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Legally Speaking: Should Jodi Arias go free or should Judge Sherry Stephens hold the course?

LISTEN: Jodi Arias' Re-Trial Testimony

A lot has been said and written about Maricopa County Superior Court Judge Sherry Stephens, who is at the helm of the State v. Jodi Arias trial.

There have been insults and jabs, criticisms and compliments, but if you were in her shoes, would you do things differently?

Could you?

Stephens has before her a lengthy and involved motion to dismiss filed by Arias’ defense team. Last week, she announced she would have a ruling by Monday of this week, however, during trial on Monday, the defense asked her to consider additional evidence and hold off on making her ruling. She agreed and, as such, we will have to continue to wait to see if she dismisses the entire case, takes death off the table or denies it outright.

You might be frustrated, like I am sometimes, with the case and the speed at which it progresses. You might be upset by the delays and by the perceived indulgences the judge gives the defense. If so, ask yourself this question: Could you do any better?

The days of the Arias trial have formed an intricate web of issues, surprises, delays and legal quagmires that the parties and the judge have to wade through, almost daily. Add the involvement of the media, the Court of Appeals and the Supreme Court, and you have an entity that has surpassed what even the biggest thinkers could have dreamed up. This trial has taken on a life of its own.

With that being said, if you were Stephens presiding over the State v. Jodi Arias case, what would you do? Knowing that you, along with the parties and the victims, have lived and breathed this case since at least December 2012, when the first jury was selected (others since June 2008). Would you make the call to dismiss it?

Would you, after hearing all the testimony, deciding all the motions, and being the subject of ridicule for years, take death off the table?

Probably not. Though I suggest the question is not “would you” but rather “should you.”

Stephens has been confronted with multiple motions to dismiss filed by the defense, both in writing and made in court. She has read the pleadings, heard the testimony, listened to the arguments and read the case law. Most, if not all, the motions have a central theme of prosecutorial misconduct that build on each other. Prosecutorial misconduct has been in Arizona’s headlines lately with the dismissal of the State v. Debra Milke case.

The latest motion to dismiss on Stephen’s plate contains a litany of allegations of prosecutorial misconduct including:

• The failure to disclose exculpatory evidence (the evidence of hundreds of text messages and emails) and even denying that it existed;

• Failure to timely disclose the witnesses the state was planning to use at trial;

• The harassment of witnesses and counsel (the insults Juan Martinez hurled at Jennifer Willmott) during trial and the continued harassment of potential mitigation witnesses;

• The treatment of Jodi Arias and her defense team by the Maricopa County Sheriff’s Office;

• The disclosing of sealed information by the lead detective’s wife;

• MCSO’s public reaction to the fake filing (re: Nancy Grace and Sheriff Joe) in April 2014;

• The failure to disclose evidence of porn on Travis Alexander’s hard drive;

• The testimony of the state’s witnesses that there was no evidence of porn.

The motion appears to be never-ending. It is a continuous motion, that even when denied, is raised again in its entirety whenever a new allegation presents itself.

Then, after days of hearings on the matter, the Court of Appeals ordered that Jodi Arias could not testify in secret. This added to the defense argument that the case should be dismissed because Arias cannot present a full and complete mitigation case.

Then came the issue that a number of potential defense witnesses will not testify because they do not want to do so in public.

Then came the admission by the state that it did not turn over more evidence.

As you can see, there are many reasons to dismiss the case from the defense perspective and I predict there will be more added before the case is over.

Now, if you were Stephens, confronted with all these allegations and case law that may support them, would you simply say that these allegations do not matter because, after all, Arias brutally murdered Travis Alexander? Would you be of the opinion that the prosecutor and law enforcement are entitled to do anything because the defendant killed someone?

Maybe you would think and feel this way, but Stephens doesn’t have that luxury. She has to take the facts and the law into consideration. She has to weigh the defense arguments and the state’s actions against the case law and the rules. Even if she doesn’t want to grant the motion to dismiss, she is being confronted with a mountain of allegations that may turn the tide from would, to should, to must.

Would you, if you were Stephens, be able to make the hard call if that was what the law required you to do so?

In reality, my prediction is that she will deny the most current motion as she has done with all the previous motions to dismiss and let the appeals process take over.

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