The Jodi Arias Death Penalty Retrial: A Juror’s Perspective
by The 13th Juror MD
“MALFEASANCE AND THE KILLER NINJAS”
“Detective Flores,” Judge Stevens said to him as he was walking to the witness stand, “You are still under oath. Do you understand?”
He answered in the affirmative and walked up to the witness stand while the Jury waited patiently. He was wearing a gray suit with a dark pink tie over a beige colored shirt. He made himself comfortable and rested his hands in his lap after adjusting the microphone to his level.
Jennifer Willmott stood behind a wood pine colored podium wearing calf high leather boots, black skirt and a bright, fuchsia top. Her hands grasped the side of the podium as if she was keeping it steady, her fingers lightly wrapped around the sides. Every once in while she would raise one hand to make a point but always returned them to their original position. I thought it curious that she was behind the podium as if to say she had something to fear from the mild mannered Detective Flores.
“Were you the lead Detective in this case?” Willmott asked.
“You were with the Mesa Police Department?” I can see her shiny hair from the back. It always seems to fall on her shoulders perfectly.
“Yes, Ma’am,” he answered pleasantly. “I still am.”
“You were the case agent, weren’t you?”
“Would I be correct in saying that you controlled the investigation?” she asked.
“What do you do now, Mr. Flores? Are you still a Detective?”
“I am the Public Information Officer for the Mesa Police Department.” He answered calmly. His hands rested easily in his lap.
“I see,” she said. She looked at her legal pad. “How long have you been with the Mesa Police Department?”
Jennifer Willmott looked down at her notes and looked back at him. “Are you familiar with the Mesa Police Department’s Policy and Procedures?”
“So, you should be very familiar with policy and procedure after twenty one years on the force, right?”
“I would like to think so.”
“Did you discover Travis Alexander’s body on June 9, 2008?”
“I assume the scene was cordoned off?”
“Yes, it was.”
“There were no civilians on the scene?”
“Once the roommates were off the premises, there were no civilians on the scene.”
“So, you were making sure all evidence remained intact?”
“At this point, no one is allowed in but Officers,” Flores explained. “We go through great efforts to control contamination of the scene.”
“Did you create a crime scene log of all people who go in and out of the crime scene?”
“Protecting evidence is of the utmost importance to you, isn’t it?” Willmott queried.
“You make sure that nothing is tampered with, don’t you?” she asked.
“Absolutely,” he answered confidently. “We do everything we can. Processing did not start until June 10, 2008. Every crime scene has some contamination and we do what we can to prevent that by creating crime scene logs, documenting evidence and taking photos so we can capture the scene as close as it was to its first contact.”
“Would you say that policies and procedures for a crime scene investigation were long in place on June 10, 2008?”
“There was a log and we had an Officer stationed in front of the residence,” Flores answered.
“There was all sorts of evidence to be processed, wasn’t there? Evidence such as biological and forensics had to be logged?”
“Yes, certainly. There is a lot going on at a crime scene and the best we can do is keep control of it and document it carefully.”
“Computer evidence is logged in, as well, I assume?”
“It is evidence and it is logged after being photographed in its original position.”
Jennifer Willmott dug for some papers under her legal pad. She marched up to the witness stand while saying, “May I approach, your Honor?”
“You may,” Judge Stevens responded.
Willmott handed Flores a stack of papers which I assumed to be the Mesa Police Department’s Policy and Procedure Manual. She strutted back to her perch behind the pine podium.
“How often does the Department review its procedures?” she asked.
“I don’t know,” he answered hesitantly. “I’m sure it varies.”
“So, Mr. Flores, you can’t tell me if it’s every month or every year?”
“Not really,” he said.
“I thought you had fifteen years on the force and you cannot tell me when policies and procedures are updated? What was the policy for computer evidence in 2008?”
“I am not sure. The normal procedure is to call computer forensics to handle these issues.”
“Did you know not to turn it on or off?” she asked.
“Yes, I knew that much.”
“When you arrived on June 10, 2008, did you see a laptop in Travis Alexander’s office: A Compaq Presario with a Toshiba Hard Drive? The same that John Smith spoke of?”
