New Study Predicts Wrongful Conviction Rate in U.S. at 5,000 to 10,000 Per Year

Prof. Marvin Zalman

By Professor Marvin Zalman.   Full article here.

The conclusion states:

The ultimate question is whether the prospect of, at a minimum, 2,000 innocent defendants going to prison every year (with capital murder defendants a disproportionately higher part of this total as their wrongful conviction rates are demonstrably higher than 0.5%), and another 3,000 receiving lesser felony sentences, should move the innocence reform agenda. That question will be decided in the political and policy arenas. Whatever activists or policy makers do, scholars have an obligation to think clearly about the issue. This obligation led me to rethink the bases of my belief that the Estimate of a general wrongful felony conviction rate of 0.5% to 1.0% is correct, which reconsideration has been explained at length herein.

As the Estimate is an estimate it could be wrong in either direction. It is likely that the number-of-wrongful-convictions-is-vanishingly- small hypothesis is the ideologically tinged wishful thinking or defensive reaction of some judges and prosecutors. Against such a conclusion, I hold to the Estimate beyond a reasonable doubt (in the law’s terminol-ogy) or almost certainly (using words of estimative probability).  It may be that the actual general rate of wrongful convictions across the nation is higher, a possibility that is limited by the fact and the conjecture that wrongful death sentences are higher, at about 3%.  It is also cabined by the opinion surveys of justice system actors.  Against the Estimate being wrong in that direction, I hold to it with less firmness. In legal terms I believe that clear and convincing evidence and reasoning supports the Estimate against a higher error rate. Applying terms of estimative probability, the Estimate is probably correct against a higher error rate.

Acceptance of the Estimate creates a moral obligation to correct the factors that most likely generate wrongful convictions. If the Estimate is wrong as against higher estimates of 2 or 3% or higher, moral and professional reasons to enact innocence reforms become stronger. The more difficult issue is whether an error rate of 0.5 or 1% justifies reform efforts. I believe that most Americans would say that one out of 100, or even one out of 200 unnecessary infections contracted by hospital patients because of preventable systemic problems is too high in an advanced technological society. I believe that most Americans would say that one out of 100, or even one out of 200 innocent defendants convicted of felonies because of a range of preventable systemic errors by the very governmental system designed to provide justice is too high in a society guided by the rule of law. Arguments to the contrary are based either on ignorance of criminal justice realities or on faulty cost-benefit analyses. The intuition of those who support justice system reforms designed to prevent wrongful convictions, that wrongful convictions are large in number, is supported by a sober look at the realities of the criminal justice. The imperative to act and to keep as few as 2,000 innocent inmates a year out of prison is supported by our ideals of justice and our com- mitment to professionalism in the justice system.

21 responses to “New Study Predicts Wrongful Conviction Rate in U.S. at 5,000 to 10,000 Per Year

  1. Thank you for this. I’ve been thirsting for data on the subject. The study is “qualitative” and necessarily inferential, but I’m not sure we’ll ever be able to do better than that.

  2. arkansastruthseeker

    Reblogged this on arkansastruthseeker.

  3. After reading the Professors article,I realize an accurate number of false convictions would be difficult to obtain. So I have taken a different path in justifying the cost of reform in our system. First we can look at they way D.A.’s are rewarded (re-elected) for doin their jobs. It is generally associated with a high conviction rate. These people work for us. Their only concern should be that justice was served for the benefit of society, not their conviction rate which only benefits their careers. Second I would look at the difficulty in waging a proper defense without the necessary funds that it requires. The current system has obviously tilted the scales greatly in favor of the weathly. Finally I think adding data to your study that shows the effect of being one being poor , to the likelihood of one being wrongfully convicted. Those adjustments alone would be an effective start.
    N

