IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KPNX-TV CHANNEL 12, a division of Multimedia Holdings Corporation; 

PHOENIX NEWSPAPERS, INC.; MEREDITH CORPORATION d/b/a/ 

KPHO-TV; KTVK-3TV, Petitioners,

v.

THE HONORABLE SHERRY STEPHENS, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge,

STATE OF ARIZONA; JODI ANN ARIAS, Real Parties in Interest.

No. 1 CA-SA 14-0213

Petition for Special Action from the Superior Court in Maricopa County

No. CR2008-031021-001

The Honorable Sherry K. Stephens, Judge

JURISDICTION ACCEPTED AND RELIEF GRANTED

COUNSEL

Ballard Spahr LLP, Phoenix

By David J. Bodney, Christopher Moeser, Brunn W. Roysden III

Counsel for Petitioners

Maricopa County Attorney’s Office, Phoenix

By M. Colleen Connor, Anne C. Longo, Juan M. Martinez

Counsel for Real Party in Interest State of Arizona
2

Law Office of L. Kirk Nurmi, Phoenix

By L. Kirk Nurmi

Willmott & Associates PLC, Phoenix

By Jennifer L S Willmott

Co-counsel for Real Party in Interest Jodi Ann Arias

OPINION

Judge Maurice Portley delivered the Opinion of the Court, in which 

Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.

P O R T L E Y, Judge:

¶1 Petitioners, who are members of the broadcast and print 

media, challenge a ruling closing the penalty phase of a capital murder trial 

to the press, as well as to the public. As a result, we must decide whether a 

“clear and present danger” exists under Arizona Rule of Criminal 

Procedure (“Rule”) 9.3 that justifies excluding the press and public during 

portions of the penalty phase of the trial. 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.

SPECIAL ACTION JURISDICTION

¶2 We have discretion to accept special action jurisdiction when 

a party does not have a plain, adequate, or speedy remedy by appeal. See

Ariz. R.P. Spec. Act. 1(a); Patterson v. Mahoney, 219 Ariz. 453, 455, ¶¶ 2, 5, 

199 P.3d 708, 710 (App. 2008) (accepting special action jurisdiction to 

interpret criminal procedure rules). Because Petitioners do not have any 

other mechanism to challenge the ruling, we exercise our discretion and 

accept jurisdiction. See Phoenix Newspapers, Inc. v. Superior Court, 140 Ariz. 

30, 32-33, 680 P.2d 166, 168-69 (App. 1983).

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Jodi Arias was convicted of first degree murder, but after the 

jury was unable to reach a verdict on the penalty, the superior court 

declared a mistrial of the penalty phase of the trial. A new jury was 

empaneled to consider evidence in the retrial of the penalty phase. The 
KPNX v. HON. STEPHENS/STATE

Opinion of the Court

3

court was subsequently advised that Arias wanted to testify in mitigation 

outside the presence of the press and public and asked the court to seal the 

transcript of the testimony. 

¶4 After argument in chambers, the trial court granted the 

motion. In open court, the court announced the ruling by stating the “next 

witness will not testify unless these proceedings are closed to the public.” 

The court found that the witness was necessary for the mitigation portion 

of the trial’s penalty phase, and that closing the courtroom was necessary 

for the administration of justice and was no broader than necessary given 

Arias’ overriding and compelling interest in presenting mitigation 

evidence. The court then closed the courtroom proceedings to all except 

the family of the victim, and sealed the testimony of Arias until after a 

verdict.

¶5 Several publishing and broadcasting entities unsuccessfully 

objected to the ruling, and Petitioners subsequently filed this special action. 

Petitioners also sought to stay the ruling closing the courtroom and, after a 

hearing, this court granted a stay. 

DISCUSSION

¶6 Petitioners argue that the ruling closing the proceeding to the 

press and public violated the First Amendment to the United States 

Constitution.1 Arias, however, contends that the ruling properly protected 

her rights under the Fifth, Eighth, and Fourteenth Amendments to the 

United States Constitution. Although the Arizona Constitution provides 

that cases “shall be administered openly,” Ariz. Const. art. II, § 11; see also

Ariz. Const. art II, § 24 (an accused is entitled to a speedy public trial), we 

need not resolve the dispute on constitutional grounds if “other principles 

of law are controlling and the case can be decided without ruling on the 

constitutional questions.” In re United States Currency of $315,900.00, 183 

Ariz. 208, 211, 902 P.2d 351, 354 (App. 1995).

