Introducing Judge Russell L. Healey

July 31, 2013

Wednesday, July 31, 2013

Good afternoon to all of our friends:

Duvall County Judge Russell L. Healey is the third judge to handle the Michael Dunn case.

Scott Butler of the Florida Times-Union has the story:

A second judge has removed herself from the high-profile Jacksonville murder trial of Michael David Dunn, charged with killing 17-year-old Jordan Davis in a dispute over loud music.

Circuit Judge Mallory Cooper had been appointed in May following the defense team’s request for Judge Suzanne Bass to step down due to concerns for a fair trial.

Bass denied him bail, refused a motion to have the state declare him indigent and pushed to have the trial in September even though his attorneys said it was unrealistic. Defense attorney Cory Strolla also said Bass failed to control her courtroom, including warning the victim’s father about his outburst, the Times-Union previously reported.
Cooper was replaced by Circuit Judge Russell Healey, court records show.

I previously wrote about the first and only hearing so far before Judge Healey. He denied Dunn’s motions seeking reconsideration of Judge Bass’s denial of bail, denial of indigency status, and denial of a motion to continue the trial date.

DISCLOSURE: Although Judge Healey and I were members of the National Association of Criminal Defense Lawyers when I was a member of the Board of Directors, I do not recall his name. It is possible that I may have met him during our midwinter meeting in Jacksonville in the late 90s, or at one or more of our other meetings, but I do not recall doing so. Therefore, I have no opinion about him.

The odd thing about Judge Healey’s appointment is that he is not a Circuit Court Judge. He is a Duvall County judge and I do not believe county judges can preside over felony trials without some sort of special appointment and or the consent of both parties to the case.

There does not appear to be a shortage of judges serving on the Fourth Judicial Circuit, which has 29 judges, with 9 assigned to handle criminal cases full time.

Could the Dunn case be the case that no circuit court judge wants to handle because of its high profile and possible voter backlash from the verdict?

Why Judge Healey?

Does not appear that he has any experience presiding over any felony trial, let alone a high profile felony trial.

Did he volunteer for this duty?

Who in their right mind would volunteer for a baptism by fire?

This oddity does not inspire confidence that the outcome of this trial will not be rigged.

Zoom has the skinny on Judge Healey.

Russell L. Healey was a law partner for 14 years in Mahon, Mahon & Healey, P.A. where he practiced criminal law specializing in marital and family law.

He was a board certified Marital and Family Law attorney and a former member of the Jacksonville Planning Commission.

Before joining Mahon & Mahon, he worked in private practice with Tassone and Healey after serving as an assistant state attorney and state attorney for the 4th Judicial Circuit of Florida in Jacksonville.

He has a bachelor’s degree in Finance from the University of South Florida, a JD degree from the University of Florida and was admitted to the Florida Bar in 1981.

Before becoming a Duvall County judge in 2002, he was a member of the American Bar and Florida Bar Associations, the National and Florida Associations of Criminal Defense Lawyers, the Association of Trial Lawyers.

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The Decision From Hell (Part 1)

December 27, 2011

The Kentucky State Court of Appeals issued its decision affirming Crane Station’s conviction on January 21, 2011. Her motion for reconsideration was summarily denied without an explanation. Her motion for discretionary review is pending in the Kentucky State Supreme Court.

I call the 3-0 opinion written by written by Judge Lambert and joined by judges Henry and Taylor the decision from hell and will now take it apart. First, here is a link to the decision.

The Court begins by making two fundamental errors that invalidate the conclusion it reached affirming the circuit court’s denial of the motion to suppress evidence. The two errors are:

(1) It relied on after-acquired information, including trial testimony and the dispatcher’s tape, which is prohibited by the United States Supreme Court and the Kentucky Supreme Court; and

(2) It stated that the appellant had failed to challenge any of the findings of fact in the three suppression orders, which is absolutely false.

In United States v. Hensley, the Supreme Court held that trial courts must decide the constitutional validity of investigatory stops of civilians by police officers (i.e., whether there was reasonable suspicion or probable cause to justify the stop) based on the information available to the police officer before the stop. Information acquired after the stop cannot be used to justify a stop that was not supported by reasonable suspicion or probable cause because that would eliminate the rule.

The Supreme Court also held in Hensley that, even if a police officer stops a suspect acting in good faith on mistaken information provided by a dispatcher, the stop nevertheless violates the Fourth Amendment, if the correct information did not constitute a reasonable suspicion.

Therefore, the proper legal analysis under Hensley is to determine whether the information supplied by the 911 caller constituted a reasonable suspicion to justify the stop. The caller said,

And there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early ’90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.