  4. With New York’s over 50 prisons in the depressed upstate economy . How fair of a trial do you think you will get when the majority of the town either works for is related to someone in corrections. Just this last month on Dateline NBC there were two wrongful conviction cases out of New York. I have been spreading the word about New York state’s public defense crisis for years
    I’m here to tell you my husband is being wrongfully imprisoned for murder in New York state since November of 1992. But before unraveling the issues and facts, I ask you : Do you feel secure in your liberty and justice knowing that the following circumstances exist to deprive people of their freedom and lives ?
    There was a trial, but the Legal Aid defense attorney who handles the case made no meaningful defensive investigation. Angry at my husbands refusal to accept a plea deal for a crime he did not do, Legal Aid worked to prevent an effective defense.
    Identification procedures were found by the court to have been ” certainly suggestive” but allowed. Indications of misidentification at key points are indicated, but ignored. Over a dozen police reports, and accounts from at least four additional witnesses are being withheld by the prosecution. Also, crucial evidence such as the deceased’s leather jacket, pants. underwear, boots and socks, as well as hospital x-rays, autopsy photos, weapons, and blood samples are absent or not being disclosed by the prosecution. These and other indications of evidence manipulation went unchallenged and ignored by Legal Aid.
    The jury itself was unfair and biased. Prejudicial evidence suppressed by the court nevertheless reached the jury without the courts knowledge. On record, Legal Aid refused to inquire into objections to the unfair jury. On other occasions some jurors maintained their biased intent to view all evidence in favor of guilt.
    Some declared their social connections to those prosecuting the case yet were never removed from acting as a jury member . Legal Aid refused to act upon any of this. It is even demonstrated that the Legal Aid attorney, and an intern, both perjured themselves on the stand to prevent my husbands relief in a post-trail issue. But the court chose to protect the attorney’s careers and ignore this falseness rather than rule in my husbands favor. This can happen to anybody’s family. None are immune !
    Taken together with other specifics of the case, the unreliable and unjust nature of this New York conviction should be apparent.

  5. I also have had personal experience of such injustice ( in my family and among my friends), although not always confined to legal aid, even paid lawyers can be lazy or biased or incompetent, and do not reveal that either in advance or at the time.
    And sometimes other factors conspire, such as race bias or class bias. I’m so sorry you are suffering with this.

  6. Hello there, I would like to post the link to a website I’ve created for my best friend, Jason Burkett. Jason is currently serving a life sentence for a crime he did not commit. If you find the time, I would really appreciate you checking out the website. It’s http://www.jason-burkett.com
    Any help, any word of comfort and encouragement, and any support is greatly appreciated!!!! Thank you! Stefan

  7. My Son Bryce was arrested at age 15 for a murder on 12-31-2009 in TX. Before the victim died he named his murderer, he said his own son Nick, this is a fact documented in the *Original* police report 090979792. A Forensic Psychologist for the defense found my minor child not guilty and not culpable, she named the person who was. The defense never presented her report, I have this document also. She also wrote in length about my sons Neurological Disorder and his cognitive disabilties. He couldn’t possibly be a competent adult at age 15! His history is WELL DOCUMENTED as is the fraud case. ORIGINAL case-2010-JUVI-003-22a….

    On September 9th 2012 Texas will tranfer my son over to a G4 G5 Adult notorious prison…. unless someone stop this injustice I fear my son will be raped, stabbed beaten and murdered, he fears this also. please help Bryce,

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  17. Look at case which has been reversed by the Georgia Court of Appeals at http://www.gaappeals.us docket # A13A0151, Released 8-09-13 from prison due to county superior court not having venue or jurisdiction.Tthat court sentenced me 20 years serve 12. How can judges and prosecutors not know what the laws are in there state which they are sworn to uphold?

  18. A lot of this stems from the plea bargaining system which has become a complete abridgement of justice. When the penalty between a trial and a plea bargain is plainly identifiable by simple numbers it is not hard to see that it has become a systemic abuse.

    Additionally, I can personally speak to wrongful conviction being a recognized and common practice in our criminal courts today. In my specific circumstance it only cost me two years of my life and release only upon the essential blackmail condition of ‘filing no further’ (Idaho). Our criminal justice system is a system of blackmail and suppression of political dissent. It doesn’t matter who is in power or what the agenda is. The system is built so that whomever wears the badge, the suit, or the robe can push whatever agenda their overlords and financiers desire. It is equal opportunity corruption.