¶7 We review the interpretation of statutes and court rules, and 

constitutional rules de novo. Fragoso v. Fell, 210 Ariz. 427, 430, 432, ¶¶ 7, 13, 

111 P.3d 1027, 1030, 1032 (App. 2005). We interpret rules of criminal 

procedure by applying the principles of statutory construction and first 

look to the plain text of the rule because that is “the best and most reliable 

index of [the rule’s] meaning[.]” State v. Hansen, 215 Ariz. 287, 289, ¶ 7, 160 

P.3d 166, 168 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser,

 

1 The State also opposes closing the proceedings to the press and public. 
KPNX v. HON. STEPHENS/STATE

Opinion of the Court

4

214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (2007)). Where issues involve mixed 

questions of fact and law, we defer to the court’s factual findings unless 

clearly erroneous, but review the legal conclusions de novo. See State v. 

Gonzales-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). And 

“[b]ecause the value of the public trial guarantee to the judicial system is 

incalculable, we carefully scrutinize any trial court order that denies, 

restricts or limits” a public trial. Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 

P.2d 1306, 1308 (1994).

¶8 It is undisputed that the public has a constitutional and 

common law right of access to observe court proceedings. Id. “Courts are 

public institutions[] [and] [t]he manner in which justice is administered 

does not have any private aspects.” Phoenix Newspapers, Inc. v. Superior 

Court In & For Maricopa Cnty., 101 Ariz. 257, 259, 418 P.2d 594, 596 (1966). 

The exclusion of the public, therefore, “is an extraordinary measure and 

should be done with caution[,]” State v. Atwood, 171 Ariz. 576, 633, 832 P.2d 

593, 650 (1992) (quoting State v. Bush, 148 Ariz. 325, 330, 714 P.2d 818, 823 

(1986)) opinion modified on denial of reconsideration (July 10, 1992) disapproved 

on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001), 

especially when requested by a defendant and “would take from the public 

its right to be informed of a proceeding to which it is an interested party,”

Phoenix Newspapers, Inc., 101 Ariz. at 259, 418 P.2d at 596. 

¶9 Although Arizona’s constitution directs that criminal 

proceedings be open, our supreme court, following the guidance of the 

United States Supreme Court, has determined that the public may be 

excluded from a criminal trial if there are circumstances which “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.” Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 

557, 560, 490 P.2d 563, 566 (1971) (citing Thomas v. Collins, 323 U.S. 516 (1945) 

and Bridges v. California, 314 U.S. 252 (1941)). Our supreme court defined 

clear and present danger to “mean[] that the substantive evil must be 

extremely serious and the degree of imminence extremely high.” Id. (citing 

Bridges, 314 U.S. at 252). As a result, the right to an open, public trial is not 

absolute, but a trial court must balance the right to a public trial against 

other interests that might justify closing a courtroom to the public. State v. 

Smith, 123 Ariz. 243, 249, 599 P.2d 199, 206 (1979) (closing the courtroom to 

the public but not the press when the rape victim testified). 

¶10 The definition of clear and present danger in Phoenix 

Newspapers, Inc. v. Jennings was subsequently adopted in Rule 9.3(b). See

comment to Ariz. R. Crim. P. 9.3(b). The Rule provides as follows: 
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Opinion of the Court

5

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. A complete record of any closed 

proceedings shall be kept and made available to 

the public following the completion of trial or 

disposition of the case without trial.

Ariz. R. Crim. P. 9.3(b) (emphasis in text added). Stated differently, the 

court can close a proceeding at the request of a defendant only when the 

public proceeding would create a clear and present danger to the 

defendant’s right to a fair trial with an impartial jury. 

¶11 If the court finds a clear and present danger, the court must 

then consider four constitutional factors before closing the proceedings; 

namely, the party seeking to close the hearing must advance an overriding 

interest that is likely to be prejudiced; the closure must be no broader than 

necessary to protect that interest; the trial court must consider reasonable 

alternatives to closing the proceeding; and the court must make findings to 

support the closure. Waller v. Georgia, 467 U.S. 39, 48 (1984); see also State v. 

