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Updated Apr 27, 2015 - 8:38 pm

Legally Speaking: Legal insanity in the Jodi Arias retrial

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By MONICA LINDSTROM, KTAR Legal Analyst, Co-host of The Agenda, November 2, 2014 | 7:11 pm

Has Judge Sherry Stephens trumped the Constitution?

I have said time and time again the State v. Jodi Arias is the
poster child for “unpredictable.” Just when you think the trial is
heading north it ends up heading south. This week the players did
nothing to rebut and, in fact, solidified, this statement.

The buzz is that Judge Stephens trampled all over the public’s
right to “open door justice.”

On Thursday afternoon she kicked everyone
out and sealed the courtroom for a “mystery witness.” Speculation ran
rampant as to who this mystery witness was. At the same time, insults were
flying around social media about Judge Stephens.

“How could she do
this?” “She should be impeached!” “She is on Jodi’s side!” “The public
has a right to know!”

Various media outlets were outraged. One had their attorney file an appeal
with the Arizona Court of Appeals asking it to tell Judge Stephens she
is wrong. The hope is to force her to open the courtroom to see this witness, arguing that closing the courtroom and refusing to release the name of
the witness violates the public’s rights and the United States
Constitution.

The media has a great argument but, unfortunately, Judge Stephens might have the law on her side.

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.”

So, here is the possible winning argument Arias can give to Judge
Stephens if we are talking about a witness testifying.

“Judge, defense witness X’s testimony is essential to Jodi
Arias’ defense but they are scared for their lives/business and will not
testify with the media/public in the courtroom. As such, Arias’ right to
a fair trial by an impartial jury is in extreme danger. Therefore,
defense moves the court to kick everyone out.”

That is what Judge Stephens
would need to find under Rule 9.3 to justify her actions.

FOX 10’s Troy Hayden tweeted the mystery witness was Arias herself. If so, the argument
above doesn’t hold water. Arias herself can’t be scared for her life and
she doesn’t have a business, so having the media/public in the courtroom
during her testimony would not be dangerous to her right to a fair trial.

I can’t think of a rock solid argument Arias could make to keep the media out if it is her testifying. Steps have already been taken to protect her, such as, no broadcasting until after the verdict and continuous reminders to the jury of their admonition.

Now let’s go back to the situation where it is a witness testifying and not Arias. 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.”

If Judge Stephens finds there is not “a clear and present danger to the
defendant’s right to a fair trial by an impartial jury” under Rule 9.3(b), she can then use 9.3(c) to
kick everyone out EXCEPT the media if the witness would be embarrassed
or emotionally disturbed.

This is similar to what happened in the first
trial with Darryl Brewer, Arias’ ex-boyfriend. When he requested not to
be on camera the cameras were simply lowered. No one was kicked out.
This could obviously be done again.

What does this all mean?

I hate to say it but It means the Judge Stephens may have the support she needs in the Arizona Rules of Criminal
Procedure for her ruling which means she has not necessarily violated
the Constitution.

What could happen?

The Court of Appeals could tell Judge Stephens she is
wrong. It could order her to open the courtroom for Arias’ testimony. Yet, it could support her for leaving it closed for the
witness pursuant to Rule 9.3.

What the Court of Appeals will do is
uncertain, yet one thing is certain, the judge’s decision to exclude the
media and public from viewing testimony and from even knowing who is
testifying is an extreme position that has resulted in even more delays
and money spent and has drawn even more attention and criticism.

What should happen?

In my opinion, Judge Stephens should allow everyone
and anyone in the courtroom to hear the defendant herself testify or
give allocution. And, if the standard is met, unfortunately, she should
close the courtroom for a scared witness. I hate to say it, and would
hate to see it, but the rules allow it. I wouldn’t be a fair analyst to
say differently.

This begs the question, will we get to see and hear the rest of the
State v. Jodi Arias trial?

I hope so.