Court denies Dunn’s request to delay trial in Jordan Davis murder case

January 22, 2014

Wednesday, January 22, 2014

Good morning:

Judge Russell Healey yesterday denied the defense motion to continue the trial date in the Michael Dunn case. The trial will commence on Monday, February 3rd.

Judge Healey next considered the media’s motions to release discovery to the public. By media, I refer to The Florida Times-Union, First Coast News and WJXT TV-4 (AKA: the intervenors). They previously petitioned to intervene on behalf of the public seeking the release of discovery that Judge Healey improperly withheld in violation of the Sunshine Law. They obtained an order from the 1st District Court of Appeal last Friday directing Judge Healey to release the evidence no later than this Friday, unless he determines at an evidentiary hearing to be held held no later than today that some of the withheld discovery, such as names, addresses and telephone numbers of witnesses should be blacked out.

Judge Healey waded into those waters at yesterday’s hearing with both prosecution and defense lamenting the appellate court’s order. Their major complaint was that the release of the discovery this close to trial may prejudice the defense and make it impossible to select a fair and impartial jury.

Of course, if the discovery had been released to the public when it was released to the defense, as required by the Sunshine Law, the late-publication problem would have been avoided.

The primary concern of the prosecution and defense is Dunn’s 740 phone calls from the jail. The Florida Times-Union at Jacksonville.com has the story:

But Corey said the media would still have to pay for the staff time it would take to produce the phone calls. Lawyers for the State Attorney’s Office have said it would take 180 hours of staff time to review the phone calls before they could be released to the public, and the media would have to pay over $6,000 for the staff time it would take to do that.
George Gabel, an attorney representing the Times-Union and First Coast News, said the media shouldn’t have to pay for the calls because the State Attorney’s Office has already reviewed them.

Corey acknowledged that they’d been reviewed, but said her staff had been looking at using them during the criminal trial, and had not reviewed them for release to the public.

Assistant State Attorney Lisa DiFranza said the office would have to review the phone calls again to redact anything that could be seen as a confession on Dunn’s part, and would also have to take any social security numbers or bank numbers that might come up during those calls because public records law prohibit those things from being released to the public.
Prosecutors estimated there were about 740 phone calls made by Dunn since he was in prison. Corey said about 10 of those calls are being looked at by her office to use against Dunn during his criminal trial.

Corey did not volunteer what was said in those phone calls.

Judge Healey said he would issue an order later.

Given the appellate court’s order, I believe Judge Healey has no choice. He has to order the release of the recordings by Friday at the close of business, so Angela Corey better git ‘er done.

I don’t know about you, but I am looking forward to reading transcripts of those calls.


Appellate court reverses trial judge in Jordan Davis case

December 19, 2013

Thursday, December 19, 2013

Good afternoon:

I have an important development to report in the Michael Dunn case. As most of you know, he is charged with shooting Jordan Davis, 17, to death in the parking lot outside a convenience store in Jacksonville following an argument over loud music.

Florida’s 1st District Court of Appeal in Tallahassee reversed Judge Russell Healey’s order that prohibited the release of evidence to the public for a period of 30 days after the prosecution discloses it to the defense. The Court held that Judge Healey’s order violated Florida’s Sunshine Law that requires the prosecution to immediately release the evidence to the public after it releases it to the defense.

Judge Healey issued the order after he experienced a Yikes! moment while watching a local television news report about racist letters that Dunn had written in jail.

I wrote about the letters on October 27th in Let’s play the who-said-this game.

Judge Healey was concerned about the possible impact the letters might have on jury selection and Dunn’s right to a fair and impartial jury. He decided to impose the 30-day delay to give him an opportunity to preview the discovery and decide whether to release it.

Here’s a sample of what he was concerned about.

Sample 1:

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.

Sample 2:

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.’

Sample 3:

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.’

Y’all get the idea.

Judge Healey’s dilemma was how can we seat a fair and impartial jury now that everyone knows that Michael Dunn, a middle aged white guy, is an unrepentant racist who dares “to not be a victim” of four unarmed black teenagers sitting in a parked SUV with the music turned up. That he’s predisposed to “kill these (expletive) idiots” would appear to lessen the prosecution’s burden to prove premeditation to convict Dunn of murder one or to prove Dunn acted with a depraved mind indifferent to human life to convict him of murder two.

Hence, the Yikes moment.

The problem is the jury will get to see them since the letters are relevant and admissible pursuant to Evidence Rule 404(b) to prove Dunn’s intent when he pulled the trigger and that he did not shoot due to a mistake he made about the situation or accidentally shoot at the teenagers. The letters also are admissible under Evidence Rule 801(d)(2) as admissions by a party opponent.

