Dunn’s lawyer has filed a motion for a new trial, which is standard operating procedure and should not be a matter to lose sleep over. The arguments are that he should get a new trial because:
1. The retrial should have been moved to another county;
2. The medical examiner should not have been permitted to testify about the trajectory of the shot that killed Jordan Davis; and
3. The juror should not have been dismissed for misconduct during the trial.
I cannot comment on the jury selection issue because it was not televised or livestreamed.
The argument that the medical examiner should not have been permitted to testify is ridiculous because no one is better qualified than a pathologist medical examiner to testify about the trajectory of a bullet through the body and the defense ‘expert,’ Michael Knox is a hack.
The juror was properly dismissed for making inappropriate statements about Angela Corey.
Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.
It is not a death-penalty case.
The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.
For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.
Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.
Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.
The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:
The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.
Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.
The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.
The effort to select a jury continues today.
Unfortunately, there is no television or live-stream coverage.
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Judge Healey has completed reading the jury instructions to the jury in the Michael Dunn retrial and the jury deliberations are underway in the jury room.
As we wait for them to reach a verdict, I recommend readers watch John Guy’s excellent rebuttal argument. For example, he absolutely destroys Michael Knox, the defense forensic expert and dismisses him stating, “That’s what you get for $350 per hour.
While you are listening to him, notice that he uses circumstantial evidence to construct a powerful argument that Dunn lied. For comparison purposes, recall that Judge Masipa in the Pistorius case regarded circumstantial evidence as not very reliable or persuasive.
I think it’s appropriate to instruct juries that evidence may be either direct or circumstantial. One is not necessarily more accurate or reliable than the other and it’s up to the jury to decide how much weight to assign to the evidence admitted in the case.
The instructions direct the jurors to consider first degree murder first and not to consider lesser included offenses like second degree murder or manslaughter unless they cannot unanimously agree on a verdict to first degree murder.
First degree requires proof of premeditation. Premeditation requires proof that the defendant specifically intended to kill Jordan Davis; that he reflected on his decision to kill; and that decided to go ahead and do it.
Premeditation (i.e., specific intent to kill, reflection and affirmation) does not require anything more than a moment in time.
What do you think of John Guy’s rebuttal argument?
Do you believe circumstantial evidence is inherently less accurate and reliable than direct evidence?
Do you believe Michael Dunn acted with premeditation?
Crane and I are safely out of Kentucky and settling in at a new location that we are not going to identify due to continuing concerns about our safety. We still do not have ongoing reliable access to the internet, which is why you have not heard from us recently. We hope to have that problem solved within the next few days.
The most interesting incident today occurred when Judge Healey dismissed Juror #4 because of an article published in Folio Weekly titled, An Interview with a Dunn Jury reject.
A former Folio staffer who was a potential juror but did not make the final cut heard the juror criticize State Attorney Angela Corey during jury selection, according to Folio.
Here’s the quote from the Folio article:
“A 400-pound white schoolteacher who was sitting by me really hated [Corey’s] humor, and made the joke that ‘she would have a hard time proving to a court that I am fat; there would still be reasonable doubt.’”
The Folio writer confirmed to Action News at 12:35 p.m. that it was his article that led to the dismissal of juror #4.
The juror is a white male.
There are two black jurors.
Rhonda Rourer testified today, sobbing as she did before. In the unsurprising-news department, she is no longer engaged to Michael Dunn.
The trial, which is being live-streamed, will resume on Monday.
Jury selection continues today in the Michael Dunn retrial.
Crane and I are sitting across from each other in a McDonald’s where we are enjoying free coffee and WiFi. We have reached our destination and we will get hooked up to the internet tomorrow afternoon. We will resume regular posting late tomorrow or Friday.
Crane just posted an article at Firedoglake updating readers on the Ebola epidemic. Read it below.
Meanwhile, jury selection continues today in the Michael Dunn retrial.
Ebola Best and Worst-Case Scenarios
By Crane-Station
On Tuesday, the CDC issued a report based on an epidemiological model, that projected a top-range (worst-case) estimate of Ebola cases in West Africa- what the number could reach – by January 20, 2015 – as well as a best-case scenario. Voa News explains:
Between 550,000 and 1.4 million people in West Africa could be infected with the Ebola virus by January 20, 2015, according to a report issued on Tuesday by the U.S. Centers for Disease Control and Prevention (CDC).
The top range of the estimate, 1.4 million, assumes that the number of cases officially cited so far, 5864 according to the count kept by the World Health Organization, is significantly underreported, and that it is likely that 2.5 times as many cases, or nearly 20,000, have in fact occurred.
The CDC epidemiological model is based on August numbers, and do not take into consideration the recent US government announcement that it will send 3000 troops into Africa as part of the Ebola relief effort. The best-case projection involves getting 70 percent of the patients into facilities where risk of transmission is reduced, as well as burying the dead safely, which could potentially bring the epidemic to an end by January 20.
