Michael Dunn’s sentencing must be continued to avoid constitutional error

Tuesday, March 11, 2014

Good morning:

Judge Russell Healey said yesterday that he will announce his decision on Friday, regarding the defense motion to continue Michael Dunn’s sentencing until after the retrial of the murder charge.

For the following reasons, I believe he must grant the motion to avoid constitutional error.

Briefly in review, the jury convicted Dunn of three counts of attempted second-degree murder and one count of shooting into a vehicle. It hung 9-3 in favor of convicting him for shooting and killing 17-year-old Jordan Davis.

Dunn was represented at yesterday’s hearing by his trial counsel, Cory Strolla, who is withdrawing because Dunn is out of money. He will be replaced by a public defender.

He argued that the sentencing must be continued because anything Dunn says at his sentencing can be used against him at the retrial.

The prosecution has objected to the continuance on the ground that Dunn has waived his right to remain silent by testifying at trial.

Although the answer is relatively simple, Judge Healey appears to be struggling a bit with this motion.

Let’s break it down :

The Fifth Amendment states in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

First, as long as Dunn remains in legal jeopardy of conviction on the murder charge, he can assert his right to remain silent, even if he has previously testified.

Second, Dunn also has a right to allocution, which means he has a right to be heard before the court imposes the sentence.

Third, if he exercises his right to allocution, he sacrifices his right to remain silent. He cannot be compelled to make that choice and that is the precise problem he faces.

Therefore, Judge Healey should grant the defense motion.

I am surprised that the prosecution has failed to see this issue.

My question for Angela Corey is why build constitutional error into the record at this point? Dunn is not going anywhere.


This is our 928th post and donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

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57 Responses to Michael Dunn’s sentencing must be continued to avoid constitutional error

  1. breelee says:


    I didn’t know if this horrendous piece of crap had been shared. My gawd will this man ever go away? When he said there are kids who ask him to be their mentor, I threw up a little. What, do they have a death wish? Only good thing about this, is he must be having a hard time. We can only hope. Loved the comments at the bottom of this article. haha

    • Trained Observer says:

      Amazing, huh? Fogen still seems to be fixated on the notion that his parents are hot shit, and therefore he must be important as well. Reality is Gladass and Boobles are nobodys who knew a few somebodys who pulled strings for whenever he got his ass in a jam.

      The mentoring part is such a joke. Only bright spot is that the State of Florida defunded the program where he was mentor. No mentoring program is better than one where the likes of Fogen are involved. Love the Grind comments.

  2. Trained Observer says:

    Lurker — Am not certain that anybody has ever said the Z-house was standing empty. Likely they are renting it, if only seasonally. Lots of properties like that are only occupied in winter.

    • Trained Observer says:

      Roseanne’s legal team will have a ball with this public info … along with the fact that Gladass and Boobles moved out after Trayvon was shot dead but before Roseanne’s tweet.


      • Yep, an annoying but rather significant fact.

        How can the tweet be the proximate cause of harm when they had already moved out?

      • Figures that a trained observer would notice an inconvenient fact like that.

      • MKX says:

        Cry me a river, Papa Z.

        It is quite apparent that liar lair pants on fire is a tradition in that family, unless we forget how Papa Z told us that Sweet George was in the process of preparing a nice Sunday dinner for his wife when he had the misfortune of encountering Trayvon.

        • Diamonique says:

          Would that be the wife that left him the day before, iirc?

          • MKX says:

            Yes, a virtual dinner for a wife not home. Kind of like all that fake dialog he made up about his encounter with Trayvon. But it seems that the apple does not fall far from the tree. Papa Zimmerman plays victim and also throws shit on the wall hoping some will stick. He sent a letter explaining how his family could not possibly be racist. One need only look at his book to see how not true that is. Or the writings of his other son. Or the great tomes from that awesome friend, neighbor and mentor – Frank Taffe.

            I grew up around some hard criminals, devout racists and other just nasty people. At least they owned up to what they are. So one could act accordingly. The Zimmerman clan, on the other hand, are the lowest scum on the totem pole of life – lying grafters.

            And the trial showed me that there are others in that part of Florida just like the Zimmermans. They live up to that line form any one of those many Westerns where the American Indian states that the white man speaks with a forked tongue.

            But, then again, being comfortable with denying that racism exists in the USA requires lying to one’s self on a daily basis.

  3. Thrace says:

    Robert Sr claimed in his March 15th letter (Barr’s tweet was March 29th) they had moved becaused of death threats. Someone should alert Barr to this article.

    Zimmerman’s father, 64-year-old Robert Zimmerman of Lake Mary, delivered a one-page letter to the Sentinel on Thursday, saying that the depiction of his son in the media has been cruel and misleading.

