Developments in the Jodi Arias Death Penalty Trial

BREAKING NEWS:  Attorneys for Jodi Arias are filing for a stay of the Death Penalty portion of her trial with the AZ State Supreme Court, alleging Mesa Police Det. Esteban Flores perjured himself to support the aggravating factor of cruelty.  You can read the petitions here:


IN THE ARIZONA SUPREME COURT
JODI ANN ARIAS,
                     Defendant-Petitioner,
vs.
HON. SHERRY STEPHENS, JUDGE OF
THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR
THE COUNTY OF MARICOPA,
                      Respondent,
          and
STATE OF ARIZONA, ex rel., WILLIAM
G. MONTGOMERY, MARICOPA
COUNTY ATTORNEY,
            Real Party In Interest.
Arizona Supreme Court No.
______________________
Arizona Court of Appeals
No. 1 CA-SA 13-0026
Maricopa County Superior Court
No. CR 2008-031021
APPLICATION FOR INTERLOCUTORY STAY OF AGGRAVATION TRIAL
L. Kirk Nurmi, #020900
LAW OFFICES OF L. KIRK NURMI
2314 E. Osborn
Phoenix, Arizona 85016
Tel (602) 285-6947
Email: nurmilaw@gmail.com
Jennifer L. Willmott, #016826
WILLMOTT & ASSOCIATES, PLC
845 N. 6th Avenue
Phoenix, Arizona 85003
Tel (602) 344-0034
Email: jwillmott@willmottlaw.com
Attorneys for Defendant/Petitioner2
Petitioner, Jodi Ann Arias, by and through undersigned counsel, respectfully
requests this Court enter an interlocutory stay of only the aggravation trial in the
above-captioned matter.  This application is before the Court for the reasons stated
more fully in the incorporated Petition for Review, and more particularly:
I.
This Court has jurisdiction to entertain this Petition and to grant the relief
requested by virtue of Article 6, Section 9 of the Constitution of the State of Arizona
and Rules 7 and 8 of the Procedure for Special Actions.
II.
Petitioner Jodi Ann Arias is the Defendant in Maricopa County Superior Court
Case No. CR2008-031021-001 DT.  The trial began on December 10, 2012.
III.
The Honorable Sherry Stephens is now, and was at all times material to this
matter, a duly qualified and acting Judge for Maricopa County Superior Court of the
State of Arizona.
IV.
Petitioner is charged with First Degree Murder.  The State seeks the death
penalty.   The trial court has denied Petitioner’s request to stay the trial.  The case has
not yet been sent to the jury for their determination on whether Petitioner is not guilty
or guilty of first degree murder, however, the State has completed presentation of its 3
case-in-chief.   Should the jury convict Petitioner of First Degree Murder, then the
Aggravation Trial will start immediately.  Petitioner is requesting that this Court stay
the aggravation trial on the sole capital aggravator until the legal issues raised in the
Petition are resolved.
1
V.
This is an issue involving perjury to support a probable cause determination on
the single capital aggravator.  There is no other appropriate time and opportunity to
properly and lawfully determine the correctness of Judge Stephens’ denial of
Petitioner’s motion.  The trial court’s denial of Petitioner’s motion to dismiss causes
overwhelming prejudice to Petitioner as she is forced to suffer the jeopardy of a
potential death sentence in a case where a death sentence should not be available.
Such actions violate Petitioner’s right to Due Process and a fair trial under the Fifth
Amendment to the United States Constitution, under Article 2, Section 4 of the
Arizona Constitution, and under the caselaw cited in the Petition.   This matter
requires immediate action to prevent a complete abrogation of her constitutional
rights.  Ms. Arias has no equally plain, speedy and adequate remedy by appeal.  Rule
1(a), Arizona Rules of Procedure for Special Actions.
                                                       
1
The Trial Court denied Petitioner’s Request for Stay on January 14, 2013. See Exhibit 1 Transcript of Hearing. 4
VI.
The legal issues in the Petition cast genuine doubt on the constitutionality of
Judge Stephens’ ruling and its compliance with federal and state law.  The Arizona
Supreme Court has held that special action jurisdiction is appropriate when there is no
other means of obtaining justice on the issue raised. King v. Superior Court, 138 Ariz.
147, 149, 673 P.2d 787, 789 (Ariz. 1983) (citing  Nataros v. Superior Court of
Maricopa County, 113 Ariz. 498, 557 P2d 1055 (Ariz. 1976)).
RESPECTFULLY SUBMITTED this 29th
day of February, 2013.
LAW OFFICES OF L. KIRK NURMI
/S/ L. Kirk Nurmi_____________        
L. Kirk Nurmi
2314 E. Osborn
Phoenix, Arizona 85016
Attorney for PetitionerExhibit 11