Also, recall that prosecution and defense agreed to withhold certain evidence from the public, such as witness names and phone logs subject to an earlier order entered by Judge Lester, pursuant to exceptions in the Sunshine Law.

The Florida Times Union at Jacksonville.com reported:

But the decision drew objections from The Florida Times-Union, First Coast News and WJXT TV-4, who appealed Healey’s ruling after the judge refused to rescind it.

The prosecution and defense will still have the right to ask Healey to issue a protective order that would keep specific discovery from the public. If that happens, an evidentiary hearing must be held to determine if the information should be protected, the appeals court said.

Attorney George Gabel, who represents the Times-Union and First Coast News, said that’s the way it should be.

“It’s a procedure that’s fair to the defendant and is also fair to the public,” he said.

The irony is that the letters may actually have the reverse effect because many white people in Florida, who fiercely deny they are racist, agree with everything Dunn said. They say blacks are the real racists because they have the temerity to complain about being ordered to sit in the back of the bus. They believe that any black male teenager ipso facto is a thug who should be killed to prevent him from becoming an even worse thug.

Oh, and that God-awful rap music. Lordie! Hide the women and the children.

Like the Zimmerman trial that resulted in an unjust acquittal, excluding people from the jury who share Dunn’s loud and proud racist beliefs is key to getting a fair and impartial trial and a just result.

The four teenage boys were unarmed and minding their own business listening to amped-up music when Dunn pulled in and parked next to them on the passenger side of the SUV. When Davis disobeyed Dunn’s order to turn it down, Dunn pulled out his pistola and started shooting and continued shooting as the driver backed out in a panic and sped away. He even got out of his car and fired at the back end of the fleeing vehicle.

Two of the bullets struck and killed Davis, who was sitting in the back seat on the passenger side just a few feet away from Dunn. Fortunately, no one else was injured.

Dunn claims he saw a gun and fired in self-defense.

The driver stopped the SUV a short distance away from the convenience store in a nearby parking lot to check on Davis, who was already unconscious.

The police arrived within minutes. The three teenagers denied having a weapon. Police searched them, the vehicle and the area but did not find a weapon.

Jury selection is scheduled to start February 3rd.

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This is our 809th post in a little over two years. If everyone who has not contributed a donation, were to donate $5, we could end this fund drive today.

Fred


Zimmerman: Oh the Irony of it All!

July 21, 2012

Scales of Justice
image by DonkeyHotey on creative commons, flickr

W9 is George Zimmerman’s cousin. On Monday, July 16th at 11 am, the prosecution released her tape recorded statements to the media in which she accused George Zimmerman and his family of being racially prejudiced against African Americans and George Zimmerman specifically of sexually molesting her multiple times during a 10-year period that began when she was 6 years old and he was 8. She is now 26 and he is 28. The two families have lived in the same community and socialized together often during that period.

She said the molestation incidents involved fondling and digital penetration of her vagina. She said she finally ended the sexual abuse by getting away from him and running out of the house. She told her parents and they told his parents. Due to pressure from her parents and because she feared Zimmerman would hurt her, she decided not to report the sexual abuse to the police. After that Zimmerman was no longer invited to family social events.

She first contacted the police anonymously two days after Zimmerman shot and killed Trayvon Martin, She told them he was racially prejudiced and capable of hurting people.

They interviewed her a second time after he was in jail charged with second degree murder. When they asked her why she had waited so long to report the sexual abuse, she said it was the first time she felt safe.

A virtual tsunami of outrage and disgust swept the country and the world after the media reported W9’s accusations and various news organizations posted her two tape recorded statements on their websites.

Anticipating the public furor that would follow the release of the tape recorded statements, Zimmerman’s defense attorney, Mark O’Mara, posted the following statement on his website:

The defense moved to block the public release of Witness #9’s statement in a motion filed on June 18, 2012 contending “The content of this statement is not relevant to the issues of this case, and it would not be admissible in the State’s case in chief.” The motion further contends that this irrelevant statement should be withheld from public dissemination [pursuant to Florida’s Sunshine Law] because of the substantial risk that public disclosure will lead to widespread hostile publicity which would substantially impair the Defendant’s fair trial rights, and would pose a serious threat to the administration of justice.

That request was denied on July 13, 2012 by Judge Lester. Because there is a [defense] Motion for Disqualification [of Judge Lester] pending, this morning [Monday, July 16th], we asked the prosecution not to release Witness #9’s statement until there was a ruling on the Motion for Disqualification. This is an appropriate request as, should the motion for disqualification be granted, reconsideration of recent rulings by the judge is appropriate. However, the prosecution elected to make the public disclosure anyway.

Did Mark O’Mara handle this matter appropriately, or did he fumble the ball?

For the following reasons, I contend that he fumbled the ball prejudicing his client.

Let’s review the facts, keeping in mind that W9 made two statements. Statement 1 was about race and Statement 2 was about sexual molestation.