Tucker, 231 Ariz. 125, 132-33, ¶¶ 9-13, 290 P.3d 1248, 1255-56 (App. 2012)

(discussing Waller and noting that “the Waller test applies to both complete 

and partial closures of Arizona criminal trials”). Waller is a reminder that a 

public trial is for the benefit of the public and a defendant, and the presence

of the public may keep the judges, lawyers, witnesses and jurors “keenly 

alive to a sense of their responsibility and to the importance of their 

function[.]” Waller, 467 U.S. at 46.

¶12 During the proceeding to resolve Arias’ motion to exclude 

spectators and seal the proceedings, her lawyer stated Arias 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” to “fully 

actualize her mitigation.” 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.”
KPNX v. HON. STEPHENS/STATE

Opinion of the Court

6

¶13 After considering the State’s objection, the court conducted 

the Waller analysis and determined that completely closing the proceeding 

to the public was not necessary. The court suggested that the press and 

public be moved to the overflow courtroom to view the trial. Arias was 

advised of the ruling, and Arias subsequently advised the court that she 

would not testify if the press and public could know how she testified 

“because of the pressure that I would feel because of these threats.” 

Although expressing concern that Arias was being manipulative, the court 

stated it had considered the potential legal ramifications if an appellate

court later determined that Arias did not voluntarily waive her right to 

present evidence in mitigation. As a result, the court closed the proceeding 

for Arias’ testimony. 

¶14 Although the court did not specifically find a clear and

present danger to a fair trial before an impartial jury, we infer the court 

considered Arias’ refusal to testify in a public proceeding and its potential 

legal implications to be a clear and present danger. We disagree with the 

implicit finding, however.

¶15 Despite Arias’ belief that the public reaction to her testimony 

would inhibit her ability “to present a full and complete case for her life,”

her concerns do not demonstrate the existence of a clear and present danger 

that would impede her right to a fair trial with an impartial jury. See State 

v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007) (concluding that there was no 

specific evidence that a witness was threatened or intimidated or the 

specific nature of the threat or intimidation). In fact, in Press-Enterprise Co. 

v. Superior Court, the Supreme Court recognized that criminal cases may

“provoke public concern, outrage, and hostility[,]” but “[w]hen the public 

is aware that the law is being enforced and the criminal justice system is 

functioning, an outlet is provided for these understandable reactions and 

emotions.” 478 U.S. 1, 13 (1986) (internal quotation marks and citations

omitted). As a result, while we do not discount the volume or nature of 

Arias’ mail or the fact that some people may wish her ill, her concern does 

not, as a matter of law, amount to an extremely serious substantive evil

warranting closing the trial to the public and press. 

¶16 We recognize the trial court did not make the ruling lightly. 

However, even if Arias decides not to testify in open court, her lawyers or 

the State can present evidence from the guilt phase trial or the earlier 
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Opinion of the Court

7

penalty phase trial that could be considered to be mitigation.

2 A defendant 

who testified in open court during the guilt phase of the trial cannot decide 

she will only testify in the penalty phase if the press and public are excluded 

and her testimony is sealed until after any verdict. Neither the rule nor case 

law envisions that her concerns amount to a clear and present danger to a 

fair trial before an impartial jury. See Phoenix Newspapers, Inc., 101 Ariz. at 

260, 418 P.2d at 597 (noting that it “is clear that a defendant has no right to 

a secret trial”).

¶17 The trial court correctly found that there was an alternative to 

closing the trial—having the press and public view her testimony from a 

different courtroom. Although Arias balked at the alternative, she has not 

demonstrated a clear and present danger to a fair trial with an impartial 

jury. Consequently, we grant Petitioners’ request for relief and vacate the 

ruling allowing Arias to testify with the courtroom closed to the public and 

press.

3 

CONCLUSION

¶18 We accept special action jurisdiction, grant relief to 

Petitioners by vacating the ruling closing the proceedings to allow Arias to 

testify and temporarily sealing the transcripts of the October 30 hearing. 

Furthermore, if Arias began to testify in a closed proceeding, those 

transcripts shall be unsealed.

 

2 Although Arias argued to the trial court that her refusal to testify might 

not be voluntary, nothing in the special action record reflects that she will 

waive her right to present any mitigation if the proceedings are not closed. 

Cf. State v. Hausner, 230 Ariz. 60, 84-86, ¶¶ 116-22, 280 P.3d 604, 628-30 

(2012).

3 Because we have resolved the issue on non-constitutional grounds, we 

need not address the constitutional arguments. See State v. Korzuch, 186 

Ariz. 190, 195, 920 P.2d 312, 317 (1996).