Juan in a Million

The other day, I happened to stumble across a tweet from Michael Kiefer suggesting that our beloved Juan Martinez was being investigated by the AZ Bar Association for prosecutorial misconduct. Normally I disregard anything that generates from Michael Kiefer’s keyboard, but given my fondness and respect for Mr. Martinez, I felt compelled to look further into the matter. These were my key findings:

1) There have been dozens of articles written over the last 2.5 years accusing Mr. Martinez of prosecutorial misconduct

2) All of these articles (dating all the way back to March of 2013) assure that some sort of immediate disciplinary action would be/has been taken against Mr. Martinez because of this alleged misconduct

3) All of these articles were authored by Michael Kiefer

I am not disputing the fact that a complaint was filed against attorney Martinez and that it is being reviewed—what I am disputing, however, is the notion that Martinez is in trouble merely because he was named on a complaint. Whenever a complaint is submitted to the bar association, it automatically undergoes a superficial preliminary review process. Anyone can file a complaint to the bar association and it will be reviewed—literally anyone. If the Octomom and each of her 8 kids decided to file a complaint against Juan Martinez, all 9 complaints would be reviewed in due course. They’d likely end up dismissed, but they would still be reviewed nonetheless. It’s simply protocol.

This pending investigation is still very premature. In fact, most states don’t even recognize this cursory phase as part of the investigation—it is more of a preliminary review. It involves Mr. Martinez responding to the charges, and the complainant filing a rebuttal to his response. In the vast majority of cases, the bar counsel reviews the pleadings and dismisses the complaint due to lack of merit. This simple process is the extent of the “investigation”. Nothing happens beyond this unless the commission finds merit in the pleadings.

I’m not going to lie and pretend that I am not biased—I adore Mr. Martinez and would hate to see him accused of anything dishonorable. But, even if I were to put my personal views aside for a moment (and pretend that I was oblivious to the fact that >95% of bar complaints are dismissed), I’d still be convinced that this so-called investigation will amount to nothing. First and foremost, the disciplinary commission that handles bar complaints is comprised of attorneys only—not judges. Second, prosecutorial misconduct has been the theme of the Jodi Arias trial since the very beginning. It all began when a very disgruntled Nurmi developed a condition known as motionphilia.* Finally, If you recall back in mid-January, Judge Stephens issued a very detailed 16-page ruling dismissing every single allegation of misconduct against Mr. Martinez. So if the allegations of misconduct in this pending complaint are in any way related to the allegations that were previously dismissed (i.e., tampering with evidence, porn-gate, barring Jodi from testifying at her own trial under seal), the disciplinary commission will defer to the court’s prior rulings on these issues. It is very unlikely that a disciplinary commission will override a judge’s ruling or reverse a court opinion.

So all in all, this seems to be just another classic case of yellow journalism. It appears as though Kiefer is trying to play on the public’s lack of knowledge surrounding these administrative proceedings, and is trying hard to convey that Martinez is in deep trouble (even though I’m sure he’s well aware that >95% of the bar has been “investigated” for meritless complaints that are summarily dismissed). My guess is that the reason why his “source” isn’t able to reveal anything is because there is nothing to reveal. Must be a slow news day.

*Motionphilia: a rare but serious (and somewhat comical) condition triggered by envy, constantly being made a fool of, public humiliation, lack of attention, and greediness. Symptoms include filing dozens of useless motions on a weekly basis, weight fluctuations, weird fat distribution, and compulsive nose picking.

Appeals Process and The Alexanders’ Wrongful Death Suit

I have gotten a lot of questions about the appeals process, so I decided to put together a little blurb for anyone else who is curious about it. I also included some information at the end regarding the Alexander family’s wrongful death civil suit, for anyone who is interested. Keep in mind that this post is specific to the Jodi Arias case—the appeals process can vary based on the type of case as well as the jurisdiction in which the case is prosecuted (I am also not an attorney so don’t quote me or use this as a study guide for your appellate law final). 

Here is the general sequence of appellate procedure for criminal convictions:

Jodi has ONE direct appeal as a matter of constitutional right, and she has been appointed new attorneys who are appellate defenders. Once you are appointed appellate counsel, your trial attorneys are no longer involved with your case (Jodi filed her first notice of appeal on 4/20/2015, so Wilmott and Nurmi are officially done with her). This is the only appeal that is free, and if she loses, she will then have to pay out-of-pocket for any further appeals. It is incredibly difficult to get a conviction reversed on direct appeal, especially when there is DNA evidence. Jodi is going to have a very difficult time with this because she left a a lot of DNA. She also can’t really argue ineffective assistance of counsel—Nurmi pretty much eliminated this as an appellate issue by basically picking motions out of his nose all day everyday.