The caller did not describe suspicious activity, much less criminal activity. He described a conversation between his neighbor and a stranger in which the stranger mentioned the word heroin. So what?

This is not complicated. Absent information that the caller witnessed a purchase or sale of a controlled substance, or possibly a request to purchase or sell a controlled substance, there is nothing to investigate.

A reasonable suspicion is more than a mere hunch or suspicion. The hunch or suspicion must be reasonable. That is, it must be supported by articulable objective facts and circumstances that would warrant a reasonable person to conclude that a crime has been committed, is being committed, or is about to be committed. That did not happen.

Now, the stop would violate the Fourth Amendment, even if the dispatcher had innocently altered what the caller said and told the deputy that the caller had reported witnessing a drug transaction between his neighbor and a stranger and the officer stopped the stranger to investigate.

Why? Because the dispatcher cannot create a reasonable suspicion that did not already exist, even if the dispatcher does so by committing an innocent mistake. In other words, good faith reliance on mistaken information provided innocently by a dispatcher cannot create a reasonable suspicion where none existed. Therefore, the dispatcher’s information is irrelevant under Hensley.

But even if we consider what the dispatcher said, there still is no reasonable suspicion. He said,

Suspicious person complaint, the 4000 block of Queensway Drive off of Lester Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.

(218A is a reference to the Kentucky State Uniform Controlled Substances Act)

Again, so what? A person walking around asking people about a drug statute is not illegal activity.

I am not saying that the caller’s tip should not have been investigated. I am saying that the proper procedure would have been to contact and interview the caller to obtain additional information regarding what he observed, which the deputy did the following day. However, even if the caller provided additional information such as, “I saw the woman buy some heroin from my neighbor,” the information could not be considered for the purpose of determining whether the deputy had a reasonable suspicion to stop Crane Station because he acquired that information after he stopped her. Therefore, it is irrelevant.

But the caller did not say anything like that. He said,

On 6-28-2006, a Lady driven a Buick LeSabre stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her painst unbuttoned and unzipped. She acted like she was under the Influence of something. She was a dirty Blonde wereing Blue shirt and Blue Jeans. (Spelling and grammatical errors in the original)

(incidentally, her jeans were not unbuttoned and unzipped in the in-dash video)

Asking someone if they are willing to sell two barrels is not criminal activity. (The barrels were made out of oak and split in half across the middle so they could be placed on a deck and used as planters) In addition, the statement does not mention heroin or any other drug. Finally, the description he provided and the conclusion that she appeared to be high on something falls far short of “sufficient articulable objective facts and circumstances that would warrant a reasonable person in concluding that the person had committed, was committing, or was about to commit a crime.”

Also, since the caller provided the statement after he knew about the arrest, his perspective would have necessarily changed and we cannot know whether he would have said the same thing, if he had been interviewed before the stop. The bottom line is this information should not have been considered.

Additional information that came to light at subsequent pretrial hearings or the trial itself would, of course, also be irrelevant on the issue of reasonable suspicion because it would have been after-acquired. Therefore, to the extent that the Circuit Court and later the Court of Appeals relied on such information to enter findings of fact, such findings are necessarily invalid, as a matter of law under Hensley.

A consideration of the deputy’s observations of Crane Station’s driving prior to the stop is not prohibited by Hensley. To find out what he observed, the Circuit Court should have watched and listened to the deputy testify at the suppression hearing and the Court of Appeals should have watched the video and read the transcript of his testimony at the suppression hearing. Evidently the judges did not do this because the deputy testified that her driving was exemplary, she violated no laws, and he pulled her over as soon as he realized that she and her vehicle matched the description provided by the caller. He did not pull her over because of her driving; he admitted that he pulled her over because he suspected she possessed heroin.

The deputy was the only witness at the suppression hearing. Therefore, there were no disputed facts. No he-said-she-said differences for the trial judge to resolve. He merely had to enter findings of fact based on what the witness said, but he did not do that.

Instead, he made-up some facts, such as Crane Station initiated a voluntary citizen-police contact that is not subject to the Fourth Amendment, when the deputy testified that he pulled her over. He also relied on trial testimony, which was after-acquired information, including testimony by the deputy that directly and materially contradicted his testimony at the suppression hearing.

It is difficult to know what the hell was going on when the deputy and the trial judge were making stuff up.

The Court of Appeals added to the mess by ruling that the appellant is stuck with the invalid findings of fact because she did not challenge them on appeal. That is absurd because her lawyer challenged all of the materially false facts. There is no doubt. Read her opening and reply briefs, if you do not want to take my word for it.