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA, )
)
Plaintiff, )
)
vs ) CR2008-031021-001
)
JODI A. ARIAS, )
)
Defendant. )
BEFORE THE HONORABLE SHERRY K. STEPHENS
REPORTER'S TRANSCRIPT OF PROCEEDINGS
Phoenix, Arizona
January 14, 2013
(Original)
By: Lori Fraley
Certified Reporter
AZ CR No: 503311

APPEARANCES:
For the Plaintiff MR. JUAN MARTINEZ
Attorney at Law
For the Defendant MR. KIRK NURMI
Attorney at Law
MS. JENNIFER WILLMOTT
Attorney at Law
BEFORE THE HONORABLE SHERRY K. STEPHENS
*****
Phoenix, Arizona
January 14, 2013
THE COURT: The record will show the
presence of the defendant and all counsel. The jury
is not present.
Counsel, you wanted to speak before we
brought the jury in?
MR. NURMI: Judge, we're requesting a stay.
We had -- a stay of requested proceedings.
If I may approach?
THE COURT: You may.
MR. NURMI: This was e-filed this morning.
This relates to any potential aggravation phase that
may be forthcoming in this trial.
THE COURT: Mr. Martinez.1

MR. MARTINEZ: The State would object to
the request for the stay. There really is no good
reason -- people can give any reason they want, but
there is no good reason to grant the stay.
Additionally, the State -- and I was just
handed this right now, but the State disputes the
factual allegations in the defendant's request for
the stay. He's, I believe, mischaracterizing
Detective Flores's statement and testimony and so I
do not see a reason for the stay.
THE COURT: Mr. Nurmi, anything else?
MR. NURMI: No, Your Honor. We will stand
on the written pleading.
THE COURT: All right. The request for a
stay of proceedings is denied at this time. I
believe that there is adequate time for you to pursue
your remedy before we get to that point in the
proceedings, if we get to that point in the
proceedings.
Anything else?
MR. MARTINEZ: Judge, there was some
coverage, including some printed coverage of this
case over the weekend, and so I would ask that you
inquire of the jurors whether or not they saw
anything and then of course to continue to advise
them of the admonition.


IN THE ARIZONA SUPREME COURT
JODI ANN ARIAS,
                     Defendant-Petitioner,
vs.
HON. SHERRY STEPHENS, JUDGE OF
THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR
THE COUNTY OF MARICOPA,
                      Respondent,
          and
STATE OF ARIZONA, ex rel., WILLIAM
G. MONTGOMERY, MARICOPA
COUNTY ATTORNEY,
            Real Party In Interest.
Arizona Supreme Court No.
______________________
Arizona Court of Appeals
No. 1 CA-CA-13-0026
Maricopa County Superior Court
No. CR2008-031021
PETITION FOR REVIEW
L. Kirk Nurmi, #020900
LAW OFFICES OF L. KIRK NURMI
2314 E. Osborn
Phoenix, Arizona 85016
Tel (602) 285-6947
Email: nurmilaw@gmail.com
Jennifer L. Willmott, #016826
WILLMOTT & ASSOCIATES, PLC
845 N. 6th Avenue
Phoenix, Arizona 85003
Tel (602) 344-0034
Email: jwillmott@willmottlaw.com
Attorneys for Defendant/Petitioner



Introduction
In  Chronis v. Steinle,
1
this Court, recognizing the constitutional
underpinnings of  Rule of Criminal Procedure 13.5, held that a defendant facing
capital allegations has the right to judicial determination of probable cause for the
facts  supporting death penalty claims.
2
    This matter asks whether this right
precedent to a sentence of death, compelled by the United States Constitution and
Arizona Rules of Criminal Procedure, can be mooted by the false and misleading
testimony of the State’s sole witness at the probable cause hearing.
The State alleged  a single aggravator in support of its desire to seek the
death of Defendant Jodi Arias in this matter, namely, the “cruel, heinous, or
depraved” aggravator of  A.R.S.  section 13-751(F)(6).  Following a  Chronis
evidentiary hearing on August 7, 2009 – in which the only witness was the case
agent, Mesa Police Detective Esteban Flores – the trial court found that the State
had failed to establish probable cause for the “heinous or depraved” elements of
the F6 aggravator.  The trial court found that the State had shown probable cause
for only a single aggravating fact, namely, that the murder was “cruel” because of
the “physical and mental suffering of the victim.”
3

