Court of Appeals to hear oral arguments February 19th in Tsarnaev case

February 12, 2015

The First Circuit Court of Appeals has scheduled oral arguments next Thursday, February 19th, to consider Dzhokhar Tsarnaev’s request to move his death penalty trial out of Boston. United States District Court Judge George A. O’Toole has denied three defense motions to move the trial and that prompted the defense to go to the appellate court. Meanwhile, jury selection will continue.

The New York Times reports,

In making their requests to move the trial, defense lawyers had cited the attitudes of prospective jurors. They said that of the 1,373 prospective jurors who filled out questionnaires, 68 percent said they already believed Mr. Tsarnaev was guilty and 69 percent had said they had a personal connection to the case.

They also cited the outpouring of emotion in Boston on Jan. 28 when a man shoveled off the marathon finish line in the midst of a blizzard. The Boston Athletic Association, which oversees the marathon, issued a statement saying that the act “proves that — in Boston — everyone owns the marathon.”

The defense seized on this as evidence of bias. “Such remarkable and enduring displays of public solidarity in the wake of the Marathon bombings are laudable,” the defense wrote. “But jurors drawn from the community where ‘everyone owns the Marathon’ cannot be dispassionate and impartial.”

Judge O’Toole and the lawyers have individually questioned 173 potential jurors so far in an attempt to create a pool of 60 – 70 potential jurors who have been passed for cause by both sides (i.e., people who claim that they can put aside what they know about the case and any opinions they may have formed about Tsarnaev’s guilt and impartially decide the case solely on the basis of the evidence introduced in court and the jury instructions). Judge O’Toole wants a pool that large before the lawyers exercise their peremptory challenges. Unlike challenges for cause that must be supported by a reason why the potential juror cannot be fair and impartial, peremptory challenges do not require a reason. Each side has 20 peremptory challenges, plus 3 for the 6 alternates. If both sides exercise their full complement of peremptory challenges, 46 potential jurors could be disqualified. To be on the safe side, the pool should consist of 64 potential jurors. They are not there yet, despite a month of jury selection and that demonstrates how tainted the potential jurors are by the extensive pretrial publicity and their feelings about the case.

In addition, a large percentage of the potential jurors would either automatically impose the death penalty if Tsarnaev is convicted or automatically refuse to impose it because they are opposed to it. Only people who can agree to balance evidence in aggravation against evidence in mitigation can serve on the jury. This is called the death qualification process.

I do not believe it’s possible to select a fair and impartial death qualified jury in Boston and I would grant the defense motion for a change of venue, if I were the judge. Judge O’Toole disagrees. Now a three-judge panel will decide whether to keep it in Boston or move it to another location.


Dzhokhar Tsarnaev’s Developing Dilemma

January 22, 2015

A fascinating issue is emerging during jury selection in the Dzhokhar Tsarnaev trial.* The vast majority of the prospective jurors who have been questioned believe he is guilty. A few have expressed doubt regarding his role and responsibility, but not about his participation in the bombing. Under ordinary circumstances that would be terrible news for the defense and good news for the government.

Nevertheless, the government has a problem.

Very few of the prospective jurors believe in the death penalty.

That’s good news for the defense and bad news for the government because only the defendant can move for a change of venue. He is not likely to do that because opposition to the death penalty is highest in the Boston area.

The Sixth Amendment provides in pertinent part,

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 . . .

Since Tsarnaev has a right to be tried in the Eastern District of Massachusetts, the government lacks standing to move for a change of venue and the Court has no authority to order it.

Quite the dilemma. Boston is the last place on the planet where the defense would like to try the guilt/innocence phase of this case, but Boston probably is the first place where they would want to conduct the penalty phase.

I’ll bet they will stay in Boston and not renew their motion for a change of venue.

Crane-Station adds:

Some of the thoughtful and interesting answers given summarized in this article:

Here’s How Possible Boston Bombing Jurors Feel About The Death Penalty

Juror 9:
Asked twice if he could impose the death penalty, he said, “I’m committed against it.”

Juror 10:
“There is no way in modern America today that I’m going to vote for the death penalty. I will not.”

Juror 19:
“This whole process made me more religious. I just can’t agree with the death penalty.”
“I just think killing another man is wrong. And I would be one of the members doing it. I just can’t kill another person.”

Juror 23:
“I would rather do the life imprisonment. I’m against the death penalty. It would have to be as personal as my child. I could not pass on the death penalty.”

Juror 27:
“I would leave myself open to persuasion, but I would be disinclined.”

Juror 35:
He said the death penalty is “cruel and unusual.”

