Judge Healey denies Michael Dunn’s motion for change of venue

September 11, 2014

Thursday, September 11, 2013

Good afternoon:

Judge Healey denied Michael Dunn’s motion for a change of venue this morning saying he wants to start jury selection as scheduled on September 22nd and see how it goes.

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.

Let’s play the who-said-this game

October 27, 2013

Sunday, October 27, 2013

Good morning:

Time to play the who-said-this game.

A game the whole family can play

Just read the quote and guess who said it.

First clue: The man is white and in jail.

The jail is full of blacks and they all act like thugs. This may sound a bit radical but if more people would arm themselves and kill these (expletive) idiots, when they’re threatening you, eventually they may take the hint and change their behavior.

Second clue: The man denies being a racist.

I’m really not prejudiced against race, but I have no use for certain cultures. This gangster-rap, ghetto talking thug ‘culture’ that certain segments of society flock to is intolerable. They espouse violence and disrespect towards women. The black community here in [deleted] is in an uproar against me — the three other thugs that were in the car are telling stories to cover up their true ‘colors.’

Third clue: This man is really amazed and irked to discover that the media does not call him a hero.

I am amazed at what is going on with the way the media has been covering this case. Their have been several other shootings here in [deleted], yet they are all either black-on-black or black-on-white, and none of them have garnered any attention from the media. I guess it’s news when someone dares to not to be a victim, but they are twisting it around sand saying I was the ‘bad guy.’

Fourth clue: This man wants a change of venue because the media has not called him a hero.

You are correct, if you chose Michael Dunn. He is charged with first degree murder for shooting 17-year-old Jordan Davis to death in the parking lot of a convenience store in Jacksonville, Florida. Dunn emptied the clip of his 9 millimeter semiautomatic handgun while squeezing off shots at point blank range into an SUV parked next to him because Jordan Davis disrespected his authority as an older white guy by refusing to turn down the music and calling him names. Davis and his three friends were unarmed.

Michael Dunn is stupid because he shot and killed a kid for playing loud music that he did not like and disobeying his order to turn it down. He is also stupid because he does not realize he is a racist and he mailed these statements from jail to relatives and friends not realizing that jailers read mail. Predictably, the statements were published. Now, he wants a change of venue to a place with like-minded people who will give him the keys to the city and throw him a ticker tape parade down main street instead of throwing him in jail.

Someplace like Sanford, Florida in Seminole County.

The best thing Dunn’s lawyer could do right now is to threaten to kill him with his bare hands if he doesn’t shut up.

Quotes obtained from Atlanta Black Star

This is our 735th post

Zimmerman: Can the Prosecution Request the Trial be Changed to Another County?

October 23, 2012

Grey Winter Sky commented at 12:43 am:

“If a defendent feels that they cannot get a fair trial in the county/state that they live in, because the media has tainted the jury pool, and asks to have the trial moved elsewhere…..can the prosecution do the same thing? Since MOM seems to be conducting this trial in the court of public opinion, it would seen to be nearly impossible, as Prof. Leatherman pointed out, to find jurists that aren’t racist and very pro-George. Can the prosecution ask for the trial to be moved so that they will also have a fair trial?”

My Answer

That’s a very good question and I believe the answer is “No.”

A defendant has a Sixth Amendment right to be tried in the jurisdiction where the crime was allegedly committed.

The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

If the State files a motion for a change of venue and the defendant objects, which I think Zimmerman would do pursuant to O’Mara’s advice, I believe Judge Nelson would have to deny the motion because, if she granted it, she would have violated his Sixth Amendment right to have case tried in Seminole County with a Seminole County jury.

At 10:22 am, BettyKath also responded to Grey Winter Sky’s comment. She said,

“There were some NYC cops who were tried in Albany for killing an unarmed young man, Amadeu Dialo. (SoBs got off. They used a Black prosecutor who didn’t mention that the cops were all white undercover and the victim was a young Black immigrant. 41 shots were fired by these sharpshooters of which only 19 were used to kill the Amadeu.)”