It’s safe to say that Jodi will lose on direct appeal. If she wants to, she can submit this appeal further along on the legal chain to the Arizona Supreme Court; however, they are even more stringent than the appellate courts and most likely will not even glance at her appeal. All this will do is prolong the rejection process. The entire direct appeal process—from when she files her first notice, until the Supreme Court Justice laughs her appeal off of his/her bench—will take approximately 18 months. After Jodi loses on direct appeal, she has no more appeals as a matter of constitutional right. This means that Jodi can continue appealing, but she has to pay out-of-pocket. Since I doubt anyone is going to want to represent Jodi for free, she is going to have to raise a lot of money (on average, they run upwards of $250,000). But if she can afford it, she can proceed in two ways:

1) A post-conviction appeal: this appeal is filed in state court, and it is the original trial judge (Judge Sherry Stephens) who makes the ruling. Judge Stephens will probably say that she will “take it under advisement,” which means it will sit on her desk for awhile until she formally issues a rejection. In order to get a reversal on post-conviction, you need brand new evidence that was not & could not have been discovered during the first trial. A good example of this is DNA testing. When DNA testing was first developed in the late 1980’s/early 1990’s, it resulted in numerous overturned convictions because: 1) it constituted brand new evidence that exonerated the guilty parties; and 2) it constituted evidence that could not have been discovered during the original trials (obviously because the trials took place prior to the inception of DNA testing).

Suffice it to say that Jodi Arias will lose on post-conviction. It seems very unlikely that Judge Stephens will reverse her conviction. She spent two long years enduring Jodi’s manipulation, and it seems that she knows full-well what Jodi is capable of. According to Troy Hayden, Judge Stephens really wanted Jodi to get the death penalty (I can’t verify the validity of this other than I heard it from Troy who heard it from his sources, so take it at face value). I don’t think I need to elaborate any more on why this appeal will be rejected. Once Judge Stephens rejects Jodi’s post-conviction petition, Jodi will file for an appeal against Judge Stephen’s ruling, and that will be summarily denied by the higher courts. After that, Jodi will then most likely file for a federal writ of habeas corpus. 

2) Federal writ of habeas corpus: this is the final avenue for which Jodi can appeal, and if she is not successful, then her case is closed. This not much different from the other appeals—the primary difference is that it takes place in the Federal Courts. It is also the most stringent in terms of prerequisites that are necessary for a reversal to take place. In order for a conviction to be reversed at the federal level, there must be a constitutional violation that occurred at trial, combined with brand new evidence that was not & could not have been discovered at trial. 

The federal writ of habeas corpus will be rejected fairly quickly. Rarely is it that a conviction is overturned at the federal level when there was forensic evidence at the crime scene. Also, there more than likely will not be any brand new evidence—if there is, it will probably just make her look even more guilty. I can’t imagine that the court would find any legitimate constitutional violations (if anything, the general public’s constitutional rights were violated when Judge Stephens banned us from the courtroom). It would be very difficult to assert ineffective assistance of counsel, thanks to Nurmi and his endless motions.

The entire appeals process can take several years (from when the first direct appeal is filed until the final appeal is rejected). After this, Jodi can no longer appeal, period. This is the one positive aspect about her getting LWOP instead of the death penalty; if she got the death penalty, the appeals would never stop. With LWOP, she only has the above-mentioned avenues to appeal, and if they are all rejected, she can’t do anything else. She just has to suck-it-up and grow comfortable with the fact that she is stuck behind bars forever. Also, because she no longer can appeal, there is no legitimate reason to have a canteen fund “legal defense fund,” or some obscure variant thereof.

Just a few quick things about the Alexanders and their civil suit…..

The Alexander family is going to win a huge verdict from their wrongful death suit. This is fairly obvious. In order to win a civil case, you don’t need to prove anything beyond a reasonable doubt; you just need to prove it by a “preponderance of evidence,” meaning that you just have to show it is more probable than not that the defendant caused a wrongful death (slightly more than 50% or greater). However, because the criminal trial yielded proof beyond a reasonable doubt, then by default it is implied that the evidence has been proven beyond a preponderance.

