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Updated Apr 27, 2015 - 8:38 pm

Legally Speaking: Dismissing death for Jodi Arias could be a reality

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By MONICA LINDSTROM, KTAR Legal Analyst, Co-host of The Agenda, December 2, 2014 | 10:12 pm

The Jodi Arias defense team filed a motion on Thanksgiving eve again asking Judge Sherry Stephens to remove the death penalty as a possible sentence.

The reasoning?

Arias can’t present a complete defense because the witnesses are too scared to testify.

Does the motion have merit?

The simple and unpopular answer is yes, yes it does.

Back on Oct. 30 Judge Stephens kicked the media and the public out of the courtroom for the testimony of a “secret witness.”

I write “secret” because at the time, I had no confirmation the witness was in fact Arias herself. This move enraged the media, who filed a special action with the Arizona Court of Appeals.

This resulted in the Court of Appeals issuing a preliminary ruling instructing Judge Stephens to open the courtroom. After some additional argument, the court issued its final ruling last Wednesday that the courtroom couldn’t be closed to Arias’ testimony. This was confirmation that the secret witness was, in fact, Arias herself. Thus far there is no indication this ruling applies to any witness other than Arias.

On the heels of the appellate ruling, the defense reurged the motion to dismiss death by claiming witnesses would not testify in open court and, as such, Arias couldn’t present a complete defense.

Now, I know most have, and will, shake their heads vehemently at this assertion and yell “hogwash” or some other interesting term; however, the defense may have a sound argument.

A big part of our criminal justice system and Constitutional principles is that a defendant has the right to confront their accusers, see the evidence against them, and call witnesses to testify on their behalf.

In other words, a defendant is entitled to defend themselves in all possible ways. The old mantra, “Its better to let a guilty person walk than put an innocent person in jail,” applies. (Yes, Arias has been found guilty and she is not trying to prove innocence, only that she is entitled to live.)

With this being said, here is something to ponder.

Is it American to prevent witnesses from testifying for a convicted murderer?

Emotionally many would say YES — she killed a man!

How about rationally though? Are we ready to see our basic principles of the system fall over one case? I say no.

Chances are we will never have to actually answer that question in this case.

Arizona Rules of Criminal Procedure Rule 9.3(b) states:

“All proceedings shall be open to the public, including representatives of the news media, unless the court finds, upon application of the defendant, that an open proceeding presents a clear and present danger to the defendant’s right to a fair trial by an impartial jury.”

Rule 9.3(c) states:

“The court may, in its discretion, exclude all spectators except representatives of the press during the testimony of a witness whenever reasonably necessary to prevent embarrassment or emotional disturbance of the witness.”

Bottom line is there are things Judge Stephens can still do to comply with the Court of Appeals order and give Arias her right to present a full case.

First, the Court of Appeals order only appears to apply to Arias, and not any other witness.

Second, as Juan Martinez (the prosecutor) aptly points out in his response to the motion, the court can subpoena the witness to testify on behalf of Arias.

Third, the rules of criminal procedure allow, and the Court of Appeals even stated, there are less restrictive means to protect the witness and still provide transparency to the public.

Therefore, until the defense can prove Judge Stephens can’t practically use Rule 9.3 or subpoena the witnesses, then the motion probably won’t be successful.

However, if the witnesses refuse to comply with a subpoena then the defense’s motion to remove death has merit and will become much stronger.