                                             
1
220 Ariz. 559, 208 P.3d 210 (2009).
2
Id. at 562, 208 P.3d at 213.
3 Appendix, Exhibit 4, at 2.2
Now, Defendant has discovered that even this single aggravating fact was
based upon false and misleading testimony.  At trial, Detective Flores admitted to
giving false, material testimony in support of the single aggravator at the Chronis
hearing.
Can a defendant be subject to the death penalty based upon  an aggravator
obtained through false testimony?  Can this Court’s requirement for an evidentiary
hearing be mooted by a trial judge who, although not present at the evidentiary
hearing, deems the perjury harmless?  Defendant urges this Court to accept review
of this matter to resolve these critical questions of due process and construction of
Arizona’s Rule 13.5.
Issues Presented for Review
1.     Did the trial court fail to perform a duty required by law by refusing to
dismiss the case or the F6 aggravator that was obtained using perjured testimony?
2.  Can the trial judge, who was not present at the probable cause hearing
mandated by Chronis, deflect her duty required by law to dismiss the case or the
F6 aggravator, by claiming that the perjured testimony used to obtain the single
aggravator was harmless?
Synopsis of Lower Court Rulings
The trial court conducted the Chronis probable cause hearing on August 7,
2009.  On August 18, the trial court ruled, holding that the State failed to establish 3
probable cause to show that the murder involved needless mutilation or gratuitous
violence, or the murder was senseless, or involved a helpless victim. The trial court
found that the State established probable cause for only a single theory underlying
the F6 aggravator: that it involved both the victim’s physical and mental suffering.
Arias’ trial commenced  three years later, on  December 10, 2012, under a
different trial judge.  Following the testimony of the medical examiner, Dr. Kevin
Horn, on January 8, 2013, the misleading nature of Detective Flores’ testimony
became apparent.   Counsel immediately moved for a dismissal of the case or
dismissal of the sole capital aggravator. The trial court denied both requests.
4
Arias petitioned for special action relief from the Court of Appeals on
January 28, 2013.  That Court declined to accept jurisdiction on January 30, 2013.
5

Ms. Arias now seeks review in this Court.
Summary of Relevant Facts
On July 9, 2008,  Defendant was indicted for  first degree murder.
6
On
October 31, 2008, the prosecution filed its Notice of Intent to Seek Death alleging
a single aggravator pursuant to A.R.S. § 13-751(F)(6).
7
On August 7, 2009,  the trial court  held  a Chronis hearing to determine
whether probable cause existed that the murder was committed  in an especially
                                             
4
The trial court’s minute entry ruling is attached as Attachment 1.
5
The Court of Appeals’ order is attached as Attachment 2.
6 Appendix, Exhibit 1.
7 Appendix, Exhibit 2.4
heinous, cruel, or depraved manner.  The prosecution elicited testimony from the
case agent, Detective Flores, to establish  probable cause for the F6 aggravator.
8
Flores testified under oath that he had spoken with the medical  examiner, Dr.
Horn, on the day before the  hearing.
9
The  prosecution used Flores to present
hearsay testimony regarding statements attributed to Dr. Horn.
However, when Detective Flores began to repeat the opinions of Dr. Horn,
defense counsel, Greg Parzych, objected four times in the span of a few questions,
noting that  there was no way to explore the validity or basis of the opinions
presented as hearsay testimony.
10
The following exchange occurred:
The Court:  Anytime that hearsay is admitted, there can be a
foundation question for the declarant  – for the hearsay
declarant. So how is this any different?
Mr. Parzych:  The difference is the hearsay can be admitted if it
is reliable hearsay. I don’t believe it’s reliable hearsay unless
we know the basis of that opinion. If the doctor’s basis of his
opinion is he read through some tarot cards, I assume this Court
would not find that to be reliable hearsay. So I don’t think it’s
reliable and, therefore, it should not come in absent the basis for
that doctor’s opinion.
11
The trial court allowed the hearsay testimony and Detective Flores testified
that Dr. Horn had the following opinions, among others:
                                             