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  20. i agree but what are we going to do about it i was convicted wrongfully and is trying to appeal my case i did the time and is now out of prison the judge finally responded to my 2255 after 3yrs. and denied me a hearing with prejudice i have 30 days to file the appeal i agree with you it is an equal opportunity corruption but we have to stop it

  21. TEN KINDS OF UNFAIRNESS IN THE JODI ARIAS TRIAL
    1 Intimidation of Defense. Defense counsel, expert witnesses, and prospective character witnesses all received death threats, other threats, or actual injuries which affected their behavior. For example, domestic-violence expert Alyce LaViolette, during her testimony, was treated in hospital for anxiety. At the same time, there was a national campaign to ruin her reputation by posting bad reviews of her books and by pressing organizations to cancel speaking engagements. The judge took no effective action to protect the defense from any of these acts, which are state, and arguably federal, crimes.
    2 Due process I: Essential elements. Arias was charged with first-degree murder on two alternate theories: premeditation and felony murder. Yet the felony in question was never definitely specified, even in the state’s closing argument. At midtrial, and briefly in closing, the state said it was second-degree burglary with intent to assault. More often in closing, the state said it was second-degree burglary with intent to steal a gun. It should be viewed as a Sixth-Amendment violation for a defendant not to know the details of the charges against her – the essential elements of the crime — until rebuttal by evidence is no longer possible.
    3 Due process II: Guilt via state falsehood. In closing, the state invited the jury to convict Arias of felony murder based on this second-degree burglary of unlawfully remaining in Travis Alexander’s house with the intent to steal his gun. Yet the state, in attacking Arias’ self-defense story, had argued vigorously that Alexander owned no gun. Rather, a mainstay of its case for premeditation was to accuse Arias of stealing her grandfather’s gun a week before. Thus, the jury was invited to convict her of a crime by finding that one of the state’s own main assertions was false beyond reasonable doubt. That is likewise inconsistent with due process.
    4 Irrational verdict I: Felony murder. In the end, seven jurors voted for both premeditation and felony murder, though in the state’s case they were alternatives. Apart from that, there are two reasons why these votes should have been voided.
    First, the state provided exactly zero evidence for felony murder beyond the killing itself and the gun theft, which were undisputed. In closing, the prosecutor falsely claimed that these two elements suffice for felony murder. Rather, what is also required, on the gun-theft theory, is that Arias, in remaining, had the “objective” (the jury instructions’ gloss on ‘intent’) of stealing Alexander’s gun, and killed him in furtherance of that goal. But there was no evidence for this, and no reasonable juror could believe it. Obviously, Arias took away the gun to hide her role in his death; she did not kill him to get a cheap gun, for which, defense and prosecution agreed, she had sources near home, not a thousand miles away. The judge should have simply dismissed the felony-murder charge, as the defense had asked before.
    5 Irrational Verdict II: Premeditation. These seven jurors, at any rate, could not have rested their premeditation vote on a belief that Arias stole her grandfather’s gun. But the remaining evidence of premeditation is very weak. It consists of aspects of a trip that any traveler might do or suffer, amid multiple facts negating concealment. To dye your hair, to rent a car in a different town, to ask not to have a red one, to take gas cans into the desert, to turn off (or lose power to) your cell phone there, to find your license plate upside down – all these have obvious innocent explanations. On the other hand, as the defense noted, no one seeking to conceal her trip would borrow gas cans from a friend, visit other friends along the way, make multiple bank transactions, stop at a beauty salon, buy gas with a debit card when ample cash was at hand, or save her receipts.
    On such facts, a competent, unbiased judge would void these seven jurors’ premeditation votes as unreasonable. With both votes of the seven nullified, the verdict falls.