Finally, the Court of Appeals ignored Hensley. Ignored Crane’s argument that the HGN should not have been considered because it was improperly administered. Concluded that despite “not driving erratically or weaving” and passing a portable breath test, the invalid HGN, when considered together with nervousness, glassy eyes, her admission that she was taking prescribed Clonazepam, and other unspecified “odd behavior,” the deputy had probable cause to arrest. Apparently, despite quoting the product insert warning for Conazepam, which does not say that people who take the drug should never operate machinery or a motor vehicle the Court of Appeals believes that, as a matter of law, a police officer has probable cause to arrest anyone who takes the drug and operates a motor vehicle whether they drive properly or not. The Court also ignored federal and state cases cited by Crane’s lawyer, which hold that nervousness is not a valid or reliable indicator of impairment because people who are not under the influence of drugs or alcohol typically also exhibit nervousness when stopped. They require additional evidence of evasive behavior to establish probable cause to arrest and there was no evidence of that in Crane’s case.

So, did the judges on the Court of Appeals read her briefs?

Difficult to conclude that they did, because I do not see how they could honestly claim that her lawyer failed to challenge any findings of fact, if they had read it.

On the other hand, if they wrote an opinion affirming the conviction without having read her briefs, they should be defrocked and disbarred.

Either way, they have a lot of splainin’ to do.

I will deal with the rest of the Decision From Hell in Part 2 tomorrow.

Until then, Court will be in recess.


The Curious Case of the Three Suppression Orders (Part 3)

December 9, 2011

This music is fitting for this post ( and the FG legal case). You can simply click on the video and then read the post. You do not have to watch the video.

Part 1

Part 2

The Curious Case of the Three Suppression Orders (Part 3)

Author’s Note: Judge Clymer surprised us with a third suppression order that he issued out of the blue 3 days after the trial concluded. He did not inform us that he was considering modifying his second order and he did not schedule a hearing, request any input or allow any discussion or objections. He simply mailed it out as one might do with a letter bomb.

The order consists of the judge’s personal opinions set forth as findings of fact in a transparent effort to strengthen his order denying suppression by making stuff up and characterizing it as “unusual, suspicious, and disturbing,” even though Deputy McGuire never uttered those words at the suppression hearing. He even uses the word appellant, instead of defendant, obviously anticipating an appeal.

During my 30 years representing clients charged with felonies in state and federal courts, I never had a case in which a judge did this and I never heard of a case in which a judge did something like this.

3. The Third Suppression Order Issued Post-Trial on January 28, 2008.

In his third suppression order, the supplemental suppression order, Judge Clymer modified his first finding of fact in the second order (that correctly quoted what the caller reported to 911) by eliminating the quote and replacing it with the following statement.

The 911 dispatcher received a call from an identified public citizen, Vernon Wilkey, who reported that a white female driving a dark blue LeSabre with Washington State license plates made unusual and disturbing statements about heroin in his neighborhood.

(Finding of Fact 1)

Finding of Fact 2 states,

911 called deputies, and alerted them to the woman, her vehicle, and her suspicious drug activity.

Finding of Fact 3 characterizes the appellant’s driving and states,

The vehicle was travelling slowly in the right traffic lane of Highway 60 with the left-turn signal activated for an unusually long time for no apparent reason. The vehicle did not turn left, but continued on straight, which all appeared unusual and suspicious to the deputy.

Finding of Fact 4 (mis-numbered as a second 3) states,

The vehicle then pulled to the right side of the road and stopped without any signaling to do so by the deputy. This demonstrated additional unusual behavior by the appellant. The deputy then pulled in behind the appellant’s vehicle and activated his roadstop lights. By the time the deputy stopped, he had reasonable grounds and reasonable suspicion to approach the driver. He exited his cruiser and walked to speak to the driver.

Finding of Fact 5 (mis-numbered as 4) states in part,

The appellant failed all HGN tests. She also gave unusual responses to instructions given to her by the deputy; she appeared somewhat confused; she appeared nervous; and she appeared to the deputy to be under the influence of drugs or alcohol.

Finding of Fact 6 (mis-numbered as 5) states,

The appellant admitted to the deputy that she was on a number of medications, including Clonazepam. Clonazepam is a strong anti-psychotic medication which interferes with motor performance, including driving a motor vehicle. Clonazepam also causes abnormal eye movements.

Finding of Fact 7 (mis-numbered as 6) states,

The deputy had reasonable grounds and probable cause to arrest the appellant for DUI.