8 Appendix, Exhibit 3, Chronis Hearing Transcript.
9
Id., at 18.
10 Appendix, Exhibit 3, at 23-26.
11
Id., at 25-26.  5
- The bullet wound to the head was the first injury to the victim.
12
- The bullet wound to the head would not incapacitate the
victim.
13
- The cut across the throat was the last injury sustained.
14
- The victim regained consciousness at some point during the
attack.
15
Detective Flores did not simply repeat the opinions of Dr. Horn, he gave
explanations for the basis of those opinions as relayed to him by Dr. Horn. The
prosecution fully adopted the testimony of Detective Flores, at one point stating:
“The State’s position is that the victim, Travis Alexander, was initially shot
through the right side of the head while he sat in the shower.”
16
The sequence of
the injuries, and the victim’s state of consciousness were, and remain, critical
issues in questions of culpability and aggravation.
Following  the  Chronis hearing, the trial court found probable cause to
support a single aggravator of cruelty under section 13-751(F)(6); notably, the trial
court found probable cause for only one of the four theories advanced by the
State.
17
                                             
12
Id. at 36-37.
13
Id.
14
Id. at 31.
15
Id. at p. 37.
16
Id.
17 Appendix, Exhibit 4, 8/18/2009 Minute Entry.6
At trial, the prosecution called Dr. Horn to give his opinions to the jury.
18
Dr. Horn’s testimony differed dramatically from what Detective Flores had told the
trial court in the  Chronis hearing. Contrary to Detective Flores’ testimony, Dr.
Horn testified that he had no recollection of speaking with Detective Flores about
the injuries.
19
Dr. Horn testified that the victim had three fatal injuries, the chest
stab-wound, the throat cut, and the bullet wound to the head.
20
Dr. Horn did not
remember ever telling Detective Flores that the gunshot wound was the first injury
to the victim, noting  that such an opinion, attributed to him by Flores, was
inconsistent with the evidence.
21
Dr. Horn testified that the gunshot wound to the
head was immediately incapacitating.
22
Dr. Horn further testified that, of the three
fatal injuries, the stab to the chest was first.
23
Dr. Horn opined that the victim was
alive for the throat cut, and may not have been alive for the gunshot wound to the
head.
24
In comparing  Dr. Horn’s opinions at trial with the hearsay testimony of
Detective Flores at the Chronis hearing, it became clear that Dr. Horn’s opinions
were dramatically different from what Detective Flores had stated under oath.
                                             
18 Appendix, Exhibit 5, Horn Testimony 1/8/2013.
19
Id., at 60, 85-86,
20
Id. at 53.
21
Id. at 88.
22
Id. at 51-52; 88-89.
23
Id. at 56-57.
24
Id. at 56-57.  7
- The gunshot to the head was either not incapacitating or
immediately incapacitating.
- The gunshot wound was either the first injury to the victim or
the last injury to the victim.
- The throat cut to the victim was either the last injury to the
victim or came before the gunshot.
- The victim either was conscious after the gunshot injury or was
already dead at the time of the gunshot.
All of these mutually exclusive statements were either directly from Dr. Horn, or
were directly attributed to him by Detective Flores. They cannot be  reconciled.
They are also highly material to proving the aggravator, as the timing and sequence
of injuries directly impacts the time period over which any physical or mental
suffering could occur, as well as whether the victim was unconscious.
Faced with these impossible statements,  defense  counsel  questioned
Detective Flores about these dramatic differences.
25
  Despite Dr. Horn’s testimony,
Flores  reiterated  that he had spoken with Dr. Horn the day before the  Chronis
hearing, although he conceded it was a “short” conversation.
26
Detective Flores
confirmed  his testimony at  the  Chronis hearing, but then explained  the
contradictions by saying that he misunderstood Dr. Horn.
27
                                             
25 Appendix, Exhibit 6, 1/10/13 Flores Testimony.
26
Id., at 17-18.
27
Id. at 23.8
Defense counsel asked point-blank if Detective Flores had substituted his
own judgment for Dr. Horn’s opinion, but Flores claimed that the differences were
based on a misunderstanding.
28
After  defense counsel questioned Detective Flores, the  prosecution
questioned Detective Flores about his testimony at the Chronis hearing. The most
compelling part of that testimony came at the end, when the  prosecution asked
Flores about the basis for his testimony at the Chronis hearing.
Q.  Did he [Dr. Horn] every (sic) write anything to you, giving you
the sequence of events?
A.  No, he never did.
Q.  Did you ever see anything written by him indicating anything
of a sequence of events?
A.  No.
Q.  The bottom line, that information that you gave, whose opinion
was it, was yours (sic) or Dr. Horn’s?
A.  It was my opinion.
29
   Finally, the explanation for the differences in Dr. Horn’s  testimony.
Detective Flores’ testimony at the Chronis hearing was false. He had not testified
as to Dr. Horn’s opinions, he had testified as to his own opinions, claiming that
                                             