    6 State Perjury. Taken together, medical examiner Kevin Horn’s autopsy report and his testimony assert an anatomical impossibility: that the bullet passed through Alexander’s right frontal lobe, yet his dura mater (the outermost membrane covering the brain) was intact. This is as impossible as a bullet’s piercing the heart without breaking the skin. At trial, Horn said his dura-mater statement was a “typo.” But he did not say what it could be a typo for. The error could not be just a missing ‘not’: autopsy reports describe injuries; they do not merely say organs are “not intact.” Moreover, the actual statement (p. 7) is: “The dura mater and falx cerebri are intact.” The falx cerebri is nowhere near the alleged bullet track.
    Also, at a pretrial hearing and in depositions, Detective Esteban Flores testified that, based on what Horn had told him the day before the hearing, the gunshot came first, and it did not incapacitate Alexander or did so only briefly. This agrees with Arias’ self-defense story. At trial, however, Horn claimed that the gunshot wound came last and had to be incapacitating. He also claimed that he could not recall ever speaking to Flores about the case. So, before or during trial, the state switched not just the details of its charges, but even its key facts.
    It is probable that one or both of these state witnesses committed perjury.
    7 Other Prosecution Misconduct. Prosecutor Juan Martinez denied the existence of evidence, then introduced it against the defendant at trial. He also withheld other key evidence, like the camera, from the defense. At trial, he threw objects around the courtroom, including an exhibit (the camera). He continually bullied defense witnesses, including experts, argued with them, cut off their answers, and distorted their testimony. He even miss-described his own witness’s testimony (the “bloody” handprint, which a state witness had said tested negative for blood). Defense objections to his outrageous courtroom conduct were consistently but wrongly overruled. In closing, he flagrantly misstated the law of felony murder (§4).
    8 Non-sequestration of jury. An unprecedented media campaign of hatred against Arias preceded and accompanied the trial. One channel, HLN, devoted eight or more hours a day to mocking, vilifying, dehumanizing, and demonizing her. HLN’s torrent of abuse and prejudice has no counterpart but Oceania’s campaign against Emmanuel Goldstein, in 1984. Numerous hate sites also sprang up in social media.
    Jurors had free access via internet to all of this prejudicial material – not just at home, but even in the courthouse itself. The judge’s actions to avoid jury taint were clearly ineffective, since a dismissed juror admitted talking with other people about the case, though he had never said so when questioned by the judge. A juror question also showed access to news coverage. Even County Attorney Bill Montgomery had warned against not sequestering the jury in a case of such national prominence.
    9 Reasonable doubt on self-defense. LaViolette explained how the Alexander-Arias relationship resembled the abusive ones on which she is an expert, and she found Arias’ story entirely credible. The prosecution bore the burden (in Arizona) of disproving self-defense beyond reasonable doubt. On what basis can a juror conclude that an expert opinion is false beyond reasonable doubt? True, the jury had other evidence besides. But the state had earlier denied its own gunshot claims (§6), incapacitation was further rebutted by a defense brain expert, and the premeditation evidence was very weak (§5). None of this extra evidence shows that no reasonable person could hold LaViolette’s view of Arias’ mental state, as is required to vote for conviction.
    10 Governor’s statement of guilt. To complete a perfect storm of injustice, Arizona governor Jan Brewer stated on television that Arias was guilty – during jury deliberations.
    Evaluation: The Constitution’s guarantee of “due process” to those accused of killing another person has long been understood to protect a right of self-defense – that is, a claim that the killing was justified by the circumstances at the time. Jodi Arias did just that in defending herself from a ragging madman attacking her for whatever reason.. Further, the right to stand one’s ground is guarantee of “due process” in the Fifth and 14th Amendments further support it.
