Tag Archives: procedural due process

Arizona Stalking Law

The internet makes people and things more accessible. This can be both good and bad. It can be a bad thing when people make reckless and threatening remarks.

David Lee Simpson is charged with felony stalking and computer tampering. Allegedly while following the Jodi Arias trial that was plastered across television and internet, Mr. Simpson became infatuated with Arias. When Turner Broadcasting anchors Nancy Grace and Jane Valez-Mitchell made critical statements about Arias, Mr. Simpson became angered and threatened to kill the television anchors via twitter.

Mr. Simpson is charged stalking via the internet. CR 2013-002709. Mr. Simpson has pleaded not guilty to all the charges, and should be presumed innocent until proven guilty. This blog post uses Mr. Simpson’s situation to look at the laws of Arizona. In no way, does this blog post intend to convey any innocence or guilt upon Mr. Simpson.

Arizona Aggravated Stalking, Ariz. Rev. Stat. § 13-2923.

There are two different classifications of stalking in Arizona. Both require that a person knows or intends action toward another person. Where the two diverge is the lesser charge just requires a person to fear for their safety. The more harsh one requires that a person fear for his or her life.

Would cause a reasonable person to fear death of that person or that person’s immediate family member and that person in fact fears death of that person or that person’s immediate family member.

Ariz. Rev. Stat. § 13-2923(A)(2).

The alleged facts of this case are interesting in jurisdictionally.


It is alleged that David Lee Smith was in New York when he made threats via Twitter. Both Nancy Grace and Jane Velez-Mitchell work for the HLN network which is a subsidiary of CNN. Like CNN, HLN is based in Atlanta, Georgia. However, Grace and Velez-Mitchell were working in Phoenix while providing commentary on the Jodi Arias trial. These are two pics that I took of the HLN filming in downtown Phoenix. As the viewer can see, the filming occurred middle of downtown. In the second picture I believe that is Jane Valez-Mitchell interviewing one of the audience members.

HLN Jodi Arias HLN-2

The charges are being brought in Maricopa County because that appears to be where Nancy Grace and Jane Valez-Mitchell were when at least some of the threats occurred. Consequently, procedural due process may be violated because he was nowhere near Arizona when he made the threats, but he will tried in Arizona.

There are basically two parts to the Arizona stalking law: 1. intentionally or knowingly committing acts; 2. a person is fearful because of the intentional acts. Simpson was allegedly in New York when he made the threats on twitter, while the persons fearful were across the United States (literally) in Phoenix Arizona.

I am not sure if a state criminal law can be applied across multiple states. It is not like both parts of the stalking law occurred in Arizona and then a defendant fled the jurisdiction. Then the crime clearly occurred where the law will be applied. In this present case, the law is being applied to an act done while in New York had intentional effects on two women working in Arizona.

The issue becomes whether Arizona can apply a state criminal law to an act committed in New York that intentionally effected two women working in Arizona.

In the realm of civil law Arizona’s long-arm statute, Ariz. R. Civ. Pro. 4.2(a), allows for residents of other states to be sued in Arizona courts “to the maximum extent permitted by the Constitution of this state and the Constitution of the United States.”

There is not an equivalent for criminal proceedings. This might be an issue of first impression for Arizona courts.

A strong argument for the prosecution to bypass the procedural due process argument is in the state Constitution. The Arizona Constitution grants power to state courts, Ariz. Const. art. 6 § 14 creates the jurisdiction for superior courts throughout the state. Arizona Superior Courts can hear “cases and proceedings in which exclusive jurisdiction is not vested by law in another court.” The defense would have to show that another court has exclusive jurisdiction over the case. That is a tough burden to meet. It could be argued that New York should have jurisdiction because the words were actually typed on a keyboard there. However, that does not meet the exclusivity requirement.

The defense could likely argue there is no clear connection made with Arizona (unless the posts have some sort of geographical quality to them — I have not read the complaint). “Foreseeability is only relevant if a nonresident defendant has made knowing and intentional connections with the forum state such that it would have ‘clear notice that it [would be] subject to suit there.'” Rollin v. William V. Frankel & Co., Inc., 996 P.2d 1254, 1260 (Ariz. Ct. App. 2000) quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The internet by its very nature is not confined to a single jurisdiction — it is a universal, trans-national phenomenon. The prosecution would likely have to prove Mr. Simpson’s behavior would have a foreseeable impact in Arizona.

