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Legally Speaking: The Jodi Arias evidentiary hearing is over and very little should change

Is Jodi Arias going to be another Debra Milke?

Will she soon see the world as a free woman?

If you would have asked me that question two months ago I would have said no. Ask me a month ago and I would have said maybe. Ask me now and I say not a chance.

Two months ago the retrial of Arias was slowly trudging along when out of the blue the defense filed a motion alleging that thousands of porn files were deleted off of the victim’s, Travis Alexander’s, computer.

The defense alleged that not only were the files deleted but they were deleted by the State, deliberately.

This was a bombshell because if it was true, then it would be within Judge Sherry Stephens’ power to take the death penalty off the table — or even dismiss the entire case.

Prosecutor Juan Martinez came back swinging and responded that it was Arias’ own defense team that deleted the files. This resulted in a long evidentiary hearing that lasted four days spread over several weeks outside the hearing of the jury.

Several witnesses testified about the condition and contents of Alexander’s computer after his death. The defense’s expert witness, Bryan Neumeister, claimed there was so much porn on the computer the State’s experts had to be inept to not have discovered the files. In fact, Neumeister testified this issue wasn’t the elephant in the room it was the aircraft carrier in the room.

For some background, in the first trial, the State’s own computer expert testified there were no porn files on the computer. This went a long way to support Martinez’s argument that Arias was a liar, and since her experts relied on her words they were essentially liars too.

Well, if there was porn on the computer then she wasn’t lying. About that anyway.

After the last witness testified in the evidentiary hearing, it seemed clear to me there was, in fact, pornographic files on Alexander’s computer. I didn’t reach this conclusion because I am a genius, no, it was clear to me because the State’s computer expert said there was.

Yes, this was a different computer expert than the one that said those files did not exist.

The defense was successful in proving Detective Esteban Flores may not have followed proper protocol when he “woke up” the computer at the crime scene and when he turned on that same computer during an evidence viewing with Arias’ previous defense attorneys.

Successful in proving negligence — yes, successful in proving intentional misconduct — no.

Now what?

Judge Stephens took the motion “under advisement.” This means she will issue her ruling at a later date.

In my opinion, in order to rule on the motion she needs to address and answer the following questions:

1) Were there pornographic files on the computer?

2) Were those files deleted?

3) If so, who deleted them?

4) Was it intentional or not?

5) And lastly, what sanction is appropriate?

To be clear, this hearing and motion was not about Arias’ guilt or innocence.

She admitted, and the evidence clearly showed, that she brutally killed Alexander. This motion was about the most recent allegation of prosecutorial misconduct and the plethora of similar allegations made by the defense.

In his closing argument, defense attorney Kirk Nurmi reviewed all the previous allegations of prosecutorial misconduct to persuade the Judge Stephens to, at a minimum, take death off the table and at the most, dismiss the entire case.

Prosecutorial misconduct is at the forefront of the minds of trial watchers and the parties in this case in light of the Arizona Court of Appeals decision dismissing the case against Milke.

Although Nurmi made a valiant and good faith effort, and succeeded in some respects, I don’t believe and I don’t think Judge Stephens will find any action of Martinez or law enforcement that has risen to the level the appellate courts found existed in the Milke case.

As such, the retrial will continue.