28
Id. at 28, 29, 30-31.
29 Appendix, Exhibit 6, at 38.  9
they were Dr. Horn’s opinions. He admitted to perjuring himself to get the trial
court to find the F6 aggravator.
Upon the detective’s confession of perjury,  defense counsel immediately
moved for a dismissal of the case or a dismissal of the sole aggravator. The trial
court denied both requests from the bench, providing a written ruling dated January
10, 2013.
30
Why This Court Should Grant Review
1. This Court Should Accept Review To Establish That The
Remedy For Perjurious Testimony In A  Chronis Hearing
Should Be,  At A  Minimum,  The Striking  Of The  Death
Penalty Allegations.
In  Jones v. United States,
31
-- the first of a trilogy of cases ultimately
resulting in the Supreme Court’s rejection of the Arizona death penalty scheme at
the time
32
-- the Supreme Court declared:  “[U]nder the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment,
any fact (other than prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt.”
33
  In keeping with the due process principles from these cases,
this Court amended Rule 13.5 to clarify that the notice of intent to seek the death
                                             
30 Appendix, Exhibit 7, 1/10/13 Minute Entry.
31
526 U.S. 227 (1999).
32
Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466
(2000).
33
Jones, 526 U.S. at 243 n. 6.10
penalty was considered an “amendment” to the charging document.
34
  Further, in
Chronis, this Court reinforced Rule 13.5’s conformance to the required
constitutional protections by holding that a defendant had the right to demand that
the State demonstrate probable cause for the death-qualifying aggravators.
The  Chronis procedure is compelled by the constitutional guarantees
specified by the  Jones Court:  due  process and the notice and jury trial
requirements of the Sixth Amendment.  Here, however, this entire procedure was
tainted by the misleading testimony of the State’s sole witness.  Hence, Arias urges
this Court to clarify the remedy when the constitutionally-mandated  Chronis
proceeding is tainted by materially false testimony.
The seminal case in this regard is  United States v. Basurto.
35
There,  a
witness before the grand jury presented perjured testimony. The prosecutor did not
know of the perjury at the time, but learned of the perjury prior to trial. The
prosecutor notified defense counsel of the perjury but took no corrective actions.
Subsequently, the Ninth Circuit overturned the conviction:
We hold that the Due Process Clause of the Fifth Amendment is
violated when a defendant has to stand trial on an indictment which
the government knows is based partially on perjured testimony, when
the perjured testimony is material, and when jeopardy has not
                                             
34 Ariz.R.Crim.P. 13.5(c).
35
497 F.2d 781 (9th Cir. 1974).  Basurto has been cited with approval in
several Arizona appellate decisions, including Escobar v. Superior Court of State
of Ariz. In & For Maricopa County, 155 Ariz. 298, 301, 746 P.2d 39, 42 (App.
1987); State v. Gortarez, 141 Ariz. 254, 258, 686 P.2d 1224, 1228 (1984).11
attached.  Whenever the prosecutor learns of any perjury committed
before the grand jury, he is under a duty to immediately inform the
court and opposing counsel — and, if the perjury may be material,
also the grand jury — in order that appropriate action may be taken.
36
Following Basurto, the Arizona Court of Appeals addressed the issue of
misleading testimony used to obtain a finding of probable cause in  Nelson v.
Boylston.
37
Although the long line of cases quoted in  Basurto have as their
foundation the use of perjured testimony, we note that it is not the fact
that the testimony is perjurious but rather that evidence, whether
intentionally or unintentionally false, has been presented to the trier of
fact and is used as a basis for finding probable cause. The defendant
has no effective means of cross examining or rebutting the testimony
given before a grand jury.
38
The normal remedy for perjured or misleading testimony in front of the
grand jury has been to remand the case for a new determination of probable
cause.
39
   In almost every case, a defendant must seek special action review of a
denial of a motion for remand before trial.
40
However, as the  Moody Court
recognized, there is a key exception to that rule.
That one exception to the rule occurs “when a defendant has had to
stand trial on an indictment which the government knew was based
partially on perjured, material testimony.” State v. Gortarez, 141
                                             