    George Zimmerman has not talked publicly about what happened, his father said, because that’s the advice police gave him. Both Zimmerman families have moved out of their homes, at least temporarily, Robert Zimmerman said, because they’ve received death threats.


  4. sherna lee says:

    The Zimmermans have sued Roseanne Barr

    • You beat me to the punch, but I have the linkie.

      The suit is for unspecified damages against Roseanne Barr for publishing their address on Twitter.

      They claim they have never been able to return.

      I’m really sick and tired of this family of racist grifters.

      • sherna lee says:

        fogens new lawyer has an new Zimmerman interview

      • Trained Observer says:

        The Zimmerman address for property they owned is (and was) public information. At worst, Barr shared what already was available to anyone with enough minimal savvy to know where to look … ie the county property appraiser’s website. Hope Barr stands firm and lets those grifters (or their attorney) waste money they allegedly don’t have on this worthless suit. If they’ve not returned to the residence, it’s likely because neighbors would turn up their noses at the very sight of them.

        • Thrace says:

          Wouldn’t they have made themselves public figures when Robt Sr hand delivered a letter to the Orlando Sentinel and gave an interview to Fox Orlando? Those two events happened before Barr’s tweet.

          • Trained Observer says:

            Don’t know about what denotes being a public figure. .. But definitely their property address was/is public info.

          • Unlikely, but possible.

            As TO pointed out, the address is a matter of public record and not a secret.

            Also, they will need to demonstrate that credible threats were made and they acted reasonably in response to those threats.

            I doubt they received any threats.

            This lawsuit appears to be founded on invasion of privacy and the emotional-distress tort of outrage. I think they are going to have a tough time proving it.

            More significant for them is they will have to submit to psych evaluations by defendant’s experts. Sensible people don’t like that experience.

          • Rachael says:

            It may be, but still. I don’t think what I am going to say will be popular here, but I do think Roseanne was wrong to do what she did. And as much as I hate the Z’s and their begging, I do think they should be compensated something in this case. Just because their address was public record, doesn’t make it okay. Just because you “can” do something, doesn’t mean you should. My address is public record too, but I would really be upset if someone tweeted it out with the intent to incite violence. Also, I’m not sure if public information or not, it is allowed to be tweeted out like that. But again, I do believe the intent was to incite violence and harm. I mean, it obviously was NOT a joke. I would feel threatened and move too. Whether they actually received threats or not, I don’t know, but if it were me, I wouldn’t stick around to find out.

            When Spike Lee did it, giving out the wrong address, he made amends. She should too, regardless of how I feel about the zims.

            Sorry, but RB was just wrong.

          • Trained Observer says:

            Rachel — Spike Lee made amends because he gave out an entirely wrong address for an elderly couple totally unrelated to this slimeball family.

            Keep in mind that Junyer, Bobbles Sr. and Gladass have gone out of their way to pull strings on behalf of their killer son since the very night of Trayvon’s murder. Senior published a book of tripe. Gladass wen’t on TV while hiding her mug. and don’t get me started on Junoooor.

            Roseanne tweeting where these disgusting whining parents (who also lied on thes stand, you’ll recall) own residential property is nothing other than sharing public information.

            Hopefully, Barr will file a countersuit that will cost them a pretty penny. Or at the very least, with her comedic skills, she can transform the entire Zimmerman clan into butt joke of this millennium.

          • Trained Observer says:

            BTW Rachael — Public information on residential property ownership isn’t just an address (as with a phone book for renters). Public info includes when the Z’s bought their place, who they bought from, how much they paid, who their neighbors are now and who they were, how much tax they’ve paid in recent years (there’s a discount for paying early), whether they are homesteaded (there’s a cap on tax appreciation on that, but if they aren’t living there and/or are renting it out, they lose that privilege), how many square feet the living space is, how many square feet the lot is, and on and on. Aerial views are often available, and some Florida counties are now including frontal views as well that often show vehicles with in carports. Depending on your view, Florida home ownership has its plusses and minuses.

            If the Zimmermans aren’t living at their property, their neighbors are likely thrilled and possibly thankful to Rosanne and all the other tweeters and retweeters. Nobody wants scum like that dragging down their neighborhood.

          • Rachael says:

            Well then we have to agree to disagree. What she did was wrong, just plain wrong. Yes, Spike Lee gave the wrong address, but just because she gave the right address, doesn’t make what she did right. I know what public information is – don’t act like I am stupid. But when they bought their house, the size of the lot, the taxes – all of that has nothing to do with it. She gave out that address with intent to inflict harm. And if I were a neighbor, I would NOT be thrilled at the thought of an angry mob coming into my neighborhood because a celebrity (a REAL celebrity – LOL) behaved a fool on twitter. I’m sorry, but there is no way you can, in my mind, make this right. It is not like saying everyone go to the Starbucks on 24th street and stand there but don’t buy coffee. But whatever. I hate the zims and all they stand for, but Roseanne was still wrong.

