LITANY OF NOTHINGNESS Day 13 WHY NOT KILL HER

EMPTY BENCH ARIAS COURTHOUSE 11.24.15  WHY NOT KILL HER

“A Juror’s Perspective”

 

Travis Alexander & the Jodi Arias Death Penalty Retrial

by Paul Sanders

 

 

DAY 13

 

“LITANY OF NOTHINGNESS”

 

 

Kirk Nurmi, dressed in a black suit with a yellow shirt and yellow striped tie, pleaded with Judge Stephens at the beginning of the day.  It was commonplace to open proceedings, outside the presence of the jury, with the defense team presenting a motion to the court for suspected malfeasance of some sort by any party.  The media was being targeted once again.

“We request the court to ban all media representation in the courtroom.  Jodi Arias was photographed on November 10, 2014, by Tom Tingle…” Kirk Nurmi began, as he stood behind the defense table.  Jennifer Willmott, Maria de la Rosa and Jodi Arias looked forward from their seats next to Kirk Nurmi.

“The court is aware of the photograph and I have seen it,” Judge Stephens interrupted.  “I have conferred with the Public Information Officer (PIO).  There is to be no live filming.  The photographer has been approved by the court for still photographs and I have been assured that the photograph you are referring to was not taken during a recess.  Are you saying that this photograph was taken during a prohibited time?”

“I cannot pinpoint the time,” Kirk Nurmi started, “It still is an issue because this is problematic that it was taken while Jodi Arias and Jennifer Willmott were in a consultation.  This is a protected right of my defendant.  Again, this is a repeated violation and we demand, for the protection of my client, that all media be removed.  This is a repeated violation.”

Judge Stephens peered over the rims over her glasses from the bench.  “This court is not prepared to return a decision since the point in time that it was taken is unknown.  Do you have any objections, Mr. Martinez?”

Juan Martinez stood up, his knuckles resting on the prosecution table.  “The State has no objections to the media, Your Honor.”

Judge Stephens looked at Kirk Nurmi since he had remained standing.

“Judge, the defense still continues to say this is problematic.  This violates Rule Number Twenty-Two.  This picture has been all over social media and has been seen worldwide on Twitter.  This is clearly violating the rights of the defendant,” Kirk Nurmi pleaded.

“Denied,” Judge Stephens responded.  “The court sees no evidence of wrongdoing on the part of the media.  Bring in the jury.”

Randy, the sharply dressed Bailiff, authoritatively walked over to the jury room door.  He allowed them into the jury box while the court remained standing.

The Courtroom participants sat down as soon as the Jury sat down. It was quiet. I looked to my left and saw only eight or nine reporters present. It was not too long ago that the media seats were always full. I took that as a bad sign after seeing Dr. Fonseca walk past me. It was a sign that she would be on the stand most of the day. There was no camera on the left side, its telephoto lens normally jutting outward behind a wall shielding it from the jury box.

Juan Martinez was dressed in a dark gray suit with a light blue shirt complimented with a gray patterned

tie. His hair was perfect and in place. He looked focused. Expectations were high after his pursuit of Dr. Fonseca at the

close of Day 12.  In spite of the few people in attendance, electricity was in the air.

He walked over to the prosecution table, where Detective Flores and Bill Montgomery sat quietly at attention. Juan Martinez looked at his legal pad, turned around and waited a moment for Dr. Fonseca to get settled.

The Doctor always looked over to the Jury as if they were good friends. She nodded her head at them and

straightened her clothes. She looked ready to tackle this Prosecutor named Mr. Martinez.

Juan walked in short steps back and forth as he questioned her. He did not look at the Jury but faced

them at times. He paced four feet forward and then four feet back. Sometimes, his hands were in his

pockets, his suit coat sleeves resting over his wrists. He looked to the ground as he paced. Other times, he crossed his

arms across his chest while he asked questions. His brow is slightly furled.

He spoke clearly and succinctly. His questioning was pointed and directional. He did not share pleasantries or greetings for anyone as he asked questions. Even his own witnesses are not spared empathy. He is sharp and quick witted. His

questions are a foundation to a piercing thought or conveyance of information. He knew the answers to the questions he asked. He was direct. He went after the truth. Juan Martinez always gets the answer he expects. He never goes down a dark hallway into unknown territory and always goes up a lighted stairwell toward the sunlight of information.

Juan Martinez is like watching a great tennis player as he serves the ball. He imperceptibly takes a breath, looks at his target and swings with his eyes in the distance at where the ball will land. The snap of the ball on the racket is much like the retort of his words as he fires a question.

Dr. Fonseca reminded me of someone on the stand today and I couldn’t put my finger on as to who it was.