My Answer

The four NYPD cops who shot and killed Diallo were defendants and the case was moved to Albany to protect their right to a fair trial, given the extensive adverse pretrial publicity against them in NYC. That is consistent with their Sixth Amendment right.

Zimmerman probably would be entitled to a change of venue, given the extensive pretrial publicity, but I don’t believe he is going to request it because he and his lawyers believe that publicity will actually help him, if he is tried in Seminole County.

Their opinion of Seminole County jurors must be disrespectful and low, isn’t it?

I think a possible solution, assuming Zimmerman is acquitted, may be a federal prosecution against him, and possibly others, for a federal hate-crime violation.

Think Rodney King, for example.

I’m going to do a little research on this and post an article in a few hours.

* * *

I’m back.

Welcome to the Practical-Impossibility Test.

What’s that, you ask?

Ask and you shall receive.

The Florida Court of Appeals addressed this issue in Sailor v. State, 733 So.2d 1057 (!999).

Sailor and three others were indicted in in Gadsden County for first degree murder and attempted first degree car jacking. The trial court severed their cases for trial.

Sailor was tried four times before he was finally convicted of manslaughter. The first three trials ended with hung juries. After the first two ended in mistrals, the prosecution asked the court to change venue (try the case in another county), but the trial court denied the motion. The prosecution then reduced the murder 1 charge to murder 2 so that it could prosecute Sailor with a 6-person jury, instead of a 12-person jury. But alas, the strategy did not work as the trial ended in yet another hung jury.

The Court of Appeals recounts what happened next:

After the third mistrial, the state again moved for a change of venue, alleging substantial media coverage of each mistrial (as well as of the co-defendants’ trials), and that a large portion of the population of Gadsden County had prejudged Mr. Sailor’s guilt or innocence.   Over defense objection, the trial court granted the state’s second motion for change of venue.

Mr. Sailor then petitioned this court for a writ of certiorari in an effort to prevent the transfer, and we concluded that

the trial court’s action in granting the state’s motion for change of venue without conducting an exhaustive effort to empanel a jury in Gadsden County was premature and constitutes a departure from the essential requirements of law.   See Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA), review denied, 392 So.2d 1379 (Fla.1980).   Accordingly, the petition for writ of certiorari is granted, the trial court’s amended order transferring venue is quashed, and the matter is remanded to the Circuit Court in Gadsden County for further proceedings. Sailor v. State, No. 97-3798 (Fla. 1st DCA Oct. 17, 1997).

Not bad, but not good enough.

On remand, the trial court made its first effort after the third mistrial to empanel a jury, an effort that all but succeeded.

Starting with a jury pool of fifty-eight, the trial court ended up with five of the six jurors needed.   Before voir dire, the trial court excused fourteen potential jurors. The trial court excused an additional twenty-six jurors for cause after voir dire, leaving eighteen potential jurors on the venire.

The trial court allowed each side ten peremptory challenges.   Once the defense exercised four peremptory challenges and the state exercised nine peremptory challenges, only five jurors remained.   Mr. Sailor declined to accept a five-person jury, and the trial judge declared a mistrial, without ordering enforcement of any of the outstanding jury summonses  or making any other attempt to seat another juror.

(Emphasis supplied)

Note the italicized material, as it is significant.

Meanwhile, back in the jungle:

Of four attempts to seat juries in this case, three proved successful.   Before the first degree murder charge was dropped, fourteen jurors were reportedly selected for the first trial and thirteen jurors were reportedly selected for the second trial.   Like the pending retrial, the third trial only required a six-person jury, and the trial court could have seated five jurors this time.

This record does not establish that the court made an “exhaustive attempt” to seat a jury before declaring a mistrial or that additional effort would not have proven successful.   See Rhoden, 179 So.2d at 607 (reversing grant of a change of venue over defense objection where the trial court exhausted the venire in selecting five jurors).

Help, get me out of this freakin’ wilderness! What’s that rule, again?

Once upon a time a very long time ago, in  Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916), the Florida Supreme Court held:

Where an application in a criminal prosecution for a change of venue from the county where the crime was committed is made by the prosecuting attorney, and the accused objects thereto, the matter should be tested in some way so as to make it to clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.