Extensive, immediate actions- such as those already stated- can bring the epidemic to a tipping point to start a rapid decline in cases,” CDC said in a statement.
Voa News is also reporting that in Liberia, the number of Ebola cases has been doubling every few weeks, posing a threat to the social, economic and political fabric of the country, as it impacts forestry, mining and agriculture.
In the meantime, experimental Ebola drugs will be tested in West Africa. Ebola is an RNA viral infection with no current cure. Details regarding the testing are “under discussion.” Apparently, three drug companies are working with WHO, to develop fast-track protocols.
Also, since Ebola does spread through bodily fluids, and since it can be transmitted from a dying and dead victim to the living, safe burial practices are a concern. Scientific American explains:
Unlike most pathogens, which cannot survive long on a corpse, however, Ebola does remain infectious after a person dies– for how long remains unknown. WHO notes that men who have survived the disease can still transmit the virus through their semen for up to seven weeks after recovery, providing a glimpse into the longevity of this potent pathogen.
In July, Smithsonian addressed the issue of culture, burial practices, and generalized mistrust that occurs, when strangers from another culture and country come to Africa, to retrieve, bag and disinfect loved ones, who are victims of Ebola:
Telling people that they can’t bury their family members according to tradition can be agonizing, and in order to reassure the living and prevent further infections, health workers follow strict guidelines when disposing of bodies. The WHO’s typical burial guidelines for emergency situations extort (sic) workers to prioritize the living over the dead and discourage mass burials, which can be incredibly demoralizing.
Jury selection will be the most important part of the Michael Dunn retrial, which is scheduled to start next Monday. To have any chance to convict Michael Dunn of murdering Jordan Davis, the prosecution must screen for, identify and exclude any prospective juror who believes that it’s reasonable to assume that:
(1) a black 16 to 21-year-old male who likes to listen to loud rap music is an angry thug;
(2) a black 16 to 21-year-old male who lips off at an adult white male who orders him to turn down the volume is an angry thug;
(3) a black 16 to 21-year-old male who cranks up the volume after being ordered to turn it down is an angry thug;
(4) it’s reasonable for an adult white male to assume that an angry black thug who confronts him is armed and intends to kill or seriously hurt him; and
(5) it’s reasonably necessary for an adult white male to use deadly force in self-defense to prevent an angry black thug from killing or seriously injuring him.
The best way to determine if any prospective jurors hold these views is to ask them a series of hypothetical questions to discover if they fear black 16 to 21-year-old males.
For example, if you were walking down a sidewalk by yourself and saw a black 16 to 21-year-old male walking toward you, would you,
(a) continue walking toward him and ignore him;
(b) continue walking toward him and greet him;
(c) cross the street and walk down the other side; or
(d) turn around and walk the other way?
The use of hypothetical questions is the best way to uncover racial prejudice.
Can you think of any other hypothetical questions that you might ask during voir dire?
Finally, if you were a prosecutor, would you rather try this case to a judge according to the procedure followed in South Africa?
Would your answer change, if you were defense counsel?
The most important disputed questions of fact in the case are whether Jordan Davis was armed or had something that looked like a weapon in his hands, and if he was attempting to get out of the back seat of the SUV when Dunn squeezed off multiple shots at him.
FYI: Judge Healey denied a defense motion for a change of venue, preferring to take a wait-and-see approach to see if the extensive publicity about the shooting and the first trial has made it impossible to seat a twelve-person jury that can fairly and impartially decide the case (i.e., jurors have already formed an opinion about what the outcome should be). Once chosen, the jury will be sequestered.
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He will grant the motion if they can’t select a fair and impartial jury. If that happens, he probably will bus in jurors from a nearby county and restart jury selection.
Needless to say, judges prefer having the jurors travel to the courthouse compared to the courthouse traveling to the jurors.
He granted the defense motion to prohibit the prosecution and witnesses from referring to Jordan Davis as the “victim,” but he denied the defense motion to prohibit the prosecution from introducing photos of Dunn’s writings on the wall of his cell.
This latter ruling is an important win for the prosecution because Dunn’s writings show he is a racist.
The denial of the motion for a change of venue as premature has become a standard response and reflects a wait-and-see approach that most judges favor.
The ruling that prohibits referring to Jordan Davis as the “victim” is a legally sound decision because the word implies that his death was unjustified thereby eroding the presumption that Dunn is innocent in that the killing was a justifiable use of deadly force in self-defense.
This problem can be cured by referring to him as the “deceased,” eliminating this issue as a potential basis for a successful appeal, if Dunn were convicted. This is why the judge’s decision is a smart strategic ruling.
Posted by masonblue 