36
Id. at 785-786.
37
137 Ariz. 272, 669 P.2d 1349 (App. 1983).
38
Id. at 277, 669 P.2d at 1354.
39 Maretick v. Jarret, 204 Ariz. 194, 198, 62 P.3d 120, 124 (2003).
40
State v. Moody, 208 Ariz. 424, 439-440, 94 P.3d 1119, 1134-35 (2004).12
Ariz. 254, 258, 686 P.2d 1224, 1228 (1984) (citing United States v.
Basurto, 497 F.2d 781 (9th Cir.1974)).
41
The  Gortarez/Moody exception applies here.  Detective Flores misled the
trial court throughout his Chronis testimony.  He let the trial court believe that he
had a substantive discussion with Dr. Horn, and that he was passing along Horn’s
professional pathology opinions.  In fact, Flores was willing to mislead the court in
an effort to transmogrify the matter into a capital case.  The entire  Chronis
procedure was fatally flawed, and the proper remedy, if not dismissal of the entire
case, is the striking of the State’s notice of intent to seek the death penalty.
2. The Taint Of The Perjured Testimony Cannot Be Cured
Years Later By Trial Testimony Unrelated To The Issue Of
Probable Cause For The Death Penalty Aggravator.
In denying Arias’ motion for mistrial or to strike the capital aggravator, the
trial court did not dispute Flores’ misleading testimony.   However, according to
Judge Stephens, the perjured testimony by Detective Flores that permeated the
Chronis hearing would not have influenced the judge conducting the probable
cause hearing,
42
and the medical examiner’s testimony at trial demonstrated the
existence of the State’s single theory supporting its request for the death penalty.
43
For multiple reasons, Arias urges this Court to reject the trial court’s afterthe-fact reconsideration of probable cause.   First, this after-the-fact justification
                                             
41
Id.
42 Appendix, Exhibit 7, 1/10/13 Minute Entry, at p. 6.
43
Id. at pp. 6-7.13
encourages false testimony in Chronis hearings and undermines the entire process.
Courts throughout the country have uniformly condemned such conduct.  An  en
banc panel of the Ninth Circuit held that there is “a clearly established
constitutional due process right not to be subjected to criminal charges on the basis
of false evidence that was deliberately fabricated by the government.”
44
    The
concept that perjured testimony would be acceptable in a capital case is
unthinkable.  As Justice Bales recently noted:
The imposition of the death penalty is serious and permanent; any
mistake cannot be undone once the punishment is carried out.
Reflected throughout the Supreme Court jurisprudence underlying the
Eighth Amendment is the principle that death is different.
45
“Knowing use of perjured or false testimony by the prosecution is a denial of due
process and is reversible error without the necessity of a showing of prejudice to
the defendant.”
46
  This rule should apply with even greater rigor in capital cases.
The importance of the Chronis hearing cannot be understated.  As the United
States Supreme Court and other courts throughout the country have observed, the
death penalty is not only “different,” but also “special” in that it is reserved  only
for the most heinous of murders.  Again, the Ninth Circuit has stated:
                                             
44 Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc); see
also Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004).
45
State v. Grell, 212 Ariz. 516, 534 (2006) (Bales, J., concurring in part and
dissenting in part; quotation omitted), cert. denied, 550 U.S. 437 (2007).
46
State v. Ferrari, 112 Ariz. 324, 334, 541 P.2d 921, 931 (1975).14
The Eighth Amendment requires that jury instructions in the penalty
phase of a capital case sufficiently channel the jury's discretion to
permit it to make a principled distinction between the subset of
murders for which a death sentence is appropriate and the majority of
murders for which it is not.  When a jury is given an aggravatingcircumstance instruction that would support the imposition of the
death penalty, that instruction  “must genuinely narrow the class of
persons eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to
others found guilty of murder.”
47
   This was the trial court’s task at the evidentiary hearing on August 7, 2009.
It had to determine whether the State had established probable cause to believe this
particular murder was sufficiently “extraordinary” to warrant  eligibility for   the
death penalty.  The State had alleged only a single aggravator (cruel, heinous or
depraved), and within this aggravator, the trial court  – even with the perjured
testimony – found probable cause for only one of the four sub-theories advanced
by the State.  Obviously, whether the State could prove the existence of cruelty in
this case  was a close call, too close to claim that the perjured testimony was
harmless.
Finally, the use of trial testimony as a substitute for a fair presentation of the
evidence at the  Chronis  hearing disregards the numerous procedural issues that
such a result necessarily entails.  Judge Stephens relied upon Dr. Horn’s trial
testimony to conclude that the perjured testimony at the  Chronis hearing was
                                             