Juror 42:
“Here’s the thing. This was a horrendous crime — hundreds, thousands affected. The magnitude was significant. At the same time, I do have reservations about the death penalty as a policy.”
“The age of the defendant has some weight in my mind. The defendant was 19 when the crime was committed. I look at that as a mitigating circumstance.”
“I would have a difficult time [voting for the death penalty]. Let’s put it this way: It would go against my judgment that the death penalty is a good idea for society. My personal belief is that the death penalty serves no constructive purpose.”
On could he vote for the death penalty, “If there were societal risks, I would say…possibly? It would have to be pretty compelling.”

Juror 43:
“I think it’s something I would struggle with. I’m not sure I have the personal constitution to participate in someone’s death.”

Juror 49:
Asked if she could conceive a situation “so disturbing or morally repugnant” enough to impose the death penalty, she said, “Pretty sure. No.”

Juror 51:
“I don’t object to the death penalty itself. But I could never decide somebody’s fate like that.”
“I don’t feel that it’s up to me to make that decision to take somebody’s life.”

Juror 54:
“It is not a logical punishment for any crime. It costs the state more. It carries the burden of being irreversible if the person is found not guilty afterwards. It’s proved not to be a deterrent.”
When asked if he could conscientiously vote to impose death: “I think it would be difficult for me, but honestly I think I could.”

Juror 57:
“I’m completely opposed to it.”
Asked if she could conceive of any case that would be so shocking that it would change your mind, she said, “No.”

Juror 60:
“Theoretically, I believe in the death penalty. It becomes very different when you’re looking at you making the decision.”

Juror 65:
“I think more often than not I am opposed to the death penalty … I’d have more difficulty voting for it, but I believe I could do it.”

Juror 67:
“I don’t believe in an eye for eye justice.”
“Government shouldn’t impose the ultimate penalty.”
“When someone does a heinous crime, you don’t do the same thing back.”

Juror 84:
“Upon reflection, I strongly oppose the death penalty. I think my answer would be he should not receive the death penalty.”

Juror 102:
“I have no view either way. I am really in the middle. I would have to hear everything and make an educated decision.”
“I was surprised that the death penalty was on the table.”

*I have been following Jim Armstrong on Twitter. He is covering jury selection for WBZ in Boston.


Tsarnaev Voir Dire: This is my friend Dzhokhar

January 16, 2015

Voir dire (to question) is underway. The video is an interview of Ted Wayman, a former WBZ News anchor in Boston who was summoned for jury duty in the Tsarnaev case and excused because of his substantial job related contacts with Judge O’Toole, federal prosecutors and law enforcement officers who will be testifying at the trial. The interview was conducted by Adam Reilly, a reporter for Greater Boston.

Q: What did you make of his demeanor, when he came in? Were you watching him closely?

A: Everybody, all eyes, once he came in, were on him, like almost gasped within the courtroom. Oh my gosh! That’s the defendant. Uhm, unresponsive. Really uninterested in the whole process. Had very little contact with his defense team. He was sitting in the middle of them. Uhm, really didn’t look at the jury pool. Didn’t look at the media that was there. Didn’t look at the judge when he addressed the defendant. He was uninterested in the whole process.

This is a terrible way for the defense to start jury selection. First impressions matter, a lot, and if I were a member of Dzhokhar Tsarnaev’s defense team, I would be extremely concerned about the ability of the rest of the 200 or so prospective jurors, who witnessed that not-so-grand entry, to be fair and impartial jurors.

Another tell is Wayman’s reference to Dzhokhar as ‘the defendant.’ He’s not thinking of him as a person; he’s thinking of him as a thing. That means he has already decided that Dzhokhar is guilty. Fortunately for the defense, they will not have to use a peremptory challenge to get rid of him.

I always made a point of humanizing my client throughout the trial by referring to him by his first name, touching him, and conversing with him in an effort to provoke a smile. At almost every moment of a trial, at least one juror will be watching the client. Trials are a form of theater. Nonverbal conduct is a form of testimony. Most jurors can detect insincerity. Therefore, the lawyer must avoid scripting the client’s behavior and instead provoke the desired genuine response with the right word or gesture at the right time. This skill is not taught in law school and cannot be found in a book. Yet, if performed at the right time in the right way, it can make the difference between a conviction and an acquittal or a life sentence and a death sentence.