This will be a really interesting legal issue and be a fairly novel one too, if argued.



Death Penalty Discrimination – Part 3 Procedural Due Process

This is the third part of a series of blog posts discussing how courts handle claims of discrimination in death penalty proceedings.  This post will look at it from a procedural due process point of view.

As noted in Part 1 of this series of blog posts, I discussed how there are two different systems for adjudicating discrimination.  The question raised in a procedural due process analysis: is the existence of two different systems of adjudicating claims of discrimination fundamentally fair?

This analysis may seem to be similar to the equal protection analysis and in many ways there is overlap.  Equal protection analysis seems to be more concerned about the end result.  Whereas, procedural due process is more concerned about the steps that are taken, the process, rather than the end product.

The rules are meant to facilitate fairness and impartiality.  Procedural due process is a right guaranteed in the Fourteenth Amendment of the Constitution that when Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.In other words, procedural due process can be summed up as “our fundamental guarantee of fairness.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 589 (1972) (Marshall, J., dissenting).  Since the process for determining claims of discrimination different from the death penalty proceedings to every other type of proceedings then there may be a procedural due process violation.

In the death penalty context, there is only one step and it uses a higher threshold to prove the discrimination.  With life on the line (it is a death penalty proceeding) it does not make sense for the standard to be more rigorous.  The reason why there is a heightened burden in the criminal system than in the civil system is because society collectively believes it is “far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring). For the judicial system to isolate only discrimination in death penalty proceedings goes against our fundamental societal beliefs.  Especially, when the punishment is irrevocable, it is of the utmost importance for the procedure to be fair.

Procedural due process is not invoked upon every procedural issue.  “Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).   When a claim of discrimination is made in the judicial system, it not only implicates the defendant, but the community at large. Batson v. Kentucky, 476 U.S. 79, 87 (1986) (stating “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community”).

The goal of procedural due process is to protect the wrongful deprivation of interests through fair procedures.  In discrimination claim in the death penalty process, procedural due process is meant to ensure that life and liberty of defendants is protected via a fair proceeding.

Part 1 – Different Systems for Discrimination

Part 2 – Equal Protection

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.

Death Penalty Discrimination – Part 1 Different Systems

“Capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

Ever since the death penalty was reinstated nationally in Gregg v. Georgia, 428 U.S. 153 (1976), it seems there is always some debate about whether or not the death penalty is applied in a discriminatory manner.  There are on-going discussions whether the death penalty is applied disproportionately against certain races or sex.

Without taking a stance as to if the system currently discriminates or not, I argue in my paper “Correcting a Fatal Lottery” that the system for adjudicating discrimination claims in the death penalty is unconstitutional.  I argue that there are two different systems of adjudicating discrimination: one for the death penalty and another for every other type of discrimination claim.

In the death penalty context, claims of discrimination use the evidentiary standard of  “exceptionally clear proof.”    McCleskey v. Kemp, 481 U.S. 279, 292 (1987).  Whether there is exceptionally clear proof of discrimination is argued in a single step.  Both sides make their arguments and the judge then makes her determination.

Every other type of discrimination – employment discrimination, housing discrimination, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws, and discrimination in jury venire – are decided with a burden shifting system using the preponderance of the evidence standard.  The burden shifting standard allows the judge to organize evidence so it can be more easily digested.  The preponderance of the evidence standard is which ever side has the more convincing evidence shall win. See e.g. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (employment discrimination in a mixed-motive case); Lindsay v. Yates, 578 F.3d 407, 421 (6th Cir. 2009) (housing discrimination); Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000) (reverse-racial discrimination) etc.

Is it just that claims of discrimination in administering the death penalty not only use a different system, but one that is much more rigorous?

My assertion in the paper is that with a defendant’s life on the line, the judicial system should not impose more strict measures to prove discrimination occurred.  If discrimination occurs then it is a flaw within the justice system.  We have all seen the pictures of where Lady Justice is blind.  If a person is being treated differently because of her sex or her skin color then Lady Justice is not administering proceedings with impartiality.  No matter what the crime a person is accused of, justice should be administered fairly and impartially.

This is the first of a  series that I will use to break down the argument of my paper detailing the differences in how the courts judge discrimination and why it is unconstitutional.

The race of the victim has been shown to be statistically significant in several studies.  Racial Discrimination and the Death Penalty in the Post-Furman era (full text). Prosecutorial Discretion in Requesting the Death Penalty (abstract only).

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.