“I did,” Flores answered.
“Let me ask you this. Did you, with a pen, touch this laptop?”
“I did. It was in sleep mode. It came on.”
“The screen came on,” she repeated. “Did you call computer forensics immediately to tell them what happened?”
“No, I did not. I put it in my report that it was not turned on or off but was awakened when I touched the keyboard with my pen. At that time, though, we were under the impression that it was two masked killers we were looking for or something to that effect. The crime scene had a different sense of urgency to it.”
Jennifer Willmott looked at him, ignored his comment and then asked pointedly, “Even though you did not call computer forensics, you thought it was okay to turn the computer on?”
“At that time, we thought it was okay to wake it from sleep mode. I did not turn it on or off, which we all knew then.”
“Didn’t you know that files can be modified and over-written when a computer is turned on?”
“Now, I know,” he answered almost sheepishly. “I did not learn about that until a few years ago but in 2009, it was okay according to the policies we had in place back then.”
Again, Jennifer Willmott grabbed some papers from under her legal pad and marched her way up to Flores while getting permission from the Judge. She told him to read the second paragraph down which he obliged while the Court waited.
“You had a conversation with Detective Melendez?” she asked in reference to the document he was holding.
“I did,” Flores answered.
“You told him that it was inadvertently turned off, didn’t you?”
“That’s what he wrote.”
“But,” she said, “you said you thought it was okay to take it out of sleep mode, did you not?”
“We write our reports independently and I did not see that until years later.”
“Why didn’t you have it changed if that wasn’t true?”
“I don’t know,” he answered, with somewhat of a shrug of his shoulders.
“Okay, then. You got to see this computer on June 19, 2009. Am I right?”
“Yes,” he answered. “It was a different defense team.”
“It was a different defense team,” she agreed. “You had an opportunity again to see the computer with the detectives of the case, the prosecuting attorney and the defense team?”
“I did. We looked at it in a secure facility at the Mesa Police Department.”
“You had a person from computer forensics there?” she asked.
“I could not get a hold of them,” he answered. “It was apparently busy and I could not get ahold of anyone.”
“You testified on this, didn’t you?” Willmott asked.
“I testified on it a few days ago.”
“Need I remind you that you are under oath?”
“I am aware of that.”
“There is no mention that you tried to call computer forensics on any report in 2009 but you remembered two weeks ago?” she pursued.
“Yes,” he said.
“You did not remember this six years ago?”
“Who did you call, Mr. Flores?”
“I called three people,” he answered.
“Who did you call?” she asked again.
“I could not tell you. It was six years ago,” he answered at a loss for words.
Willmott set the stage that detectives were in the room with Juan Martinez while the old defense team looked at the computer. “Did you use a “Write Blocker” when you turned it on?” she asked.
Flores responded that he did not even know the existence of a “Write Blocker” until 2014. He said that he did not turn it on but remembered someone at the defense team looking at it.”
“Objection!” Kirk Nurmi said, as he jumped up from his chair.
“Ladies and Gentlemen,” Judge Stevens said, directing her attention toward the Jury. “We’re going to go ahead and take an extended morning break. Please come back in twenty minutes.”
The Court was silent as the Jury filed out by one row at a time. Mr. Flores remained on the stand while Willmott continued questioning without the Jury present.
“Let me ask you, Mr. Flores. Didn’t Juan Martinez ask if there were any nude photos of the Defendant on the laptop?”
“He may have,” Flores answered.
The next ten minutes were spent with Juan Martinez and Jennifer Willmott making a case to the Judge while Flores was on the stand.
Juan Martinez argued that comments are irrelevant including whether or not it hurts the defendant. Random comments have no value. “Should we allow random comments as evidence? What about comments on how horrific the scene was? If we admit one, we admit the other.”
Willmott said that pornography existed in 2009 and Juan Martinez had proved it by asking if there was pornography on the computer. Kurk Nurmi had laid the argument the prior week that the handling of the computer by the prosecution was malfeasance and all of this supported that theory.