And there you have it. Judge Nelson must deny a prosecution motion for a change of venue, unless it would be “practically impossible” to seat a fair and impartial jury in Seminole County. Assumptions or presumptions wold not suffice. She would have to try, try, and try again.

BTW, the trial court eventually seated a 6-person jury in the Sailor case and it found him guilty of manslaughter without a firearm and attempted armed car jacking. Sailor v. State, 816 So.2d 182 (Fla. 1st DCA 2004).

Zimmerman: Motion for a Change of Venue

September 20, 2012

The Sixth Amendment, which is applicable to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Impartial Jury Clause is at issue in the Zimmerman case because of:

(1) The tsunami of outrage nationwide in reaction to State’s Attorney for Seminole County, Norm Wolfinger’s decision not to charge Zimmerman with a crime for killing Trayvon Martin;

(2) Governor Scott’s decision to replace Wolfinger with State’s Attorney Angela Corey;

(3) Wolfinger’s decision to retire;

(4) Angela Corey’s decision to charge Zimmerman with second degree murder;

(5) The firing of Chief Bill Lee of the Sanford Police Department for his handling of the investigation into Trayvon Martin’s death;

(6) The release of much of the evidence in the case to the public before trial; and

(7) the conduct and various miscues of Zimmerman, Mark O’Mara, and Zimmerman’s friend Mark Osterman, who have attempted to try the case in the media to generate sympathy and financial support for Zimmerman’s defense effort.

What we now have is an extraordinary mess in which it seems that everyone in the country, never mind Seminole County, has a strong opinion about Zimmerman’s guilt or innocence.

The question is whether it is possible for Zimmerman to get a fair trial by an impartial jury in Seminole County or anywhere else in Florida and, if not, whether and to what extent should Zimmerman’s conduct by publicizing his case, including going on the Sean Hannity Show and pouring gasoline on the fire by proclaiming that he had no regrets for killing the unarmed teen because it all happened according to “God’s Plan,” should play a role in deciding what should be done about the mess.

Before anyone attempts to answer my two questions, please consider something that I know to be true from personal experience. I have represented clients in high visibility cases where it seemed impossible that any sentient being in the state did not have a strong opinion about the guilt or innocence of my client and in each case we were able to select a jury of twelve people, plus alternates, who claimed to know very little about the case and not to have formed an opinion about the guilt or innocence of my client. That happened in the Casey Anthony case and I predict it will happen in the Zimmerman case too.

The point is there are many people who have no interest in the crime news and never read, watch or listen to it.

There are two potential solutions.

One is for the Court to grant a defense motion for a change of venue, which will likely be forthcoming soon, and follow the procedure used in the Anthony case. Pick the jury in an adjoining county, sequester them for the trial, and try the case in the Seminole County Circuit Court.

The second solution is to wait and see what happens during jury selection. Have all the prospective jurors fill out a questionnaire that asks them to write down what they’ve read, heard or seen about the case and state whether they have formed an opinion about Zimmerman’s guilt or innocence. Then you bring them in and question them individually until you are able to seat a six-person jury, plus alternates.

I favor a mixture of both options.

The Court and both parties have a common interest in doing what they can to assure a fair trial by an impartial jury. They should join together to hire a polling firm and have them design a questionnaire or series of questionnaires to poll citizens in Seminole and Orange County as well the larger urban communities in Miami, Tampa and Jacksonville. Have them tabulate the results and chart any changes over time.

The results of the poll should provide a statistically valid estimate of the probability that Zimmerman can receive a fair trial from an impartial jury in any of those communities.

Without a poll, the Court would not have a sufficient basis to make a decision.

We know from experience that jurors hate being sequestered and their rising anger can affect how they decide the case in unpredictable ways. It’s also extremely expensive. Therefore, sequestration should be avoided, if at all possible.

If the Court is going to allow the jurors to go home, home cannot be somewhere on the far side of the Moon. The poll should help select the proper venue and the best solution might involve trying the case in a distant venue rather than transporting and sequestering the jury in Sanford.

For all of these reasons, I recommend using a poll to select the venue, non-sequestration of the jury, and the use of questionnaires with individual voir dire to select the jury.

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