1. 05/24/2012: State files a Request for a Protective Order seeking non-disclosure of W9’s statement;

2. 05/24/2012: Defendant’s concurrence;

3. 06/01/2012: Hearing on the Request for a Protective Order;

4. 06/13/2012: Order Denying Request for Protective Order;

5. 06/18/2012: Defendant’s Motion for Reconsideration specifically mentioning W9’s second statement (accusing defendant of sexual molestation), but not describing the subject matter;

6. 06/29/2012: State’s Response to Motion to Reconsider Disclosure;

7. 07/13/2012: Defendant’s Motion to Disqualify (filed at 11:20 am);

8. 0713/2012: Order Denying Motion for Reconsideration (filed @ 12:02 pm). Judge Lester says W9’s statement is admissible and should be released to the media because race may be an issue at trial;

9. 07/16/2012: Defendant’s Motion for Stay of Order Denying Reconsideration (filed at 10:56 am) arguing that the order must be stayed until the Motion to Disqualify is decided because it was filed first.

10. State releases W9’s two tape recorded statements at 11 am.

Keep in mind that neither side wanted to disclose the sex statement in a pleading that could be viewed by the public. Instead, O’Mara referred to statements 1 and 2, without clarifying that they involved different subject matter.

What we got here is . . . failure to communicate.

Judge Lester apparently thought both statements referred to race because he specifically said the statement might be admissible since race might be an issue. I am not surprised that he assumed both statements referred to race because the discovery released to date contains multiple recorded statements by witnesses concerning the same incident or subject matter.

The order was filed at 12:02 pm on Friday the 13th (oh, the irony), approximately 30 minutes after O’Mara filed his Motion to Disqualify. Therefore, he had Friday afternoon, the weekend, and Monday morning until 11 am to obtain an order directing the prosecution to hold off on releasing W9’s statement 2 until the matter could be reconsidered, but he did not git ‘r done.

He also did not appeal the order to the Court of Appeals.

The problem was further complicated by the judge going on vacation this past week and next week. Therefore, O’Mara had to act Friday afternoon. However, even if Judge Lester had been available Monday, he could not have acted on the motion to stop the release of W9’s statement before the prosecution released it, since the motion was filed only 4 minutes before the statement was released.

What should have been done?

An emergency oral motion and argument via conference telephone call on Friday afternoon seems to be the most obvious solution, but it did not happen. Alternatively, an emergency request for a stay before the presiding judge on Monday morning might have worked, or an emergency appeal to the Court of Appeals.

O’Mara did not attempt any of these options.

Will the evidence be admissible at trial?

Not during the State’s case in chief because it does not fall into one of the categories of admissible uncharged misconduct evidence that is admissible pursuant to Rule 404(b). If and only if the defendant were to open the door by introducing evidence that he has a law abiding, peaceful and non-violent nature, would the prosecution be able to march through the open door and confront him with W9’s accusation that he was a child molester. That is extremely unlikely to happen.

Therefore, there is no good reason to believe the evidence will be admitted at trial.

Should W9’s statement have been released to the media?

Probably not, under Florida Freedom Newspapers Inc., v. McCrary, 520 So.2d 32, 35 (Florida 1988) because:

(a) restricting public access to it was necessary to prevent a serious and imminent threat to the administration of justice;

(b) no alternative, other than a change of venue would protect Zimmerman’s right to a fair trial; and

(c) closure would be effective to protect Zimmerman’s right to a fair trial, without being broader than necessary to accomplish that purpose.

How much damage has been caused by the release of the statement?

How does one unring a bell rung round the world? The damage to Zimmerman’s defense is incalculable and the parties will not know how far and wide it may have spread until they attempt to select a jury.

Will they be able to select a jury?

Yes, I believe they will be able to eventually seat a jury of people who claim not to know about W9’s allegation or, if they do, they will claim to be able to disregard it in deciding whether the State has proven Zimmerman guilty of murder in the second degree beyond a reasonable doubt.

Sayin’ it’s so, don’t mean it’s so.

If he is convicted, will this be an issue on appeal?

Not likely. If they are able to seat such a jury and it convicts Zimmerman, a reviewing court will assume the jury followed the law and did not consider W9’s allegation in deciding the case.

If he is convicted, could this be an issue raised as an ineffective assistance of counsel claim in a state or federal habeas petition?

No, for the same reason.

Conclusion

This was an avoidable mishap that never should have happened. Mark O’Mara bears the responsibility for letting this issue slip through his fingers. But for being so busy cranking out his groundless Motion to Disqualify Judge Lester, he might have had the time and the energy to correct the problem before 11 am on Monday morning.

The convergence of coincidences is remarkable, however, almost as if this happened according to “God’s Plan.”


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