Malfeasance is defined as “the performance by a public official of an act that is legally unjustified, harmful or contrary to law: wrongdoing” (Webster Unabridged 1988). Kirk Nurmi had used this word a number of times in various motions that the Jury did not see.
“We ask that the prosecutor be withdrawn from the case and made a witness,” Willmott demanded to Judge Stevens.
Kirk Nurmi stood up and volunteered, “The Jury has a right to know who tampered with the evidence! It was the prosecution and not the defense!”
Just as quickly as it was asked, Judge Stevens said the motion to make the prosecutor a defense witness was denied. Her decision on the death penalty motion to have it removed from the table due to alleged compromised evidence would wait until after John Smith, the Defense computer expert, completed testimony.
The Jury was marched back in.
Jennifer Willmott was back behind the podium with her fingers wrapped around the sides of the podium. “You would make sure that no one tampers with evidence including a laptop, wouldn’t you?”
“Of course,” Flores answered.
“You know that turning on a computer modifies or changes evidence on a computer?”
“Yes, I do. The files would not be ruined, only modified.”
“I call your attention to Exhibit number thirty-two,” Willmott said as she picked up an Arias original journal. “You’re okay if we make a copy of one of these pages and then tear it out, right?”
I could see Flores looking at her with some tension. “That’s not the same thing. That’s destroying original evidence.”
“If I made a copy, wouldn’t that just be modified evidence?”
“No, it would not be modified. It would be destroyed. You’re talking about two different things,” he said with a hint of irritation.
“So you’re saying it is okay not to have computer forensics personnel present in the room when the defense team is looking at computer evidence? You could not have gotten them down there right away?”
“I could not get ahold of them.”
“Then it is okay to modify evidence?” Willmott pushed.
“We can trace back to the original copy on the computer. We can see the path it took and what was modified.”
Jennifer paused for a moment. “No one from computer forensics was there that day, were they?”
“Evidence is never pristine,” Flores answered informatively.
“Did you find any pornography on the laptop?” she asked.
“Yes, we found traces of it in 2014.”
“You found this pornography with your own detectives, right? Detectives from the Mesa Police Department found it, didn’t they?” she accused.
“Yes,” Flores answered. “There was evidence from an Alexa browser that searches were done on June 1, 2008.”
I looked at the family of Travis Alexander who is seated in the front row every day without fail. They do a remarkable job of not showing emotion in Court even though I suspect they want to scream inside. They did not look very comfortable weeding through details that seemed pretty small in comparison to the big scheme of things.
“This report says that a Detective found video pornography on the laptop,” Jennifer Willmott offered as she held up a stack of papers.
Flores shook his head. “I don’t know.”
“I’m finished with this witness,” Jennifer Willmott said as she picked up her legal pad, various papers and sat back at the defense table.
There was a tension between the attorneys that was almost palpable. That tension did not dissipate when Juan Martinez began interrogating the member of the prosecution team. The first thing that one could notice is that Juan Martinez does not show favoritism to anyone. He went after his teammate no less aggression than he had when he attacked Dr. Fonseca, Dr. Geffner and John Smith. He was fast and quick with no deference to personal feelings, affectations or even the kindness of basic pleasantries. He was not here for pleasant conversations and he was not here to walk the Jury by the hand. He went after questions that served truths.
“The door was locked upstairs when you first found the victim, Travis Alexander. Am I right?” Juan asked.
“Yes,” Flores answered.
“The defendant locked the door, didn’t she?” he accused with a wave of the hand toward the defense table.
“Yes, the hallway door was locked upstairs,” Flores answered dutifully.
”So, the defense changed something at the scene, am I right?”
“Like I said, all crime scenes have some sort of contamination.”
Juan walked over to the prosecution table and put an eight and a half by eleven document on the screen for all to see. It was a picture of the office of Travis. A large desk was centered in the room while hundreds of books lined the walls. The room was very neat with nothing looking out of place. One could see the opened lid of a laptop in the background behind the desk.