“You were able to review all the documents in this case?” Juan Martinez asked her.

“I reviewed voluminous amounts of information,” she answers. “I saw video tapes, read documents and

studied….”

Juan cut her off. “You went on the internet? Am I correct?”

“Well,” she said, looking at the Jury instead of him. “In my line of work, you have to consider a lot of

information. Now what I found…”

“Yes or no!” Juan barked.

“Well, yes,” she answered.

“You reviewed some photographs?”

“Yes.”

“Plus you reviewed testimony of witnesses who have testified?”

“Objection!” Kirk Nurmi interrupts.

It was the first of many sidebars all day long. Juan would ask a question. There would be a sidebar and the

cycle would continue throughout almost all the ensuing questions.

“Do you remember when you last testified in Court?” Juan Martinez asked her.

“I really can’t respond to that, Mr. Martinez,” she answers. She let the “r” in Martinez roll from her tongue,

as if to emphasize a Latin influence, a showing of respect. She always rolled the “r” to the point where it almost

seemed condescending.

She continued, while looking at the Jury. “I find that it would be a mischaracterization

of what I might say or have said. It is….”

“So, you don’t remember when you last testified,” Juan remarks as he goes to the Prosecution table and

pulled out a document. “Let’s listen to what you said.”

“Objection!” Nurmi said.  “Improper impeachment!”

The attorneys, Juan Martinez, Jennifer Willmott and Kirk Nurmi went into sidebar, sometimes called a bench conference, and gathered in a semi-circle at the judge’s bench.  White noise played over our heads so that we couldn’t hear what is being discussed.

“You did see an interview with the Defendant, did you not?” Juan continued, after their brief meeting.

Dr. Fonseca curled her brow in thought. The Court waited patiently while she thought about it. “I think I might have seen two interviews from 2009….”

“You seem to be having problems with your memory,” Juan points out.

“Your questions are unclear, Mr. Martinez.” She rolls the “r” again. “I can’t be expected to remember everything,” she answers. “There were thirty one boxes of evidence. I went through thirty of the boxes. There were the interviews and, at least, twenty to thirty CD’s. It’s difficult for anyone to remember exact dates. I can give months or dates, more or less, but I can’t be accountable to every date and time.”

I wondered if members of the jury remembered her saying fifty or sixty boxes of reviewed evidence was the number she had stated only days prior in testimony.  Jurors always note inconsistencies and one could be sure that the note-takers would have made a reminder of that in their juror notebooks, a detail to be saved later for deliberation purposes.

Juan would let her do that at times.  He would wait patiently, without interrupting her, allowing her to ramble on and on about things that had nothing to do with the question. I think he did this to show that if he didn’t force an answer, at some point, she would ramble on forever. I could have bet it was driving the jurors half insane to listen to her misdirection and mumblings.

“Would it be important to know when their relationship started, the relationship between the defendant

and Travis Alexander, and how it started?”

“Can you repeat the question, Mr. Martinez?

Juan moved on. “Do you think dates on documents are important?” he asks her.

“Well, Mr. Martinez, that misrepresents my response. You have to understand that the documents were

voluminous,” she responded, looking toward the Jury.

“Are you saying you can’t remember if a document is at the beginning or end of month?”

“No, I really can’t.”

Juan looks at her and crossed his arms on his chest. He had stopped pacing. “Didn’t you testify to dates

and times on documents?”

Dr. Fonseca, again, went into a litany of nothingness. They were thoughts spoken aloud that had no end. The Jury

looked at her but no one was taking notes. Even the second juror down was not taking notes and she could always

be relied on to be buried in her legal pad, pen scribbling.

“Your research experience is mostly of Juveniles, is it not?” Juan asked.

“No, Mr. Martinez. It is of all ages. The kernel of my research has a substantive base of juveniles but I

research all aspects of sexual deviancy and its relevancy in certain situations. There are times when one

must take this knowledge and work toward an identifiable goal…”

Juan paced back and forth while the witness stated nothing substantive.

Judge Stephens looked on in rapt interest, although there was not any difference in how she looked at Dr. Fonseca.  The jury would notice that the judge always showed great interest without regard as to who was on the witness stand.

I was in my seat taking notes but there are no notes to be taken on what she said because it is not only

subjective, it was undeniably repetitive. They were meaningless words and answers to questions never asked. I was

getting frustrated and I could bet the Jury was doing all they could do to avoid showing an expression of discontent.

“You created a risk assessment tool, did you not? You created MEGA?” Juan asks.

“Um, I don’t want to go down slime alley,” she answers as if Juan had asked some horrific and sleazy

question.

Juan showed no emotion despite Dr. Fonseca’s response. He was going in a direction. “Isn’t MEGA an acronym

for a very long term?”