The defense team apparently discovered the problem because reporters observing voir dire today have tweeted that Dzhokhar appears relaxed, engaged with the process and communicating with his attorneys. For example,

O’Ryan Johnson ‏@crimeboston 3h3 hours ago

Dzhokhar shares a laugh at the defense table with Def. Lawyer Miriam Conrad. Tsarnaev wearing open collar shirt, blazer. He’s relaxed,chatty

Jim Armstrong ✔ @JimArmstrongWBZ

I am a pool reporter* for this session of #Tsarnaev jury selection. He just re-entered from lunch, says hello to lawyers by name.

*Today is the second day of voir dire. The reporters were segregated yesterday in a room watching a live feed video of voir dire. Technical difficulties resulted in a change in procedure. Two reporters are now permitted in the courtroom to report on the proceedings. They share their work product with the other reporters outside the courtroom and are replaced by another two reporters and so on per each session.


Ebola Best and Worst-Case Scenarios

September 24, 2014

Wednesday, September 24, 2014

Good morning:

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.

References:
CDC – Ebola- Ebola Virus Disease- What’s New

New Modeling Tool for Response to Ebola Virus Disease


Jury selection will be the most important part of the Michael Dunn retrial

September 16, 2014

Tuesday, September 16, 2014

Good afternoon:

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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Tuesday Evening Open Discussion: Comparison of Wafer to Pistorius

July 22, 2014

Tuesday, July 22, 2014

Good evening:

Welcome to the Tuesday Evening Open Discussion where off topic is on topic.

A jury of 12 with two alternates has been selected in the #TheodoreWafer porch-shooting case. Two black females, two black males, one Arab male, two minority females, three white females and four white males. Don’t know anything else about them because jury selection was not televised or live streamed.

I am frustrated by the decision not to broadcast jury selection because that is where most trials are won or lost.

Opening statements will commence at 10 9 am EDT tomorrow. They will be livestreamed as will the rest of the trial.

Many people have compared this case to the Zimmerman case, but I believe it more closely resembles the #OscarPistorius case because the defendants in both cases are claiming self-defense after shooting through locked doors at people whom they say they believed to be an intruder (OP) or potential intruder (TW).

What do you think?

Anything else on your mind?

This is our 1149th post.

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Thanks,

Fred


We need to abolish the use of peremptory challenges in jury trials

June 26, 2014

Thursday, June 26, 2014

Good morning:

The SCOTUS prohibited the use of peremptory challenges, for which no reason must be given, to systematically exclude blacks from juries in criminal trials of black defendants in Batson v. Kentucky.

Batson permits the use of peremptory challenges to exclude blacks from juries so long as the party challenging the juror has a race neutral reason for asserting the challenge.

The Batson rule applies to all cases, whether criminal or civil, and it has been extended to prohibit the use of peremptory challenges to systematically exclude jurors based on gender or religious affiliation.

Unfortunately, a smart lawyer usually can come up with a race neutral “reason” to exclude a black juror, however unlikely, to pass judicial scrutiny.

The reverse side of that racial injustice is the acquittal by all white juries of guilty white defendants who murdered black victims.

We saw that in the Zimmerman trial.

Justice Thurgood Marshall realized games were being played in the aftermath of Batson. He wanted to solve the problem by getting rid of peremptory challenges.

Until recently I disagreed.

I quit practicing law ten years ago and it has taken me this long to finally change my mind and acknowledge that Justice Marshall was right.

We should not be excluding anyone from serving on a jury without a valid reason. By eliminating peremptory challenges, we would be requiring lawyers to present a convincing case for disqualifying a juror, convincing in the sense that opposing counsel would have an opportunity to rehabilitate a challenged juror.

This is how courts handle challenges for cause. Unless unopposed, each challenge for cause becomes a mini trial decided by the judge after each side gets an opportunity to question the challenged juror.

By forcing lawyers to support a challenge with an evidence based reason, instead of a hunch or a prejudice, we would do no more than subject them to the same standard to which we routinely hold police officers when they arrest a suspect. Such a rule would only improve our system of justice.

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Thank you,

Fred


Racists should be banned from jury service

June 13, 2014

Friday, June 13, 2014

Good afternoon:

Xena posted a comment to my post about Theodore Wafer advising that his hearing has been continued to next Friday, June 20th.

She also said,

Did you read the part where the defense wants to argue that Renisha mistook Wafer’s house for a drug dealer’s house? The defense’s argument is that someone who lived close to Renisha was arrested for marijuana after Renisha was killed.

This presents an interesting new wrinkle to putting a victim on trial for a homicide, so let’s break it down, take a look and estimate the probability that it will be successful.

