights under Arizona Const. Art. 2.2-which notably does not include the right to a death sentence. The laws of the State of Arizona are always satisfied by a life sentence for the crime of First Degree Murder.
Thus, its elimination as a sentencing option should not be seen as a severe infringement upon the State’s interest. Instead. the dismissal of this Notice should be seen as not only a plausible solution but the only viable legal solution when the State‘s choice to invade
these proceedings with a level of misconduct that has negated Ms. Arias’ ability to exercise the rights due her via the Fifth, Eighth and Fourteenth Amendments of the United States Constitution, as well as Art. II, § 4 and Art. III of the Arizona Constitution.
Of particular import at this stage of the proceeding is how the State’s misconduct has negated Ms. Arias’ ability to present mitigating evidence which. pursuant to the authorities mentioned above, is an unmitigated constitutional mandate that is not only well-established but dispositive on the issue as any death sentence imposed on Ms. Arias can never be imposed. Skipper.
The State’s actions in this case tell a tale of misconduct that began before the trial started, while it was taking place and after it concluded. As the facts and the authorities cited above demonstrate, because of this misconduct. Ms. Arias cannot receive the full benefit of the rights due her pursuant to the Fifth, Eighth and Fourteenth Amendments of the United States Constitution. as well as Art. ll. §4 and Art. III of the Arizona Constitution, as well as the other authorities mentioned above. Ms. Arias requests that this Court dismiss the State’s Notice of Intent to Seek the Death Penalty filed against Ms. Arias as the State’s misconduct in this case deserves no other a response.
RESPECTFULLY SUBMITTED this 1st day of October, 2014.
etc. ( exhibits omitted )
Converted to text from this scan of the original motion.