Michael Kiefer

The Republic | azcentral.com

The Jodi Arias sentencing trial reconvened today in Maricopa County Superior Court. But with Monday's allegations of prosecutorial misconduct and an ongoing battle over the media's access to the trial, no one was certain how much will be held out of the public's view in the coming days.

Defense attorney Kirk Nurmi had already been digging in against shuffling his witness list to seat witnesses who are not afraid to testify in open court.

The Arizona Court of Appeals last week ruled that he could not continue to take testimony out of earshot of the media and public until the court has a chance to hear oral arguments on the issue later this month.

Then, Monday's bombshell, a motion to dismiss all charges or at least the death penalty, alleging gross prosecutorial misconduct, raised questions of whether the trial can go forward at all.

If defense experts' claims are true that thousands of pornographic files on victim Travis Alexander's personal computer were destroyed while the computer was in possession of Mesa police, it could lead to criminal and ethics charges against the police and prosecutors.

When such issues arise before trial, prosecutors and defense attorneys often reach hasty plea agreements and the public never hears about the alleged misconduct or the plea deal.

Everyone has heard about the Jodi Arias case — even though much of the case has unfolded in secret.

The alleged police and prosecutor misconduct will likely come up in court today.

And if she follows her past practice, Maricopa County Superior Court Judge Sherry Stephens may well hold those discussions behind closed doors, court documents and trial observations indicate.

News outlets object

The most recent secrecy battle has involved the defense: Nurmi says many of his witnesses will not testify in front of the media and the public because of harassment that witnesses suffered in the first trial.

The Arizona Republic, 12 News and other news outlets objected in court.

The question has split the criminal- court community: In a death-penalty case, does the defendant's Fifth Amendment right to a fair trial and 14th Amendment right to due process trump the media's First Amendment right to report on it?

"Open trials are the way we ensure fair trials," said John Canby, a prominent defense attorney. "What gives me pause is that the witnesses said they won't come back if it's not secret. But if we're going to kill people in the name of the public, we damn well better know why."

The media took their case to the Court of Appeals last week, but the secrecy of the Arias trial began before then.

Much of the first Arias trial was argued at the bench with the voices of the judge and lawyers masked by a white-noise machine that became a running joke among journalists and bloggers and the people who followed them in cyberspace. Stephens briefly unsealed the content of those bench conferences after the trial, only to reseal them when their embarrassing content became known.

The first trial was a media circus, streamed around the world, and the Internet denizens viewed it as a morality play, a parable of good vs. evil. Attorneys and witnesses were ridiculed, harassed, even threatened. Some of them didn't show up for court.

The judge and attorneys responded by closing down.

Nearly all the evidentiary hearings in the year and a half leading up to the second trial were held behind closed doors.

The trial strategy was mapped out in secret. The media were forbidden from airing video of the trial until it is over. Nurmi's witness list was sealed, as were many of the motions filed by the attorneys. And almost half of the "minute entries" — that is, Stephens' rulings and journal entries — during that pretrial period were also sealed.

"I think that secret trials are bad," said attorney Tim Agan, who defended "Serial Shooter" Dale Hausner.

"I've represented much worse guys than Jodi Arias," he added. "I think this case is very unusual and shouldn't create precedence for any other case."

Arias was found guilty of first-degree murder in May 2013, but the jury could not agree on whether to sentence her to life in prison or death. That is the only question the current jury must decide.

The second trial began Oct. 21. The first week and a half were spent summarizing the Arias case for that jury — the gruesome photos of victim Travis Alexander, dead in the shower of his Mesa home; a phone-sex conversation between the sometime lovers; the lies Arias told during interrogation.

On Oct. 30, Nurmi was ready to present his mitigation evidence. Mitigation evidence is intended to persuade the jury to pick a life sentence over death.

Before Nurmi called the first of his witnesses, Stephens ordered the media and the public to leave the courtroom because the witness would not testify otherwise.

The Republic and 12 News called attorneys; other TV stations joined the lawsuit. Stephens stood firm. Then, on Nov. 3, the Court of Appeals told Nurmi and Stephens that they could not hold testimony behind closed doors until the dispute was fully aired before the appeals court.

The next day, the defense attorneys and prosecutor Juan Martinez huddled at Stephens' bench, their conversation drowned out by the white noise. Then, Stephens announced that there would be no witnesses until today.