Let’s begin by assuming for the sake of argument that,

(1) someone who lived near Wafer’s house sold marijuana,

(2) McBride had previously purchased marijuana from that person at that address, and

(3) she mistakenly believed she was knocking on that person’s front door when she knocked on Wafer’s front door.

I don’t believe that set of assumed facts, which Wafer did not know at the time of the shooting, helps his claim of self-defense because, regardless of her intent, he had to be in fear of suffering imminent death or grievous bodily harm and his belief had to be reasonable. That is, a reasonable person in the same situation also would have believed that he was in imminent danger of suffering death or grievous bodily injury.

The racist right wing hate machine skips over the word reasonable because its members devoutly believe that their opinions are reasonable.

They fail to understand that the word reasonable in a legal context means evidence-based, as opposed to opinion-based. Racial prejudice is by definition opinion-based, rather than evidence-based. Therefore, it is unreasonable and no verdict should ever be based on it.

Prospective jurors who are unaware of their racial prejudice, or who deny being prejudiced when they know damn well they are prejudiced, should never sit on a jury when a person of color is the defendant or a victim allegedly injured or killed by a white defendant.

Even if McBride had a gun and intended to kill Wafer, and there is no evidence that she did, nothing about the situation he was in would likely have caused a reasonable person to believe he was in imminent danger behind the two locked doors. Seems to me that opening the door demonstrates unequivocally that he did not fear death or grievous bodily injury.

That act is an evidence-based expression of his state of mind when he opened the door and it defeats his claim of self-defense.

The castle doctrine does not help Wafer because she did not attempt to break in or enter his house. She was unarmed and outside his house knocking on the door. He was inside his house in a safe location on the other side of two locked doors while armed with a loaded shotgun and he had a cell phone with which to call 911.

He cannot create a necessity to act in self-defense by opening the door.

We might have a different situation if he were living next to a drug house with all sorts of people coming and going at all hours of the day and night occasionally mistaking his house for the drug house, but even then he would have to have an objectively reasonable basis to believe his life was in danger, as opposed to being pissed off that someone was knocking on his door disturbing his sleep in the middle of the night.

As a matter of law, therefore, I believe the answer is easy. The evidence that the defense seeks to introduce is irrelevant and inadmissible.

Just as O’Mara and West did in the Zimmerman trial, the defense is attacking the victim’s character in an effort to say she deserved to die.

However, as much as right-wing racists want to believe that they have a right to kill any person who is young, black, drunk and/or stoned (e.g., George Zimmerman), especially if that person is listening to loud music and is disrespectful (e.g., Michael Dunn), the law recognizes no such right or privilege.

Finally, do not forget that Wafer did not initially claim self-defense. He told the police that his gun went off by accident.

Look for the defense to do everything it can to keep him off the stand at trial, so he does not have to explain to the jury which story was a lie and why he lied instead of telling the truth.

Trial lawyers love it when they get to ask, “Were you lying then or are you lying now?”

For all of these reasons, I believe the evidence the defense wants to introduce is irrelevant and inadmissible. I also believe a jury will convict him of murder, provided the prosecution identifies and eliminates all potential stealth jurors who would willingly substitute their racially prejudiced opinions about black teenagers for actual evidence.

We have seen jurors do that in two Florida trials.

The question is whether the prosecution will permit that to happen in Detroit.

Wafer’s trial is scheduled to start in five weeks, probably not long after Judge Thokozile announces her decision in the Oscar Pistorius case.

This is our 1082nd post. If you appreciate this analysis and our continuing effort to explain what is happening between the lines in our failing criminal justice system, please make a donation.

Thank you,

Fred


Michael Dunn trial date continued

April 23, 2014

Wednesday, April 23, 2014

Good afternoon:

News4Jax is reporting that Michael Dunn’s trial date has been continued at the request of his public defender, Waffa Hanania. The court will set a new trial date at a hearing on June 9th.

Ms. Hanania has to watch the trial and review thousands of pages of police reports, forensic reports, autopsy reports, witness statements to police, witness depositions, trial transcripts, and defense investigation reports to review before she can realistically determine what else she must do to prepare for trial and how long it will take her to do it. In addition, she has other cases to handle and some of them will have scheduled trial dates.

I think Judge Healey will set a new trial date in the late fall or early next year. There is no reason to hurry because Dunn isn’t going anywhere. He will remain in the county jail until his case is resolved.

The judge has already ruled that the sentencing for the three attempted murder convictions will have to wait until the murder charge is resolved.

Whether he is found guilty or not guilty, a sentencing will follow, probably about 30 days after verdict.

If the new jury cannot agree on a verdict and a mistrial is declared, Angela Corey will have to again decide whether to retry him.