Finding of Fact 8 (mis-numbered as 7) states,

The appellant was transported to the hospital for the taking of a blood test. At the hospital a suspicious baggie was found next to the appellant’s watch in the back seat of the deputy’s patrol car. The deputy knew that the patrol cruiser did not have the suspicious plastic baggie or a watch before the appellant was placed into the back seat. The appellant admitted losing her watch. The deputy had probable cause and exigent reasons to seize the baggie. The baggie appeared to contain crack cocaine. The deputy had probable cause to arrest the appellant for tampering with evidence and possession of cocaine.

Conclusion of Law 1:

The caller who reported the appellant’s unusual interest in heroin was identified. Such a report is considered more reliable than an anonymous tip.

Conclusion of Law 2:

The deputy had reasonable suspicion and probable cause to make an investigation stop and search of the appellant and her vehicle.

Conclusion of Law 3:

Discovery of the suspicious plastic baggie in the back seat of the deputy’s cruiser was based on plain view discovery. The appellant and her vehicle had previously been detained based on the circumstances described above which proceeded (sic) the discovery of the baggie.

Author’s Note: We have previously discussed Deputy McGuire’s testimony under oath at the preliminary hearing in which he said he found the rock of crack under his rear seat while he was looking for Crane-Station’s watch that she had asked him to retrieve for her.

I was confident that the Court of Appeals would reverse on the suppression issue in this”unusual, suspicious, and disturbing” case, but it did not, and that is when I lost hope for an honest and judicious review of her case.

If this could happen to Crane-Station, it can happen to you. We are all lost when our judicial system ceases to function.


Investigatory Stop Or Voluntary Citizen Initiated Contact With Police?

November 11, 2011

An interesting Fourth Amendment issue arises from time to time regarding whether a police officer initiates a contact with a person operating a motor vehicle by pulling it over, or the driver voluntarily initiates the contact by stopping the vehicle and signals for assistance by turning on the vehicle’s blinking hazard lights, as might be the case for example, with a health emergency, a flat tire, or running out of gas.

With few exceptions, the first situation is prohibited by the Fourth Amendment, unless the officer has a “reasonable suspicion” that the motorist has committed, is committing, or is about to commit a crime. A reasonable suspicion is more than a mere hunch because it must be supported by an articulable set of objective facts and circumstances that would cause a reasonable person to suspect that the individual being observed had committed, was committing, or was about to commit a crime. In the standard drunk driving case, for example, an officer would have a reasonable suspicion to believe the operator of a motor vehicle was impaired by alcohol if the vehicle was weaving, crossing the center line, exceeding the speed limit, and speeding up and slowing down erratically. The courts apply a flexible totality of the circumstances test in determining whether the officer’s suspicion was reasonable in any given case. The courts will not consider information acquired after a stop because the officer did not know it prior to the stop and could not have relied on information he did not know.

The second situation is not subject to the Fourth Amendment because there is no seizure when a police-citizen contact is initiated voluntarily by the citizen, or the citizen appears to require assistance. This means that an officer does not have to have a reasonable suspicion to contact a citizen who initiates the contact, or otherwise appears to require assistance. This distinction certainly makes sense when one considers, for example, the plight of a motorist who may have suffered a heart attack, turned on the hazard lights, pulled over, and stopped the vehicle before lapsing into unconsciousness. It would not make any sense to require a police officer to have a reasonable suspicion to believe that the apparently unconscious person was committing a crime to justify stopping to check on the person.

Unfortunately, however, the distinction between an investigatory stop that requires a reasonable suspicion under the Fourth Amendment and the voluntary citizen initated contact with a police officer that is not subject to the Fourth Amendment is not always easy to determine. As with the reasonable suspicion test, the courts consider the totality of the circumstances and ask whether a reasonable person in the same set of circumstances faced by the person in the case under review would have believed that he was free to terminate the contact at any time and drive away rather than remain and submit to the authority of the law enforcement officer until released.

This issue was raised by the prosecution in Crane-Station’s case. The trial judge agreed with the prosecution and ruled that the arresting officer, McCracken County Sheriff Deputy Eddie McGuire, did not require a reasonable suspicion to pull her over because she had voluntarily initiated a citizen-police contact to which the Fourth Amendment did not apply.

Consider the following evidence, apply the legal rules that I have set forth and explained for you, and see if you agree with the trial judge’s conclusion.

At the suppression hearing on November 27, 2006, Deputy McGuire testified that he was dispatched to investigate a 911 call. After he arrived, he checked the neighborhood for a few minutes looking for a dark blue Buick LeSabre with Washington plates that was described the caller. When he did not find it, he cleared the call and headed back toward town on U.S. Highway 60.