47
Valerio v. Crawford, 306 F.3d 742, 750-751 (9th Cir. 2002) (en banc)
(quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)), cert. denied, 538 U.S. 994
(2003)).15
harmless.  However, Dr. Horn was called during the liability phase of the trial on
the merits; the purpose of his testimony was not to establish probable cause for the
F6 aggravator.  Testimony in the liability portion of a trial cannot and should not
be a substitute for truthful testimony at a probable cause hearing.
Conclusion
We only have to look at recent history in Arizona to see the grim potential
for error in death penalty trials. The wrongful conviction of any person is a horrible
miscarriage of justice, but wrongfully sentencing a person to the death penalty is
truly hideous.  Likewise, perjury in any case is a serious wrong, but perjury to
support the single aggravator in a death penalty case is unconscionable.  The case
agent  admitted that he perjured himself when he testified in support of the only
capital aggravator in this case. The perjury was, and remains, material to the
aggravator.  Thus, for the reasons set forth herein, Defendant Jodi Arias
respectfully requests that this Court accept  jurisdiction  of this matter and grant
relief accordingly.
RESPECTFULLY SUBMITTED this 20
th
day of February, 2013.
By /s/ L. Kirk Nurmi_____________
L. Kirk Nurmi
Attorney for PetitionerATTACHMENT 1Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/15/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008-031021-001 DT 01/10/2013
Docket Code 012 Form R012 Page 1
CLERK OF THE COURT
HON. SHERRY K. STEPHENS C. McCain
Deputy
STATE OF ARIZONA JUAN M MARTINEZ
v.
JODI ANN ARIAS (001) KIRK NURMI
JENNIFER L WILLMOTT
TRIAL MINUTE ENTRY
DAY 12
Courtroom SCT5C
State's Attorney: Juan Martinez
Defendant's Attorney: Kirk Nurmi and Jennifer Willmott
Defendant: Present
Court Reporter, Mike Babicky, is present.
A record of the proceeding is also made by audio and/or videotape.
Prior to the start of Trial, State’s Exhibit #237 is split and State’s Exhibit #’s 317 thru 320
are marked for identification.
10:36 a.m. Trial to Jury continues from 01/10/2013.
The jury is present.
Special Agent Nathan Mendes is sworn and testifies.SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008-031021-001 DT 01/10/2013
Docket Code 012 Form R012 Page 2
LET THE RECORD REFLECT the witness makes an in court identification of the
Defendant.
Exhibit # 245 is received in evidence.
The witness testifies further.
Exhibit #’s 317 thru 320 are received in evidence.
The witness testifies further.
Exhibit #’s 237.001 thru 237.022 are received in evidence.
The witness testifies further.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
The witness testifies further.
The witness steps down.
Lisa Perry is sworn and testifies.
11:57 a.m. The Jury is reminded of the admonition and stand in recess. Court remains in
session.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the Court and on the record.
12:00 p.m. Court stands in recess until 1:30 p.m.
1:29 p.m. Court reconvenes with Defendant and respective counsel present.
Court Reporter, Mike Babicky, is present.
The Jury is present.
The witness testifies further.SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008-031021-001 DT 01/10/2013
Docket Code 012 Form R012 Page 3
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
The witness testifies further.
State’s Exhibit # 321 is marked for identification.
The witness testifies further.
LET THE RECORD REFLECT Juror Questions have been received by the Court; same
are discussed with Counsel out of hearing of the jury, and the Court addresses the witness
regarding the issues.
FILED:  Juror Questions
The witness steps down.
Detective Esteban Flores having been previously sworn testifies further.
Exhibit # 295 is offered in evidence.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
Exhibit # 295 is received in evidence.
The witness testifies further.
Exhibit #’s 247 and 248 are offered in evidence.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
Exhibit #’s 247 and 248 are received in evidence.
The witness testifies further.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008-031021-001 DT 01/10/2013
Docket Code 012 Form R012 Page 4
The witness testifies further.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
The witness testifies further.
2:53 p.m. The Jury is reminded of the admonition and Court stands in recess.
3:12 p.m. Court reconvenes with Defendant and respective counsel present.
Court Reporter, Mike Babicky, is present.
The Jury is present.
The witness testifies further.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
The witness testifies further.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
The witness testifies further.
LET THE RECORD REFLECT Counsel approach the bench and discussion is held out
of the hearing of the jury and on the record.
The witness steps down.
Jodi Legg is sworn and testifies.
State’s Exhibit # 322 is marked for identification.
The witness steps down.SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008-031021-001 DT 01/10/2013
