Legally Speaking: Court says public can watch Jodi Arias testify

The Arizona Court of Appeals said it loud and proud: Judge Sherry Stephens was wrong when she excluded the public and the media from the courtroom when convicted murderer Jodi Arias testified.

The seven-page opinion was released Tuesday for the events that occurred back on Oct. 30.

It started like any other trial day in the State v. Jodi Arias case; quiet when, without any warning to the audience, Stephens announced “the next witness will not testify unless these proceedings are closed to the public.”

The public was ushered out of the courtroom and not allowed to return. To make matters more confusing, the court would not identify the witness. It was later learned it was Arias herself who was testifying.

Apparently, just prior to Stephens’ announcement, the parties were in chambers arguing over whether the courtroom should be closed for the testimony.

The defense argued Arias’ testimony was essential to the mitigation of her case and she “would not testify because the media coverage of her testimony would affect her ability to think and answer questions in a manner “she truly means.”

Specifically, counsel stated that Arias was receiving threatening mail, including death threats, and as a result, Arias did not feel that she would be “able to fully communicate what she wants to say, communicate her remorse and go through all the mitigating factors and get them out there in front of the jury with the public here.”

Stephens found the defense’s argument persuasive and granted the motion to remove the public and the media from the courtroom. This resulted in the media outlets asking the Court of Appeals to get involved.

As I explained back on Nov. 2, there is an Arizona Criminal Rule of Procedure, 9.3b, that deals directly with spectators. This rule states:

“b. Spectators. 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.”

By its orders and rulings, the Arizona Supreme Court has further supported this rule and stated there are certain times that the public and the media can be excluded from a criminal trial.

It has ruled that if the circumstances “establish a clear and present danger that the judicial process will be subverted by an open hearing,’ in which case ‘appropriate action should be taken by a court to preserve judicial integrity.”

In other words, the trial court does have the power to close a courtroom but the reason for doing so must be incredibly strong and sound.

Although Stephens found this standard had been met by the defense, the Court of Appeals disagreed.

“Because we find no clear and present danger, we accept special action jurisdiction and grant relief by vacating the ruling of October 30, 2014, closing the penalty phase of the trial to the press and public.”

In light of this ruling, the defense has a choice: Arias can accept the ruling and understand that, if she continues her testimony, the public and the media are entitled to watch or she can appeal this ruling to the Arizona Supreme Court.

I think it is likely an appeal will be forthcoming. This is too important an issue to the defense to let it go.

One last thing to remember: The court still has the option of forcing the media and the public into an overflow room to watch the testimony. Will the media like this? No. Is it better than being kicked out? Yes.

At the end of the day, I predict that we will be ushered into the overflow room if Arias chooses to continue her testimony.