(Note: The content of this call has been discussed in a previous article (link). Briefly, the caller told the 911 dispatcher that the driver of the vehicle had mentioned “something about tar heroin and all that stuff” while talking to his neighbor in the neighbor’s yard and writing in her notebook. Since this information, even if true, describes what someone said to another person that may or may not have been witnessed by the caller and it does not describe a crime or an attempt to commit a crime, the call was insufficient to cause a reasonable person to suspect that the person described by the caller had committed, was committing, or was about to commit a crime. To conclude otherwise would be to hold that police officer may lawfully seize and investigate any person who mentions the name of a controlled substance to another person. Such a rule not only would dispense with the requirement that the suspected behavior be criminal in nature, it would violate a person’s right to freedom of speech under the First Amendment.)

As McGuire approached the traffic-light controlled intersection at U.S. Highway 60 and Cairo Road, he suddenly realized that he was passing a vehicle that matched the description provided by the 911 caller. After admitting that he did not know how fast he was driving as he approached and drew alongside her vehicle (Suppression Transcript p. 13), he said,

As I was passing the vehicle she had her left blinker on as if she was going to turn out in the passing lane, but she never did.

And then as I was going to go ahead and go past her, I noticed that the license plate – it was a Washington license plate was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me, and then when I pulled in behind her, she pulled over.

(Suppression Transcript p. 6)

The prosecutor asked him when he turned on his emergency lights and he said,

I just pulled in behind her, and she started to pull over. That’s when I lit her up.

(Suppression Transcript p. 6)

On cross-examination, defense counsel asked McGuire if she “was driving appropriately.” He said,

I was going – yes. She didn’t bring my attention as far as weaving or nothing like that. Speed wasn’t a factor.

(Suppression Transcript p. 13)

Defense counsel focused on the blinking left-turn signal with a few questions.

Q: Okay. And apparently, your testimony is that she had on her turn signal?

A: She had her left-turn signal on as if she was going to come into the left lane. That’s what brought my attention to that vehicle to begin with. And then as I was passing her, I noticed it had Washington tags.

Q: So I guess there’s at least a possibility she was going to move into the left lane and –

A: Right.

Q: — saw your vehicle and elected not to?

A: Correct. That’s possible.

(Suppression Transcript pp. 12-13)

Defense counsel asked him to describe when she activated her right-turn signal. He said,

A: She turned her other turn signal on when she was going into the emergency lane just to stop.

Q: When she was getting ready to pull over?

A: Yes.

(Suppression. Transcript p. 15)

When defense counsel asked him if he activated his lights “even before she came to a complete stop,” McGuire answered, “Correct.” (Suppression Transcript p. 14)

Q: So, technically, you did stop the vehicle?

A: I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.

Q: When you fell in behind her, she pretty much –

A: She – yeah. I suppose she assumed I was going to stop her, so she went ahead and pulled over anyway.

Q: Safe assumption under those circumstances?

A: Right.

(Suppression Transcript 14-15)

Consider also that Deputy McGuire wrote in his Uniform Citation and Offense Report that he stopped her, which he confirmed in testimony under oath at the Preliminary Hearing and before the Grand Jury.

In addition, on October 17, 2006, Assistant Commonwealth’s Attorney (now a McCracken County District Court judge) Christopher B. Hollowell prepared and filed the Commonwealth’s Bill of Particulars declaring in pertinent part under penalty of perjury that Deputy McGuire “stopped” her vehicle.

(Note: this is also admissible non-hearsay as a declaration by a party opponent that arguably should be dispositive of the legal issue. See Part 1 of my four-part series on the hearsay rule.)

The critical question then is whether a reasonable person in Crane-Station’s position would have pulled over into the emergency lane and subsequently stopped her vehicle after a police officer, who had pulled alongside her, slowed down, fell in immediately behind her, and activated his emergency lights as she moved over into the emergency lane?

We do not believe the answer to this question is reasonably debatable, especially since the officer who pulled her over wrote in his report and consistently testified under oath at three different pretrial hearings that he “stopped” her. Finally, in the suppression hearing, he testified that he intended to stop her and he conceded that her reaction to his behavior by pulling over and stopping was reasonable under the circumstances.

He was the only witness who testified at the suppression hearing.

We believe that only outcome driven judicial mendacity by the trial judge and the Court of Appeals, aided and abetted by a strong dose of prosecutorial legerdemain in formulating an argument unsupported by the police officer, who was the only witness, could conclude on this set of undisputed facts that Crane-Station voluntarily initiated a citizen-police contact.

Author’s disclosure: Crane-Station is my wife. We were married and I was a law professor when this incident intruded into our lives.

Cross posted at Firedoglake/MyFDL and at the Smirking Chimp.


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