“Take a look at Exhibit # 808,” Juan Martinez directed to Detective Flores. “This is how you found the laptop at the scene, right?” Juan paced forward and then turned and stopped.
Juan stepped forward two steps and looked directly at Flores. “Tell me, Detective Flores, what were the procedures in turning on a computer in 2008?”
“We were told not to turn on computer equipment or to physically touch it. Always wear gloves,” Flores stated.
Juan took another step forward. “You were told that it was okay to wake a computer, though?”
“The old defense team was in the room, right?”
“Yes,” he answered.
“Someone else was there when you were looking for an adaptor, right?”
Juan paced a few steps back toward the prosecution table, turned around to face Flores and opened his hand as if he was welcoming Flores. “Did you know who this other person was?”
“No,” Flores answered. “I thought he was part of the defense team.”
Juan paused a moment before he changed direction. “You could not see what they were doing when they were looking at the computer, could you?”
“What they were doing was turning on the computer and thereby modifying the files that were on the computer, isn’t that true?” he said as he raised his voice for emphasis.
“Objection!” Jennifer Willmott exclaimed as she jumped up from her chair.
“Jury will disregard the last statement,” Judge Stevens said quickly.
Juan Martinez did not look at Jennifer Willmott nor did he look toward the Judge. He continued, “You were there in 2009 for the benefit of the defense, weren’t you?”
“Yes, Sir,” Detective Flores answered. “It was a mutually agreeable time.”
“The only people you saw at the computer was the defense team, am I right?”
“The prosecutor did not touch the computer, did he?” Juan Martinez asked in reference to himself.
“You didn’t touch the computer except to open the evidence bag and reseal it when the defense team was done with their investigation, right?”
“I want you to look at Exhibit Number 810. You indicated at one point that you did not know if there was a pornographic video on the hard drive, right?”
“I was not sure.”
“Detective Melendez wrote in his report (#810) that there was no video of pornography on the computer. Do you see that?” Juan asked.
“He also said, as you did, that there was no pornography whatsoever on the computer, is that right?”
“It is,” Flores agreed.
“There is one visit on June 1, 2008, though. Right?”
“Yes, there is one visit. It shows it’s saved on “You Porn” but not to the computer.”
“Thursday’s expert said there was one visit and it was approximately forty five minutes in length, Right?” Juan asked in reference to Mr. John Smith. One could feel the pace almost getting faster with each question launched at the witness whom Juan had probably had coffee with a thousand times over the last seven years.
“Correct. The visit was within one site.”
“There is a registry that shows a visit on one site and then sites that are within that browser. There is no pornography and only a registry list of site visits, correct?”
“Yes, Sir,” he answered confidently. It was as if someone with common sense had finally stepped into the room and it made Detective Flores comfortable.
“Did you ever find pornography on the computer either then or recently?” Juan asked.
“No, I did not.”
“Did you find any child pornography?”
“No, I did not.”
“In the investigation, you thought the murder may have been the result of the attack of two masked individuals as told to you by the defendant, didn’t you?”
“Yes,” Flores answered.
“That would change how you would investigate a scene?”
“There would be a different sense of urgency,” Flores responded.
“At the time of this story, there was no evidence of pornography, was there?” Juan asked.
Juan sat down while Jennifer Willmott re-crossed the witness covering the same ground that she had begun with, implying that Flores’ touching a computer with a pen caused irreparable damage. She finished with the witness.
Judge Stevens asked the Jury if there were any questions before she excused the witness.
The Courtroom waited while Randy got the lone question from the basket in front of the Jury. The Judge called the attorneys of both sides forward while they discussed it with white noise hissing in the background. She turned to the Jury when the lawyers went back to their respective seats.
“Ladies and Gentlemen, this is all the testimony we will have today. There will be no Court tomorrow so we ask that you be back at 10:00 AM on Wednesday,” she directed.
I was driving home from the Courthouse while rain spit out of the sky. It was dreary and characteristic of short periods that we may go through in the winter. The mood of the weather could be likened to the testimony of what was heard from Detective Flores. The Jurors wanted a sunny day of evidence at the start of the day and instead got a cloudy day of details.