“It’s complicated,” she answers. “It stands for Multiplex Empirically Guided Assessment. I just stick with the

term MEGA because I find that people can understand it and I don’t need to write it all the time because there is a kernel of reasoning that supports using other terminology.”

Juan has a look in his eye as if he is wondering when she will complete her thought and hoping it will be

sometime before lunch. “Your assessment involves juveniles from the age of four to nineteen?”

“Yes,” she answers.

“But Arias and Travis were not of that age, were they? Isn’t that assessment your specialty?”

“I wouldn’t use that tool,” the Doctor answered smartly.

I do not think it was a good idea for Dr. Fonseca to bring up “slime alley”,

Juan Martinez turned around and walked to the defense table.  He took a sip of water from a Styrofoam cup and slowly set it down.  He picked up two exhibits and put one on the screen.  It was the previously seen picture of Travis Alexander and Arias baptismal day with both of them wearing the sacred white robes of the church.

“I’m showing you Exhibit Number 393.  Can you tell us where this picture came from?” Juan Martinez asked, not moving from his spot by the projector.

Fonseca turned toward the jury.  “Once again, I can’t recall where every piece of information came from.  I cannot be expected to know what…”

Juan Martinez interrupted as he overlaid another picture on the projector.  I was sure I heard people react in the courtroom yet, somehow, the jurors faces remained without emotion.  “Let’s talk about Exhibit Number 394 and genitalia.”

The projector screens displayed the previously presented picture of a penis.

“Where did this picture come from?  Wouldn’t this be important before you make opinions?” he asked argumentatively.

“Mr. Martinez,” she answered falteringly.

“Or, Ma’am, wouldn’t it be important to know that these pictures came on the word of Arias?  Somebody told you it was of Travis Alexander, didn’t they?”

“May we approach,” Kirk Nurmi interrupted, standing up.

While the bench conference was happening, I happened to look up and see Arias as she turned back and looked at the three or four family members sitting in the front row.  She looked at them as if she did not understand what was going on and shrugged her shoulders.  She conveyed her innocent looking face.

“Ma’am,” Juan began, extending the open palm of one hand while slapping the back of his other hand on his open palm lightly, making a point, “You said you reviewed all testimony, documents and exhibits. Right?”

“Well, yes,” she answered.  It felt like she knew she was walking into a well set trap.

“You said you reviewed number 393 and 394, right?” he asked with a slap of the back of his hand on the other.

“I did,” she answered slowly.

“But you don’t remember whose genitalia the defendant told you it was?”

“I reviewed transcripts and testimony on You-Tube.  Perhaps,” she added, with a look toward the jury, “Mr. Martinez is confused.”  She rolled the “r” carefully again.

Juan ignored her comment.  “You interviewed the defendant twice?”

“Well, yes…”

“You talked about this photos, am I right?” Juan asked.  He did not move from the spot he was in.

“Yes. I got many documents after the interviews, though.”

“But, if they were important, you could have gone back and interviewed further, right?” Juan asked.

“I could have,” she admitted.

“So, they are important?” Juan pursued.

“Everything is important, Mr. Martinez.”

“And you chose to highlight 393 and 394.  What about the defendant’s naked picture?  Why didn’t we consider her picture with the other?  Wouldn’t that be important for an opinion?” he asked in rapid fire succession.

“That could be distasteful,” the Doctor answered, squirming in her seat.  “I mean collectively, maybe, but not individually.  I’m here to talk about the dynamics between Travis Alexander and Jodi Arias. Let’s not get distracted here…”

Juan walked to the prosecution table and took a sip of water from his cup again.  He offhandedly wiped his lip with the back of his hand, turned around and hesitated a moment before speaking, as if to reign his emotions and redirect to a different plateau of thought.  “You are here to as a psychologist to render an opinion, right?”

“I’ve already answered the question, Mr. Martinez,” the Doctor responded. She almost sounded like a spoiled kid.

“Your professional assessment of the defendant was that she was in love with Travis Alexander, right?”

“This was my feeling,” she answered.

“In your documents, you are aware that the defendant attended the victim’s memorial service?” Juan asked. He began pacing in short segments back and forth.

“Yes,” she answered carefully.

“And on the way back from Sacramento, she met Nick. They exchanged phone numbers? You do remember that, don’t you?”

“Um, I don’t recall the specifics,” she answered pensively.  “I don’t have a specific memory of that.”

“Is that your view of love?”

“An exchange of a phone number doesn’t show a romantic connection,” she sidestepped.  “That is not anything out of the ordinary and I am not sure I can read anything into it…”

“So, you do not consider that the defendant was at the memorial service of her dead boyfriend and exchanging phone numbers with someone else afterwards as something important in your opinion?” Juan asked, a voice of common sense seemed to resonate to the members courtroom but eluded the witness.