There is no limit to the number of times she can retry him on the murder charge, if each jury cannot reach a unanimous verdict. The Double Jeopardy Clause does not prevent a retrial because no verdict has been reached.

I doubt she will try the case a third time, if the second jury hangs.

As I’ve said many times beginning with the Zimmerman case, jury selection is the most important part of these ridiculous white-man-shoots-unarmed-black-kid self-defense trial.

If Corey and her team do not weed out the racists, they ain’t going to win.

They also need to take another run at persuading Judge Healey to allow them to introduce Dunn’s racist letters, phone calls, and graffiti on his cell wall to show why he he shot at the kids. Authentication of the graffiti might pose a problem, but it should not be difficult to find someone to identify it as his.

I believe the evidence is admissible to prove motive under Rule 404(b). Motive is relevant and admissible because he is charged with premeditated murder and he claims self-defense. Indeed, his state of mind is the primary issue in the case.

And, if he dares to open the door again by placing his character in issue, Corey better be prepared to back the garbage truck up to the courthouse door and dump all of the stinky stuff the former neighbor knows about him on the courtroom floor.

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Fred


Jury’s failure to reject Dunn’s self-defense claim produces absurd result

February 17, 2014


Democracy Now report about the verdict and Amy Goodman’s interview of Michael Skolnik

Monday, February 17, 2014

Good morning:

The jury’s failure to reject Michael Dunn’s self-defense claim produced an absurd result.

It convicted him of shooting at and missing three black teenagers but did not convict him of any crime for killing Jordan Davis.

That result, though presumably not intended to punish Dunn for failing to kill the three black teenagers, nevertheless looks bad.

With the exception of Dunn’s self-serving testimony, there was no evidence of self-defense.

Therefore, the viability of his claim of self-defense depended entirely on his credibility.

He lied when he testified under oath that he contacted law enforcement officials after the shooting before they contacted him.

He told the jury that, while driving home to his residence in Brevard County the morning after the shooting, he called his neighbor, a federal agent employed by the U.S. Department of Agriculture, and told him that he wanted to discuss an urgent personal matter with him upon arrival.

The prosecution produced his cellular telephone bill that established that the phone call was initiated by the neighbor.

Rhonda Rourer, his fiancee who accompanied him on the drive, testified that he placed the call from the neighbor on speakerphone. The neighbor invited the two of them over to his place for a social event. Dunn declined claiming Rourer was not feeling well enough to attend. Dunn did not mention getting together later or at any other time to discuss an urgent personal matter.

Dunn’s false statement to the jury while under oath was important because, despite claiming that he fired into a vehicle occupied by black gangsters and thugs after being threatened with death, he never called 911 to request assistance or to report what happened. Instead, he drove out of the parking lot past a parked police vehicle on the other side of the street with its emergency lights on and drove to his hotel where he walked his dog and ordered a pizza.

The police would not have been able to identify Dunn as the shooter, but for the actions of a homeless young man living out of his car, who was in the right place at the right time, memorized Dunn’s license plate number and gave it to the store manager who called it into 911.

He did not call police that night and he did not call them next day.

Can anyone of sound mind seriously believe that his actions are consistent with a claim of self-defense in a case in which Jordan Davis and his three friends were unarmed and no weapon of any kind was in their vehicle?

Why wasn’t it obvious to every member of that jury and every person who followed this trial that Michael Dunn lied because he was hoping the police would not be able to identify him as the shooter.

Why wasn’t it obvious to every member of that jury and every person who followed this trial that Michael Dunn lied under oath to the jury hoping they would believe he initiated contact with the police?

Why wasn’t it obvious to every member of that jury and every person who followed this trial that Michael Dunn did not shoot Jordan Davis in self-defense?

Especially since Dunn never once told Rhonda Rourer that he saw a shotgun or the barrel of a shotgun or any other weapon before he fired 10 bullets into the red Durango.

The prosecution lost this case in jury selection.

I have repeatedly stressed the importance of jury selection to my clients and colleagues while practicing law, to my law-school students in trial advocacy, and to my readers on this blog.

To prepare for jury selection in the next trial, prosecutors must identify the jurors who believed Michael Dunn fired in self-defense. They must review the jury selection process to determine what they did wrong or failed to do that resulted in those jurors being seated on the jury.

They will lose again, if they fail to do that and justice again will be denied to Jordan Davis and his family.

____________________________________________________________________________________________________________________________________________________________________________________________

We face having our power turned off this week unless we get some more donations. Please donate, if you have not already done so.

Fred


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