    The abuse and unfair judicial events in this case reflects on every ones rights in this country.. Everyone’s Rights and that of Jodi Arias, as well as holding Travis Alexander accountable for his behavior, rape and other violations have been denied. The Courts and States must respect the law if it is to impose it on everyone. If you believe in fairness, justice and the American way then demand a stop, to this corrupt judicial system being displayed in this case. Remember it took two people for this tragic event to happen. This Kangaroo court of Arizona and how they are abusing their authority against one person is a crime in itself.
    This case has turned into a modern day Witch Hunt, filled with Court corruption, Mormon religious interference, Prosecutor lies and endless reasonable doubt, that have been ignored, covered up. Jodi Arias has been railroaded by an abusive state. The US Department of Justice needs to take steps to stop the abuse and correct, what the State of Arizona has allowed this injustice to take place and needs to be held accountable. The records demand to be corrected and the Constitution both US and State need to be followed.
    Observations and the Violations of Rules of Law.
    Subj:The continued Abuse and Witch Hunt of Jodi Arias, State of Arizona vs Jodi Arias..
    Arizona Justice denied and Judicial Court Corruption upheld.
    In review of the case and the ongoing series of trial events taking place in the State of Arizona, it clearly shows that Jodi Arias has not received a fair trial and is being abused to wit several of her legal rights have been violated and thus demands intervention, corrections, estoppels actions by the Federal Governments Department of Justice.
    Jodi Arias was locked away pending a court date some five years which is abusive in itself.
    That form of abuse, denied her Constitutional Rights, specifically The Sixth Amendment (Amendment VI) to the United States Constitution is a part of the United States Bill of Rights that sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment. To wit. the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.[1]
    Further “ The Right to a Fair Trial” essential a right in all countries respecting the rule of law Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. That Right was denied to Jodi Arias by the State of Arizona and its failed legal system.
    Then as it is now she and other Inmates being locked in a cell 23 hours per day is in direct violation of the United States Constitution’s 8th Amendment protecting the accused and/or convicted against cruel and unusual punishment.
    These are US Constitutional Rights and Laws that the State is and has Violated in the case of Jodi Arias.
    Then there is Prosecutorial and judicial misconduct which is unacceptable in all cases, and it is shown throughout this case.
    During the Jodi Arias trial, there were several miscarriages of justice. Judge Sherry Stephens chose not to sequester the jury, subjecting them to the trial-by-media circus, led by HLN and their biased, half-truth opinions, which far too many believe is “news”.
    Additionally, Detective Flores and Dr. Horn were found to have lied under oath. Prosecutor Juan Martinez committed numerous courtroom violations — in and out of the actual room itself.
    Finally, the defense team did not present all of the potentially exonerating evidence that they should have. There is much exculpatory evidence pointing to the fact that there was no felony and there was no premeditation that needs to be accurately explained during the appellate process.
    This was a crime of passion in a relationship of tumult. This was not premeditated murder and it was not murder during the commission of a felony. The media, led by HLN, undoubtedly played a major role in this unjust verdict.
    The following Motions have been submitted and subsequently rejected by the already bias judge further violating Rules of Law and the US Constitution:
    The Citizens of the Unites States of American call for intervention, justice and the remanding of this case to a Federal Court outside of the State of Arizona declare a mistrial and overturning of the wrongful conviction. Further action to stop the abuse currently being encoured by Jodi Arias is mandated. Jodi Arias is not a monster as everyone make her out to be, rather an abused women who was forced to defend herself and now some five years later still having to defend herself but this time from in a prison cell and most likely suffering from PTSD untreated.
    1. Michael K Jeanes, Clerk of Court
    *** Electronically Filed ***
    Mary Ann Martin
    4/7/2013 4:58:53 PM
    Filing ID 5196778