• Once a verdict is rendered, (wrongful death cases take ~2 years usually) there will be a hearing to enforce judgment. There is going to be a gargantuan verdict, in range of OJ Simpson, because people hate her so much. The more hated you are, the bigger the verdict (OJ Simpson, the national mascot for wrongful death verdicts, was ordered to pay over $30 million in damages—but somehow got away with paying only $500,000).
• The Alexander family’s attorneys will start investigating and seizing assets, piercing trusts, etc. They will be able to find any and all funds linked to Jodi, whether onshore or offshore, and seize them. If the trust/account is not in Jodi’s name, they will investigate to see if it is linked to Jodi in any way, and if so, they will take it.
• In civil cases, the only trusts that can be protected from seizure are those that are set-up for the children of the deceased person. Since Travis and Jodi were not married and had no children, there is no legitimate reason for any trust to be protected from the Alexanders. Also, Jodi’s family members cannot shelter her money in a trust. After a verdict is rendered, all family members’ trusts will be investigated (they can rightfully do this when judgement is enforced), and if any trusts are linked to Jodi, they will most likely be seized.
• Even if Jodi had a legal defense fund, no court in Arizona is going to allow for more than $100,000 for the direct appeal, and the same will be true for the post-conviction/habeas. So, if hundreds of thousands, or millions of dollars, are put into a “legal defense fund” for her, and a civil verdict is entered, the majority WILL go to the Alexanders.
  • If Jodi was given the death penalty, then about $2 million would have been expended on her appeal. But for LWOP, it will be like a blue-light special at Walmart in terms of legit legal fees.
• Also, if Jodi cannot chalk up enough money to retain an attorney, and the money in the “legal defense fund” ends up not being used for legal purposes, it will go to the Alexanders.
• These attorneys will not leave any assets left behind. These are smart-ass attorneys too— it is not like hidden or offshore assets are going to be a challenge for them to find (and let’s face it— peeps in Jodi’s circle just aren’t the brightest bulbs). It’s not as simple as putting trust in someone else’s name.
• Also, anyone involved in hiding or protecting assets for Jodi could potentially be prosecuted under federal law. Any criminal enterprise that contributes legal fees could be subjected to charges under RICO and money laundering federal statutes, as well as tax law violations if deductions are sought.

I’ve been getting a lot of queries about Jodi’s trusts in comparisons to OJ Simpson’s. Here is the simple answer: in addition to having five children for which he had set-up trusts for, OJ was acquitted and had several years to dispose of assets before the civil verdict. The laws that allowed him to move assets were also subsequently repealed. He was also rich to start off with and had already sheltered assets before the murder because of his divorce.

Thanks for reading! Good luck & keep writing those checks, Jodi-supporters. 🙂

——

A little side note:

Arizona Law recognizes what is called “Anders Law.” If Jodi asks for appointed counsel, she runs the risk of an “Anders Brief” being filed. This means that the appellate defenders office tells the court that they cannot in good faith file an appeal on her behalf because they found “no meritorious issues,” and then the court dismisses the appeal. She can still appeal after that, but she then also has to appeal the Anders Brief issue, which will weaken her case even more– before she can appeal, she will have to get counsel to argue that there are actually meritorious issues and that her case is not “wholly frivolous.” I’m not saying that this will necessarily happen, but if it does, it will just be another fun hurdle for Jodi. For more information, look-up “State v. Thompson – Supreme Court.”

On Open Letter to Maria De La Rosa: Quit Your Whining

Per-juror #17

I’ve been very quiet on Twitter lately because I have been trying to make sense of my feelings about the Jodi Arias verdict. Obviously, I am disappointed because I strongly feel that Jodi deserved the death penalty— not because I despise her, but because the aggravating factors clearly outweighed the mitigating factors (or lack thereof). But, I respected the outcome because I respect the system. The jury system is one of the most important freedoms we have in this country; it is the hallmark of our democracy because it is through juries that “We the People” have a voice. Rather than deferring life or death decisions to one authoritative figure, we impanel a group of 12 ordinary citizens, men and women, who are believed to represent a fair-cross section of the community.