Docket Code 012 Form R012 Page 5
3:43 p.m. The Jury is reminded of the admonition and stand in recess until 01/14/2013 at
10:30 a.m. in this division. Court remains in session.
3:48 p.m. Court convenes in judicial chambers with Defendant and respective Counsel
present.
Court Reporter, Mike Babicky, is present.
Discussion is held regarding the security belt the Defendant is required to wear by
MCSO.
Counsel for the Defendant objects to the matter being discussed in chambers and requests
to argue in the Court room before the media.
The Court grants the Defendant’s request to return to the court room.
3:55 p.m. Court reconvenes back in the court room with Defendant and respective
Counsel present.
Court Reporter, Mike Babicky, is present.
Argument is presented on Defendant’s Motion for Mistrial and Motion for New Probable
Cause Hearing.
The Court finds the Defendant’s Motions are not timely filed however, even if they had
been timely filed the Court finds the testimony of Detective Flores would not have changed
Judge Duncan’s Ruling in 2009.
IT IS ORDERED denying the Motion for Mistrial and the Motion for New Probable
Cause Hearing.
Counsel for the Defendant requests Exhibit #’s 288 and 289 be admitted in evidence for
purposes of this hearing only.
IT IS ORDERED Exhibit #’s 288 and 289 are admitted in evidence for purposes of this
hearing only.
4:23 p.m. Court stands in recess until 01/14/2013 at 10:30 a.m. in this division.SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008-031021-001 DT 01/10/2013
Docket Code 012 Form R012 Page 6
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
LATER:
The court has considered the defendant’s oral motion for new finding of probable cause
on the aggravating factor that the offense was especially cruel, the minute entry ruling of the
court dated August 18, 2009, the testimony of Kevin Horn on January 9, 2012, the testimony of
Detective Esteban Flores on January 10, 2012, and the oral argument of counsel on January 11,
2012.
The court finds the motion for a new finding of probable cause on the aggravating factor
is not timely. Defense counsel learned approximately one year ago that the testimony of
Detective Flores at the hearing held on August 7, 2009 was inconsistent with the testimony of the
medical examiner Kevin Horn. The inconsistency relates to the sequence of the wounds inflicted
on the victim on June 4, 2008. A motion for a new finding of probable cause should have been
filed no later than 20 days prior to trial. Rule 16, Arizona Rules of Criminal Procedure. Also see
Chronis v. Steinle, 208 P.3d 210 (2009), and Rules 13.5 and Rule 5, Arizona Rules of Criminal
Procedure.
The court further finds that, even if timely filed, the motion for new finding of probable
cause should be denied. The court finds the evidence relating to the sequence of the wounds was
not material to the issue of whether there was probable cause to believe the offense was
especially cruel under the theory the crime involved both physical and mental suffering of the
victim. See minute entry dated August 18, 2009. The court’s findings in August 2009 support
that court’s determination the victim suffered both physically and mentally regardless of when
the wounds were inflicted, and that the defendant knew or should have known that the victim
would suffer. In its ruling, the court noted the victim was stabbed 27 times, had defensive
wounds from grabbing the knife and was shot on the right side of his head. The bullet lodged in
the victim’s left cheek. The defendant told police the victim was unconscious after being shot but
crawled around and was stabbed. Based upon these facts, the court concluded the victim would
have felt pain and mental anguish associated with the multiple wounds. The court finds the
inaccurate testimony of Detective Flores at the hearing on August 7, 2009 would not have
changed the court’s finding that the offense was especially cruel and was thus harmless error.
See Pitts v. Adams, 179 Ariz. 108, 876 P.2d 1143 (1994).
The court further finds that the evidence presented at trial in January 2012, including the
testimony of Kevin Horn on January 9, 2012, established probable cause to believe the offense
was especially cruel under the theory that it involved both physical and mental suffering of the SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2008-031021-001 DT 01/10/2013
Docket Code 012 Form R012 Page 7
victim. The court finds this evidence established probable cause the victim would have felt pain
and mental anguish associated with the multiple wounds inflicted, and the defendant knew or
should have known that the victim would suffer. See State v. McCray, 218 Ariz. 252, 259, 183
P.3d 503 (2008), State v. Sansing, 206 Ariz. 232, 235, 77 P.3d 30 (2003) and State v. William
Herrera Jr., 176 Ariz. 21, 859 P.2d 131 (1993).
IT IS ORDERED denying the oral motion for new finding of probable cause on the
aggravating factor the offense was especially cruel.
IT IS FURTHER ORDERED denying the motion for mistrial based upon the inaccurate
testimony of Detective Flores at the hearing conducted on August 7, 2009.