    L. KIRK NURMI #020900
    LAW OFFICES OF L. KIRK NURMI
    2314 East Osborn
    Phoenix, Arizona 85016
    602-285-6947
    nurmilaw@gmail.com

    JENNIFER WILLMOT #016826
    Willmott & Associates, PLC
    845 N. 6th Ave.
    Phoenix, AZ 85006
    602-344-0034
    jwillmott@willmottlaw.com

    THE SUPERIOR COURT OF THE STATE OF ARIZONA
    IN AND FOR THE COUNTY OF MARICOPA
    STATE OF ARIZONA,
    CR- 2008-031021-001
    Plaintiff,
    JODI ARIAS
    Defendant.

    MOTION FOR MISTRIAL ; INABILITY TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO PROSECUTORIAL MISCONDUCT
    (ORAL ARGUMENT AND EVIDENTIARY HEARING REQUESTED)
    (Hon. Sherry Stephens)
    COMES NOW, Ms. Arias, by and through undersigned counsel to request that a
    mistrial be declared based on the prosecutorial misconduct that has infested these proceedings with a level of unfairness that cannot be cured by any other means. Ms. Arias bases this assertion on the fact that the circus like atmosphere inside the courtroom that to date has included counsel for the State yelling at witnesses, attacking witnesses on a personal level and throwing evidence. Not content with confining his misconduct to inside the courtroom counsel for the State, pursuant to his own admissions, chose to release evidence that was not coming into evidence at trial to the media and to pose for pictures with his so called fans on the courthouse steps has turned what is supposed to be
    a trial that comports with the rights due Ms. Arias pursuant to the 5th, 6th and 14th
    Amendments to the United States Constitution and Art. 2, §§ 4, 15, 23, and 24 of the Arizona Constitution into something that more closely resembles a modern day equivalent to the Salem Witch Trials which ended in 1693. This State of affairs has placed counsel for Ms. Arias in a position that they cannot fulfill the duties they owe Ms. Arias, pursuant Arizona Rules of Criminal Procedure, Rule 6.8. Counsel’s inability to fulfill these duties would thus result in Ms. Arias not having the benefit of the rights she is due pursuant to the 5th, 6th and 14th Amendments to the United States Constitution.
    Support for this Motion can be found in the attached Memorandum of Points and
    Authorities that is incorporated herein by reference.
    MEMORANDUM OF POINTS AND AUTHORITIES
    I. RELEVANT FACTS
    Opening statements in this matter were made on January 2, 2013. Since that time the State has thrown evidence and his pen, yelled at nearly every witness who took the stand in support of Ms. Arias and has hurled personal insults at defense counsel. In response to this behavior Ms. Arias has had to make several oral motions for mistrial that have been summarily denied by this court. More recently Ms. Arias has had to make mistrial motions because the State has not confined its misconduct to inside the courtroom. Most prominent amongst this extra-curricular misconduct is his decision to pose for photographs with his “fans” outside the courthouse steps where jurors could potentially see him so doing. In further efforts to prove his case in the court of public opinion rather
    than a court of law on April 4, 2013, the State unapologetically admitted that it had released a plethora of damming evidence that would not otherwise come into trial to the media. Pending before this court is a motion for mistrial based on the former, Ms. Arias’ motion for mistrial based on the latter was summarily denied.
    Note should also be made of the fact that the conduct described above has
    ramifications that effect the ability of Ms. Arias to present her defense as the public response to this unprofessional conduct has involved berating witnesses via e-mail, telephone and in various internet forums. Said action has not only caused personal distress to these witnesses but has made it difficult for them to provide effective testimony for Ms. Arias.
    II. LAW AND ARGUMENT
    In 2003 the American Bar Association created the standard that defense counsel
    must meet in order to be effective, when the State seeks to impose death on an accused, these standards are entitled Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. (henceforth ABA Guidelines) Wiggins v. Smith 539 U.S. 510, 123 S. Ct. 2527(2003). Of further note is the fact that, Arizona has also imposed the guidelines upon counsel as well through the dictates of Arizona Rules of Criminal Procedure, Rule 6.8(b)(1)(iii). Thus, consideration of this motion means considering whether or not, as it now stands, counsel can meet these standards. In this regard a few guidelines standout; Guideline 2.1(C) which mandates that counsel be able
    to operate in an environment that allows them to provide zealous advocacy, Guideline 4.1 B(1) and B (2) which mandates that Ms. Arias receive the effective assistance of experts.
    As the facts above indicate, counsel for Ms. Arias cannot meet the dictates of these guidelines when defense experts are being harassed inside the courtroom by the prosecutor and outside the courtroom by those who chose to mimic his behavior in other public forums.
    In considering this motion, Ms. Arias also asks the Court to consider the
    constitutional ramifications that arise when her attorneys cannot provide her with a full and complete defense to which she is entitled during the guilt phase, California v. Trombetta 467 U.S. 479 (1984) and cannot present any and all mitigation evidence which could mean the difference between life or death such a state of affairs is not constitutionally permissible Eddings v. Oklahoma 436 U.S. 921 (1978). Ultimately then, counsel for Ms. Arias cannot provide her with effective assistance of counsel, to which she is due pursuant to Strickland v. Washington 466 U.S. 668 (1984).
    Furthermore, “[A] trial is unfair if the accused is denied counsel at a critical stage of his trial.” United States v. Cronic,466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
    III. CONCLUSION
    Based on the facts and law cited above it is beyond legitimate dispute that the conduct of the Prosecutor has placed counsel for Ms. Arias in a position where she cannot present a complete defense and where she cannot receive effective assistance of counsel during the trial and any potential sentencing phases. Thus, the trial at issue does not comport with the dictates of the 5th, 6th and 14th Amendments to the United States Constitution and Art. 2, §§ 4, 15, 23, and 24 of the Arizona Constitution meaning that at this point in time that the only constitutional course is to declare a mistrial.
    RESPECTFULLY SUBMITTED this 7th day April, 2013