          • I agree that it’s wrong to post a person’s address on the internet, but that’s unlikely to be a relevant legal issue.

            Depending on the causes of action alleged in the complaint, I believe the disputed legal issues will involve the mental-state element that must be proven and whether posting the address was the proximate cause of the damages they claim to have incurred by moving out of their home.

            I doubt they were ever in any danger.

          • Rachael says:

            If nothing else, think of how you would feel if your kid had done something awful – say like that dad of the Sandyhook shooting, and a celebrity put your address out there? Like them or not, they didn’t do anything. He didn’t live there, his parents didn’t shoot anyone. They are disgusting, horrible people (and I use the word people loosely here), but what she did was wrong. Her making a threat like that is really no different than GZ not paying attention and being a vigilante. Neither GZ nor his parents deserve anything from anyone, but likewise, his parents did not deserve that. As much as it hurts me to say it.

          • Trained Observer says:

            Am not sure what “threat” Roseanne is alleged to have made. Am looking forward to her having the last laugh on the silly suit by the attention-seeking Boobles Senior and Gladass.

          • lurker says:

            Oh, please, please, PLEASE let them submit to psych evaluations for the public record!

          • lurker says:

            Agree that Roseanne Barr’s tweet was ill-advised. As was the one in which GZ advised his supporters to call the Majestic–and published the wrong phone #–about the gun show cancellation. But, not everything stupid or ill-advised is illegal.

        • lyn says:

          I am a big fan of Roseanne and still watch her reruns, however, like Spike Lee, I think she will be paying out the ying yang for tweeting their address and threatening to do it again. She will be settling out of court too.

          • Thrace says:

            I think she’ll settle with them on legal advice to make it go away. Not that I think the Zim’s could win any big bucks – they’ve been playing the death threats and we are in hiding card with the media before the New Black Panthers bounty, Spike’s or Roseanne’s tweets even happened.

          • Thrace says:

            What’s ironic about it is every crime board and a lot of other forums had already fleshed out the family details and other information such as addresses. In fact, weeks before Spike’s or Roseanne’s tweets – so it was old news by that point.

          • Trained Observer says:

            I think Roseanne will eat up the publicity, get a good ride out of it (for whatever her current project might be) , and then spit out this grifter family’s lawsuit like it was so much tripe.

            (Can’t help but recall when the Texas cattlemen took on Oprah over whatever she’d said about hamburger. They thought they’d show her a thing or two, and that she’d cough up a big settlement. Instead she brought in Phil MacGraw as a consultant (before he became Dr. Phil), let her lawyers loose and WON in a highly publicized court drama that left the cowboys with raw hamburger all over their greedy faces.)

          • I doubt it because they did not suffer any damages.

          • lurker says:

            I believe that going after Roseanne, as opposed to any crime blogs etc follows the deep pockets theory. She has money, they do not.

            Regarding what the neighbors think, I cannot imagine they are happy to have an empty house on their block, whether or not they enjoy the Zimmerman’s company or not. An abandoned house tends to lose value rapidly, dragging down other property values along with it.

      • Malisha says:

        Sued Roseanne? I LOVE IT. Bring it ON, Fogenhole!

  5. Trained Observer says:

    “My question for Angela Corey is why build constitutional error into the record at this point? Dunn is not going anywhere.” –Frederick Leatherman

    That’s one problem. Until sentencing occurs Dunn’s butt will remain in Duvall, clogging up a cell at the county jail there.

    Duvall taxpayers want him shifted as soon as possible to a state pen (likely not air-conditioned) where Dunn he can get an ASAP taste of what the rest of his life will be like.

  6. O/T: CBS News is reporting that Ryan Ferguson has filed a $100 million lawsuit against the police for his wrongful murder conviction.

    • bettykath says:

      “The Tribune reports that Zellner also demands a jury trial and names a total of 13 defendants, including the City of Columbia, the Columbia Police Department and Boone County.”

      I would be a tad upset if I were in his place. $100M would help ease my pain.

  7. J4TMinATL says:

    So the issue is whether to sentence him now before re-trial? Defense wants a sentence and State does not?

    • No. The defense wants the continuance and the State opposes it.

    • bettykath says:

      I think it’s the other way round. Defense wants to wait on the sentencing until after the retrial, State wants the sentencing to happen now.

    • bettykath says:

      Tie! You win. 🙂

      • J4TMinATL says:

        Thank you Fred and bk!!

        Doesn’t make sense that State wants to go ahead and sentence (affirmed by objection) before May trial.

        Is it correct to assume that if she planned on not retrying him, this would have been made known at this hearing, which occurred because of a defense motion?

    • Trained Observer says:

      No, state wants a sentence in March, and defense does not because the Dunnster can’t plead his own case at sentencing (as if that would help) without ostensibly jeopardizing his position at the M1 retrial.