Given the developments of this week, it is even less likely that any witnesses will testify. Nurmi has also asked that TV cameras be banned from the courtroom.

And the secrecy issue is not settled, so it's unclear if the trial will go forward until decided by the Appeals Court.

Bench conferences unsealed

The first Arias trial began Jan. 2, 2013, and soon descended into chaos — via the Internet and social media. Midway through the trial, the attorneys began spending more and more time locked in secret argument at the bench.

Almost five months later, on May 23, 2013, the jury announced it could not reach a unanimous verdict on life or death and was dismissed. Stephens declared a mistrial on the sentencing phase of the trial. A week later, on May 30, 2013, Stephens unsealed the videotapes and transcripts of the bench conferences.

On June 6, 2013, The Republicpublished an article about their content, highlighting Martinez's conduct.

During one conference, Martinez said that if he were married to defense attorney Jennifer Willmott, he "would f---ingkill myself."

In another conference, he told Willmott she should go back to law school. Nurmi spoke up on her behalf in both instances.

Judge Stephens did nothing — until a week later, when she resealed the bench conferences, saying they "could potentially affect a future jury pool."

And then, the courtroom doors remained closed for most of the subsequent pretrial hearings in which the defense and prosecution plotted out the course of the second trial.

From May 30, 2013, when she temporarily unsealed the bench conferences, until Sept. 29, the first day of jury selection for the retrial, Stephens wrote 54 minute entries; 25 of them referred to motions that were sealed, hearings that were closed or media access that was denied.

On Sept. 16, 2013, Stephens ordered that the mitigation witness list be sealed, without commenting why.

A settlement conference was closed. Motion after motion was sealed, as was the prosecution's proposed jury questionnaire.

Hearings were closed, despite objections from The Republic and other media, which Stephens dismissed.

And then on Oct. 30, Stephens ordered the courtroom cleared for the first mystery witness, and the media called their attorneys, claiming a First Amendment right to cover the trial.

"The trial court's closure order violates well-settled law," media attorney David Bodney wrote in his petition for special action to the Court of Appeals. "Under the First Amendment, the public has a strong presumptive right of access to criminal court proceedings."

Nurmi disagreed, and in his response, cited the Fifth, Eighth (against cruel and unusual punishment) and 14th Amendments as supporting his view that the testimony can remain secret.

He pointed out in the response that two mitigation witnesses refused to testify in the first trial because of threats. He has had difficulty enlisting new witnesses.

"Most, if not all of these people, were unwilling to testify on Ms. Arias' behalf because of the potential that they would face negative consequences for speaking on Ms. Arias' behalf," he wrote.

"Of the people who were willing to testify, some are only willing to offer testimony in sealed proceedings, so that their identities remain unknown to the public until after the proceedings are completed."

The Maricopa County Attorney's Office filed a brief with the Court of Appeals stating that it had no objection to the media hearing the testimony and opposed closing the courtroom.

Whose rights come first?

The judges and lawyers who try capital cases are split on whose rights trump whose.

Defense attorney Canby was unequivocal.

"I don't buy it," he said. "I just don't think a trial should be carried out in secret."

Veteran defense attorney Mike Terribile didn't think that Stephens would close the courtroom for no reason.

"There's got to be something else that came to her attention," Terribile said.

What that something is was discussed in secret, however.

But Vikki Liles, another defense attorney who takes high-profile cases, was adamant in support of Nurmi.

"The right of the defendant to present mitigation, free from threats, is superior to the rights of the public, the rights of the victim and the rights of the state."

Similarly, trial-court judges are of mixed opinion.

Kenneth Fields, a retired Superior Court judge who has also been a prosecutor and defense attorney, said: "You can't have secret trials; that's forbidden. It's just totally inconsistent with the American court system."

On the other hand, David Derickson, a defense attorney and former Maricopa County Superior Court judge, said that "to deny her the ability to present those witnesses because they won't show up if the press is there is a denial of due process."

But when asked if he would still hold that opinion if one of the secret witnesses, as rumored, is Jodi Arias herself, he quipped, "If he (Nurmi) can make a straight-faced argument that Jodi Arias has a secret left to tell after her other trial, then I want to hire him as a lawyer."