Jury service is a high duty of citizenship, as jurors not only assist in the maintenance of law and order, but also uphold justice among their fellow citizens. In a very genuine sense, we rely on juries to safeguard life, liberty, and the pursuit of happiness. And, when jurors participate in sincere, authentic, and responsible ways, the welfare of our constitutional democracy is ensured. The cornerstone of every fair trial is an unprejudiced and impartial jury, and for this reason, we make every effort to impanel a group of individuals who exhibit absolute truthfulness, integrity, sound judgment, and a complete sense of fairness. Once these jurors are impaneled, they are given very clear instructions to apply the law to the facts as it applies, and they are not to substitute their own judgment as to what laws should be applied or whether the law as has been explained to them is unjust. Furthermore, the judge is forbidden to comment on the evidence presented in the case; it is solely up to the jury to autonomously evaluate the evidence and render a verdict based on the established laws that apply.

As I mentioned before, I was disappointed when I heard the verdict, but I respected it. However, that was prior to learning the details behind the verdict, specifically regarding juror #17. Now, I am no longer disappointed. I am horrified. There have been numerous reports regarding the transgressions of juror #17 (herein referred to as perjuror #17), and I will explain my current position based on my understanding of the situation. During jury selection, perjuror #17 indicated that she supports the death penalty. She may very well have been forthcoming about her position on the death penalty; however, she was not forthcoming about her position on the death penalty as it applied to Jodi Arias, or even her intention for being on the jury. During deliberations, she was not only unable to describe a circumstance in which she would vote for death, but she also expressed that she felt that the death penalty was “revenge.” Although the distinction between revenge and justice can be a bit murky at times, in principle, they are very different. I will elaborate more on that later.

There needs to be retribution here, because, not only did perjuror #17 violate her oath and misrepresent her intentions, but she also singlehandedly duped the entire system. She wasted everyone’s time and efforts: Juan, Detective Flores (who, still came to court everyday despite the devastating loss of his son), and the defense team. Not to mention the 14 other jurors who took 5+ months out of their lives, and away from their jobs and their families, to devote themselves to this case and fulfill their civic duty. This was not some case about a traffic ticket—this was a death penalty case. These jurors were forced to view countless gruesome images of Travis’ autopsy, the bloody crime scene, and Jodi’s asshole, all of which will likely haunt them for the rest of their lives. Some jurors were even forced to go against their own personal and religious beliefs in order to fulfill their civic duties. And while all of this was going on, perjuror #17 sat there quietly, pretending to listen and take notes, knowing full well that in the end, she was going to vote for life— not necessarily because she believed that Jodi deserved to live, but because she had her own personal agenda to fulfill. But, the most shocking and reprehensible part of all is what she did to the Alexander family. She sat in a room with the Alexander family for months on end, witnessed their pain and suffering, hearing their cries, and watching their worlds shatter all over again as they revisited the painful and horrific details of their brother’s murder. But, for perjuror #17, her personal agenda was more significant than helping a family get closure for the loss of their beloved brother.

Justice was not served, and there needs to be retribution. And if the law cannot correct this, then the law needs to be changed. By retribution, I do not mean overturning the verdict and giving Jodi Arias the death penalty (although that would be pretty great)—I mean consequences for perjuror #17 for disgracing the entire justice system and violating her oath. I am not speaking from a place of bitterness because I wanted Jodi Arias to get the death penalty. I am speaking from a place of sadness and disappointment for the Alexander family because they did not get the closure that they had been patiently waiting and praying for for seven years. I believe that an evil person is someone who is privy to the suffering of others, and has the tools at his/her disposal to alleviate their suffering, but does not act. It is my estimation that perjuror #17 is psychologically similar to Jodi Arias. She is evil, narcissistic, and is unfazed by the pain and anguish of others. She may not be a killer in the literal sense, but she is in the figurative sense: because of her selfish motives, she killed the Alexander family’s hopes and dreams for getting closure for their beloved brother’s death.

Finally, I would like to say that I find it ironic that perjuror #17 suggested that the death penalty was synonymous with revenge. The death penalty is not revenge; it is justice. As I alluded to earlier, the distinction can be a grey area at times, but they are very different in principle. Justice is legally and socially driven; revenge is personally and emotionally driven. Justice is based upon established law and moral principles; revenge is based upon vindictiveness and spite. Justice offers a resolution and brings about closure; revenge is cyclic in nature and never ending. Justice protects society and prevents victimization; revenge puts society in danger and facilitates victimization. And finally, justice is grounded in fairness and equality; revenge is grounded in payback and self-entitlement. Voting for the death penalty is a vehicle for justice. Not voting for the death penalty to fulfill a personal agenda is a vehicle for revenge. 

With that being said, I am grateful for the 14 jurors who took this process seriously, and I salute and commend them for their time, service, and devotion to justice.