      Adding to the dilemma is that the M1 retrial needs to commence within 90 days of the hung jury. If Corey changed her mind and opted against retrying, and if sentencing on the convictions occurred but then got overturned on the appeal for whatever reason, Dunn in theory could walk free if things are not properly handled. Not an acceptable prospect. So everyone is taking one step at a time.

      I don’t see this as a struggle on Healey’s part, since he’s just being deliberate in letting options shake out on who wants to do what and when or why they want to do it.

      I can see Dunn muddying the waters by rejecting the minority female who has been named as his public defender. Or (while doubtful), Strolla might ask to continue defending with compensation from the state. All sorts of scenarios loom for Healey to deal with. He’d be a fool to rush.

      • I don’t see this case going to trial in May.

        With a new lawyer on board, the trial date will have to be continued probably for 6 months or more so that the new lawyer can get up to speed. Since having a well prepared lawyer is in his best interest, he will have to waive speedy trial to accommodate the continuance.

        If he doesn’t waive st, he will force his unprepared lawyer to trial.

        The sentencing should trail the trial.

        • lurker says:

          Just a blip I picked up in listening to the jail house calls. Apparently Strolla advised against waiving a speedy trial for the first trial because Dunn would not be able to afford paying him for all that time. Does this match up to your understanding of the actual events (took over a year to get to trial, I believe)? And if it were the case, would it have been grounds for a retrial had he been found guilty?

          • I counseled my clients against forcing the prosecution to prove its case sooner than expected by refusing to waive speedy trial. That did not make sense to me because they had just completed their investigation and we had not started ours.

            Every murder case that I tried started more than one year after the client was charged. That’s pretty typical and one of the reasons why I do not believe Dunn’s retrial will start before late this year or early next year.

            Opting for the quick trial date by refusing to waive speedy trial is reckless and stupid in my opinion, but it’s not going to constitute ineffective assistance of counsel requiring a new trial, if the client insisted on his right to a speedy trial.

  8. lurker says:

    Off-topic, but I have been listening to the jailhouse calls. One thing begins to stand out, which is the likelihood that Dunn and Rhonda are very likely alcoholic. He comments at one point about how unusual it is to go a week without anything to drink. Further, he later remarks on a health impact (his bowels have improved) since he no longer has access to alcohol. Both of these speak to an ongoing relationship, most likely daily drinking, and heavy.

    He also excuses a memory lapse on Rhonda’s part (something he told her that she forgot) as she was “not herself” during the first few days. He remarks that he can tell when her usage is up. In an earlier call–perhaps the first one after she figured out how to accept the charges on the call from the prison, he asks if she is eating. She says that she hasn’t really been eating, but she has been drinking more wine (“drinking for two” is her terminology).

    This seems likely to account for her almost bizarre shakiness on the stand–as in perhaps someone kept her sober for the appearance and this was withdrawal.

    This seems tangential. But, one key factor in any addiction is a high level of denial, particularly when it comes to accepting responsibility for any consequences associated with use. Having known some heavy drinkers, it is not at all unlikely that a maintenance dose (say, 4 rum and cokes and a champaign toast) would not result in slurred speech or obviously impaired walking. This does not mean, however, that judgment is not impaired.

    We have a man with at least one DUI, questions raised about alcohol use when he went for his pilot’s license and a string of failed marriages. He leaves the wedding and makes a stop to pick up booze, and following an angry outburst that ended in gunfire, he goes back to his hotel where he drinks. This is a pattern absolutely consistent with the logic of the disease. Drinking causes a problem. Deny it, postpone dealing with it. Meanwhile, keep drinking.

    • bettykath says:

      Seems reasonable. Many alcoholics need a drinking buddy. The sugar in the alcohol can be a factor in increased violence.

      • lurker says:

        Listening further, she also seems to have been evidencing either depression or agorophobia which interfered with her ability to come visit him in jail. Either that or she had begun to re-examine their relationship and simply was reluctant to see him in person. He ends one call by directing her to tell him that she loves him and misses him. She does as requested, and sounds sincere. But it seems to bespeak an odd power relationship between them.

    • Trained Observer says:

      Excellent points, lurker. I think Dunn had (and has) little concern for lives of the endangered teens or the murder victim. He wanted to get the hell out of there before he got nailed on another DUI because he didn’t want to screw up his pilot’s license. Such is the screwed up thinking or prioritizing of someone half in the bag.

    • lyn says:

      I would not be surprised. That crazy behavior of Rhoda is typical for drunks and their hysteric behavior. They look like drunks.

  9. Malisha says:

    My question for Angela Corey is why build constitutional error into the record at this point? Dunn is not going anywhere.

    Perhaps she would like to do something to help Dunn waltz away too? Perhaps she’s doing “show trial minus one” in this case so there can be a successful appeal?

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