    LAW OFFICES OF L. KIRK NURMI
    By: __/s L. Kirk Nurmi_______
    L. Kirk Nurmi
    Attorney for the Defendant
    Copy of the forgoing filed/Delivered
    this 7th day of
    April, 2013, to:

    Honorable Sherry Stephens
    Judge of the Superior Court
    Juan Martinez
    Deputy County Attorney
    By /s/ L. Kirk Nurmi
    L. Kirk Nurmi
    Attorney for the Defendant

    2. Michael K Jeanes, Clerk of Court
    *** Electronically Filed ***
    Kathleen Curtner
    5/19/2013 6:24:36 PM
    Filing ID 5257378
    L. KIRK NURMI #020900
    LAW OFFICES OF L. KIRK NURMI
    2314 East Osborn
    Phoenix, Arizona 85016
    602-285-6947
    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 ARIAS

    SUPERIOR COURT OF THE STATE OF ARIZONA
    IN AND FOR THE COUNTY OF MARICOPA
    THE STATE OF ARIZONA
    Plaintiff,
    vs.
    JODI ANN ARIAS,
    Defendant.
    )))))))))))
    No. CR 2008-031021-001DT
    MOTION FOR MISTRIAL;SENTECING PHASE
    (Hon. Sherry Stephens)
    Pursuant to the 5th, 6th, 8th, and 14th Amendments to the United States Constitution, and Art. 2, §§ 4, 15, 23, and 24 of the Arizona Constitution, Ms. Arias requests that the court declare a mistrial of the “sentencing phase” proceeding now being held against Ms. Arias due to the fact that key mitigation witness, Patricia Womack, has been threatened to the point that she is no longer willing to provide testimony on Ms. Arias’ behalf. In the alternative, Ms. Arias requests that this court advise the jury that the reason why Ms.Womack is not testifying for Ms. Arias due to these threats. Support for this motion can
    be found in the attached Memorandum of Points and Authorities that is incorporated herein by reference.
    MEMORANDUM OF POINTS AND AUTHORITIES
    I. RELEVANT FACTS
    On May 8, 2013, Ms. Arias was convicted of first degree murder. On May 15, 2013,the same jury who convicted her found that the State had proven that the murder at issue was done in an especially cruel manner, making her eligible for the imposition of a death sentence. On May 16, 2013, Ms. Arias made her Opening Statement in which the jury as advised of the several mitigating factors that she sought to prove and how witness Patricia Womack would, with her testimony, support the existence of some of these factors (listed on the jury instructions as factors #3,4 and 5). Also on May 16, 2013,victim impact evidence was presented after which Ms. Womack was scheduled to testify. For reasons unrelated to this motion, Ms. Womack did not testify on May 16, 2013, and
    was instead scheduled to testify on May 20, 2013. However, after returning home Ms.Womack began receiving threats, threats that included threats on her life if she were to testify on Ms. Arias’ behalf. On May 19, 2013, Ms. Womack contacted counsel for Ms. Arias that she is no longer willing to testify due to these threats. It should also be noted that these threats follow those made to Alyce LaViolette, a record of which was made exparte and under seal.
    II. LAW AND ARGUMENT
    When limitations are placed upon the type of mitigating information a defendant can present a death sentence cannot stand. Lockett v. Ohio 438 U.S. 586 (1978).
    Furthermore, this court must be mindful of the fact that a sentence of death is
    qualitatively different than a term of years. Woodson v. North Carolina 428 U.S. 280(1976). This difference is of import because it requires the sentencing body to give consideration to Ms. Arias. Id. Given that Ms. Womack’s testimony
    related to three important mitigating factors, one of which demonstrates a clear nexus to the crime, cannot be heard it seems difficult to conceptualize any sentence of death could comport with the rights due Ms. Arias pursuant to the 5th, 6th, 8th, and 14th Amendments to the United States Constitution, and Art. 2, §§ 4, 15, 23, and 24 of the Arizona Constitution. Any sentence of death would also stand in contrast to well established Supreme Court precedent which dictates that the 8th Amendment dictates that the death penalty be reserved for the worst of the worst Kansas v. Marsh 548 U.S. 163 (2006). Certainly, the State is asserting that Ms. Arias is the worst of the worst and the crux of this motion is that Ms. Arias cannot show this to be untrue because her ability to present mitigating evidence is being limited by the sort of harassment that Ms. Arias sought to avoid when