I was thinking of the six months I spent as a Juror and the many months of testimony that we had to process. Even more importantly, I was thinking of the periods of deliberation during three phases of the similar death penalty trial and the cruel killing of Dale Harrell. To this day, I will always consider the third phase the most difficult. One has to balance the cruelness of a murder against factors that may reduce the culpability of the defendant. One has to look for Justice for the victim and balance it against the possible death of a defendant. Both weights are heavy burdens because all a Jury wants to do is the right thing so that they may sleep at night.
Today was a victory for Juan Martinez, the prosecution and the victim, Travis Alexander, although not readily obvious at the outset.
These Jurors are trying to reserve judgment until all the evidence has been presented. There are days, however, that Juries will be quick to discard and today was one of them. I think the Jury began the day thinking that Jennifer Willmott and the defense team was going to open the case wide open. It was the direction of her questioning that would cause them to scrutinize the behavior of Juan Martinez and Detective Flores. Oddly enough, a Jury begs for overwhelming evidence for the defendant so they do not have to be in a position to render the Judgment of death.
Instead, they found a Red Herring. At the end of the day, all they have found on Travis Alexander is that he may have been on a website for forty five minutes. This information might be compromised by a Detective who thought policy and procedure said it was okay to turn on a computer by touching it with a pen.
We were in deliberations during the Marissa DeVault Trial and the murder of Dale Harrell was committed six months after that of Travis Alexander. We needed to see the cell phone that DeVault had used to call 911. We had the phone in the deliberation room and all of us realized how much the times have changed from 2008 – 2014. Technology ages quickly and 2008 felt like the dinosaur age. This Jury will see the growth of technology and how it will affect the evidence collecting process especially with computer forensics. Although they have to do is to look at the phone in their hand.
This Jury is comprised of reasonable men and women. They see no signs of malfeasance. The problem they are having is that they are looking for reasons to save the defendant’s life and are woefully disillusioned. They fact that a Detective touched a laptop with his pen has no weight against 152 pictures that they saw on the second day of trial.
This Jury knows the Defendant is convicted of first degree murder. They know she did it with cruelty. They are already biased by two decisions the prior Jury has reached. They need to hear mitigating evidence, those things that balance the scale against the cruelty of the crime. The scale of aggravating factors only seems to get heavier while the mitigating factors have the weight of a helium filled balloon on a breezy day.
The Jurors still have three witnesses who have not completed testimony and some Jurors are wondering why they are getting incomplete sentences when they are looking for a path to Justice. They remember that Dr. Geffner will be coming back in the latter third of the month. Some are wondering what happened to John Smith as a return was expected.
Most of them are wondering why they only heard a day and a half of testimony from the defendant. This is the witness they need to hear from the most. They want to hear about ownership of the death of Travis Alexander and they expect remorse. Neither may be enough to save her life but lack of either will certainly give her death.
The Jury no longer wants to hear the quibbles of the defense team and the defendant. They need to know the hard answers to face the atrocities done to Travis Alexander.
I thought it interesting that only one question was asked of Detective Flores by the Jury. The question was discarded by the Court. The fact that no other question was asked of the Detective is a great sign for Travis Alexander.
This is a Jury of reasonable people.
I will bet there are Jurors that think Juan Martinez has already presented his case. Because this is a retrial of the third phase, he had the opportunity to provide only an overview which is an aberration from normal third phase proceedings. They are not trained on the sequencing of a trial.
This Jury is in for a pleasant surprise not too far down the horizon. Every day that passes is another step toward Juan Martinez assuming the reigns. Each passing day represents a step closer to Justice for Travis Alexander and his family.
I cannot imagine that the defense team is looking forward to the wrath of Juan…especially the defendant.
“Every good relationship that develops as a result of this Trial is the manifestation of the Spirit of Travis Alexander.”
Justice 4 Travis Alexander…
Justice for Dale…
Paul A. Sanders, Jr.
The 13th Juror @The13thJurorMD (Twitter)
“Brain Damage: A Juror’s Tale” available on:
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