“It was an innocuous exchange,” she responded, defiance in her voice.

Juan hesitated before speaking.  He stopped pacing and turned to look at her.  “As a psychologist, you have lost your objectivity, haven’t you?”

“I’m not saying anything,” she answered.

“May we approach?” Kirk Nurmi asked without voicing a stated objection.  He did this quite often.  He would ask to approach without an objection or reasoning behind it.  It struck me that my judge, the Honorable Roland Steinle III, from the death penalty case of Marissa DeVault, would not allow the attorneys to interrupt without those two rules being followed.

At another point, we read the texts between Travis and Arias pointing to the one where Jodi wanted to be a

little girl for him. We got to listen to Arias reach orgasm on a tape. We read more dirty emails. Dr. Fonseca, at one point, said that people might find these things as distasteful but collectively, it would not mean the same thing.

I scratched my head while writing it down.

“You are here to give your professional Psychological opinion, is that correct?” Juan asked.

“Well, I’m not licensed to do that in this state,” she answers carefully. “I have limitations to what I can…”

“But didn’t you give an opinion on what you thought was going on between Arias and Travis?” he asked.

“I’ve answered the question,” she said smartly.

“So you are not going to answer?”

The sequence that followed was repetitive and jerky: Sidebar. Dirty Jodi Arias text message. Sidebar. Dirty picture on the screen. Sidebar. Another question. Sidebar. Banter. Rambling.  Sidebar.  Still, Dr. Fonseca had managed to say nothing of substance the length of the day. She was like a caged animal going in circles while Juan Martinez toyed with her. He would poke at the cage and she would go in another circle in her cage.

Juan attacked and she deflected.

Every time she said “Martinez” with the roll of the “r”, it got on my nerves just as it would with the jury.

I watched the Jury the whole day and by early afternoon, no one was taking any notes. Juan’s questions destroyed her credibility. Her fact finding didn’t exist. Her memory was wishy-washy, at best.  Dr. Fonseca would show anger and contempt by responding with such statements as “I couldn’t be expected to know everything.”

It was interesting that she could remember all the details of the Mormon Church when she had been a witness

for Kirk Nurmi and the defense team only days before. It was odd that she thought nothing of sequencing and the

importance of dates such as the fact that the alleged behavior of Travis came out long after he had been murdered, only supported by the words of Arias. It was bizarre that suddenly nothing had anything to do with the dynamic of their relationship.

Dr. Fonseca was combative and hostile throughout the day. She had memory problems. She couldn’t

understand what Juan Martinez was driving at. She looked at the Jury as if to receive empathy for her

position but only saw stoic faces in return.

Juan Martinez continued his tirade unrelentingly. He never let up. He never showed sympathy and

he never apologized. He attacked like a shark coming out of water.

Her opinions had been laid on the floor, bleeding and squirming.

The Jury saw all of this. I know they tired of it deep in the afternoon as I saw jurors rubbing their eyes.

Another juror straightened a crook in his neck. One reached over and got a glass of water from in front of

her. Others had their heads facing the witness but their stares were blank. I saw a couple of jurors sneak a look toward the clock that is behind us.

We wrapped up for the day as Dr. Fonseca sat reading a document for fifteen minutes in open court while Juan Martinez waited. She purportedly claimed she had not seen it in her voluminous search of documents and read it to herself while the courtroom all watched and waited. Scant coughs could be heard about the courtroom. It was almost comforting because nobody wanted to hear any more from her.  It was akin to mental torture.

Judge Stevens looked at the witness and waited while Dr. Fonseca licked the tip of her finger and slowly turned the pages.

At 4:30, Judge Stevens called it a day.

Juan Martinez walked back to the prosecution table and began gathering his things.  He looked at the family of Travis Alexander and nodded at them.  He had put on a valiant effort and his voice had been that of Travis Alexander throughout the battle with the psychological expert.  There would be some comfort in that for many.

On the way home, I was trying to think of who Dr. Fonseca reminded me of…

Of course, I thought, she reminded me of a time a year and a half earlier when Jodi Arias had taken the stand to defend herself in the first trial in 2013.  Arias’ memory had gotten progressively and distinctly foggier, too.

In either case, not one bit of their testimony helped the defense.

At all.

 

 

“Every good relationship that has developed as a result of this trial is the

manifestation of the Spirit of Travis Alexander.”

 

Justice 4 Travis Alexander…

 

Justice for Dale Harrell…

 

Paul A. Sanders, Jr.

The 13th Juror @The13thJurorMD (Twitter)

Comments

comments