    she sought to keep cameras out of the courtroom and to prevent the prosecutor from engaging in personal attacks upon witnesses in front of those cameras. The fact that Ms.Arias’ pleas for a constitutional trial went ignored by this court has now placed her in a position where her ability to present mitigating evidence is being restricted in violation of the dictates of Roper v. Simmons 543 U.S. 551 (2005).
    In deciding this motion, Ms. Arias asks this court to be cognizant to the fact that the current state of affairs interferes with Ms. Arias’ undisputed right to present mitigatingevidence. See Penry v. Lynuagh, 492 U.S. 302(1989); California v. Browm 479 U.S.538 (1987); Eddings v. Oklahoma 455 U.S. 104 (1982).
    Finally, Ms. Arias asks this court to be mindful of the fact that in contrast to the
    constitutional rights due Ms. Arias, the death penalty is not a constitutional imperative to which the State has a right, or is such a sentence a statutory requirement; far from it. It’s merely a sentencing option that is itself alleged optionally. It can be easily discarded toup hold the United States and Arizona Constitutions’ actual guarantees of a speedy trial, the effective assistance of counsel, due process, Rule 8 strictures, and even victim’s rights under Arizona Const. Art. 2.2—which notably does not include the right to a death sentence. The laws of the State of Arizona are always satisfied by a life sentence for the
    crime of First Degree Murder. Thus, its elimination as a sentencing option should not be seen as a severe infringement upon the State’s interest. Instead the dismissal of this Notice should be seen as a plausible solution to preclude Ms. Arias from facing a violation of her constitutional rights; whichever violation she determines is the lesser of two evils.
    As an alternative to declaring a mistrial Ms. Arias requests that the jury be advised that;
    MS. ARIAS HAD INTENDED TO PRESENT THE TESTIMONY OF MS. WOMACK TO YOU. MS. WOMACK WOULD HAVE TESTIFIED REGARDING THE ABUSIVE ENVIRONMENT MS. ARIAS GREW UP IN AS WELL AS THE ABUSE SHE SUFFERED AS AN ADULT. HOWEVER, MS. ARIAS WILL NO LONGER BE ABLE TO PRESENT THE TESTIMONY OF MS. WOMACK BECAUSE HER LIFE HAS BEEN THREATENED MERELY BEAUSE SHE SEEKS TO TESTIFY ON MS.ARIAS’ BEHALF
    III. CONCLUSION
    In prior motions, Ms. Arias asked this court to prevent this trial from devolving into a modern day version of the Salem Witch Trials. The court failed to take action in that regard and time has proven Ms. Arias to be correct in that the proceedings against Ms Arias bore little resemblance to a trial that comports with the rights due Ms. Arias pursuant to the 5th, 6th, 8th, and 14th Amendments to the United States Constitution, and Art. 2, §§ 4, 15, 23, and 24 of the Arizona Constitution. Based on these same authorities and those cited herein Ms. Arias once again comes before this court hoping that this court will realize that these “sentencing phase” proceeding are not supposed to be a “publics toning” reminiscent of days gone by, but instead, a capital sentencing proceeding that
    must comport with the constitutional dictates cited above because if the court realizes this legal imperative declaring a mistrial as to this “sentencing phase” must be granted.

    RESPECTFULLY SUBMITTED this 19th day of May, 2013.
    By /s/: L. Kirk Nurmi
    L. KIRK NURMI
    Attorney for Defendant
    Copy of the E-FILED
    delivered this 19th day of
    May, 2013, to:

    Hon. Sherry Stephens
    Judge of the Superior Court
    Juan Martinez
    Deputy County Attorney
    By /s/:L. Kirk Nurmi
    L. Kirk Nurmi
    Attorney for Defendant

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