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.

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Fred


Racism is an insane delusion about people of color

February 16, 2014

Sunday, February 16, 2014

Good morning:

Although I am pleased with the three guilty verdicts of attempted second degree murder and the guilty verdict for shooting into a car that will keep Michael Dunn locked up for the rest of his life, I am disappointed with the jury’s failure to reach a verdict on count 1, which charged him with first degree murder for the death of Jordan Davis.

Ironically, without the presence of the three boys in the Durango and the guilty verdicts to diminish our disappointment, we would be in a much different emotional state today.

I support Angela Corey’s decision to retry him, but she is going to have to change her strategy to obtain a different result.

I am going to focus on Jordan Davis today, which is his birthday, and explain what she must do to obtain justice for Jordan.

The time has come to stop white-washing racially motivated crimes. By that, I mean ignoring the elephant in the living room, racism.

Although motive is not an element of most crimes and therefore irrelevant, it may be relevant (i.e., probative) to prove intent.

The importance of introducing evidence of racial motivation comes into sharp focus when the victim, like Jordan, was black unarmed, and the defendant, like Dunn, is white and claims he saw a weapon or a portion of a weapon and killed the victim in self-defense.

Such a killing would be justifiable homicide in self-defense, if the defendant reasonably believed himself to be in imminent danger of death or serious bodily injury.

As our United States Supreme Court has often said, reasonableness depends on the “totality of the circumstances.”

We know from Dunn’s letters that he regarded the four boys as dangerous thugs and gangsters listening to “thug” music.

That is a racist assumption unsupported by any evidence.

Sometimes people see what they expect to see or want to see and that certainly applies to racists who are substantially more likely to assume that an unarmed black male teenager is an armed thug than an unprejudiced person.

Like it or not, that mindset is part of the totality of the circumstances that a jury should have a right to consider in deciding whether a defendant like Dunn gave a truthful account of his actions and acted reasonably.

Our legal system needs to acknowledge the existence of racism and call it what it is, an insane delusion.

A claim of self-defense must be evaluated according to whether a reasonable person in the same situation as the defendant would have believed himself to be in imminent danger of death or serious bodily injury such that the use of deadly force in self-defense was reasonably necessary.

There is no such thing as a reasonable insane delusion and we do justice to no one by excusing a violent act committed by a person pursuant to an insane delusion and ignoring the consequences of that act.

I do not mean to suggest or imply that Dunn actually saw a weapon or believed that he did. I believe he lied about that to avoid arrest and prosecution.

Evidence of a racial motivation to kill makes comprehensible the otherwise incomprehensible crime.

For example, let’s assume that a defendant in a murder case, who shot and killed an unarmed teenage girl whom he did not know, testifies and says,

“Why would I have killed her unless I believed she had a gun and was going to rob and kill me?”

A racist is more likely to believe that she had a gun or lie about it than a person who is not racist.

White washing racist defendants by concealing or withholding evidence of their racial motivation from a jury will produce injustice, not justice.

It is not a coincidence that my hypothetical resembles the Renisha McBride case in Detroit, which is coming up for trial in June.

I do not know if Theodore Wafer is a racist, but I certainly would be looking for such evidence with the intent of introducing it at trial, if I were the prosecutor.

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This is our 901st post and we passed 2 million all-time views for the blog last night, despite being in existence only a little over two years.

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Fred


Saturday night review of the Dunn trial 2/15/2014

February 15, 2014

Saturday, February 15, 2014

Good evening:

The Good News

A semblance of order has been restored to the universe. After deliberating for 33 hours, the jury in the Michael Dunn case convicted of him of 3 counts of attempted murder in the second degree involving Tommy Stornes, Tevin Thompson and Leeland Brunson. Each crime was committed with a firearm. It also convicted him of discharging a firearm into a vehicle.

Dunn must be sentenced to a minimum of 75 years and could be sentenced up to a maximum of 105 years.

Since he is 47-years-old, he will spend the rest of his life in prison.

There do not appear to be any issues for appeal that are likely to result in reversal of his conviction.

The Bad News

The jury was unable to reach a verdict as to count 1, which charged him with the premeditated murder of Jordan Davis. We do not know what the split was about or the vote because the jurors declined to talk to the press.

State Attorney Angela Corey announced that her office will retry Dunn on count 1.

Dunn remains in custody and is scheduled to be sentence the week of March 24th.

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We went over 2 million views for the site tonight in just a little over 2 years. Thank you to all of our readers.

Fred and Crane.


Jury could be hung on Brunson count

February 14, 2014

Friday, February 14, 2014

Good evening:

Follow my reasoning here, because I think Crane and I have figured this out.

According to the note, the jury has reached verdicts on all but one count.

Because self-defense is a defense to all five counts, we believe they would have acquitted Dunn on all counts, if they bought his claim of self-defense.

For example, consider the fifth count, which is basically shooting a gun in a public place. It’s kind of a-canary-in-the-coal-mine instruction regarding self-defense because it’s the simplest charge to prove. If they hang on it, they disagree on self-defense and cannot convict on any count.

Therefore, we think they are arguing about something else.

We also don’t see them convicting on the attempt charges and hanging on the main count because the main count drives this verdict.

For example, his mental state and act were the same every time he fired the gun.

Convict on one, whether murder 1, murder 2, manslaughter or whatever, convict on all. Just insert the selected crime after the word attempt.

However, they could have convicted on the main charge and 2 of the 3 attempt charges, but hung as to Leeland Brunson (who was sitting in the back seat next to Jordan), because Dunn was shooting at Jordan intending to hit Jordan. Not sure he even knew Brunson was in the back seat.

The doctrine of transferred intent removes any difficulty in convicting Dunn for the Brunson shooting, but I don’t know if they gave that instruction.

Transferred Intent:

Assume A intends to shoot B, but not C.

Assume A shoots and misses B, killing C.

Q: Can A be convicted of intending to shoot C?

A: Yes, because his intent transfers to the person he shot.

However, murder 2 and manslaughter do not require proof of intent to kill or premeditation. That is why they are easier to prove

We do not see them disagreeing on any of the attempt charges unless they have found that Dunn acted with premeditation. Without an instruction on transferred intent, they might disagree on Brunson.

There you have it.

The jury will resume deliberations at 9 am EDT tomorrow.

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Fred


Dunn Trial: What happens if there is a hung jury?

February 14, 2014

Friday, February 14, 2014

Good afternoon:

People have been asking questions regarding what happens if the jury cannot unanimously agree on guilt or innocence (i.e, hung jury)? The analysis goes count by count.

(1) A verdict requires unanimous agreement. A verdict on a count is a final determination of guilt or innocence as to that count, regardless of what happens on the other counts. For example, the jury could reach a verdict on some counts, but not others.

(2) The jury cannot consider lesser-included instructions regarding a particular count or charge, unless it has failed to reach a verdict on that count or charge.

(3) If the jury cannot reach a verdict on a count, even after serially considering each of the lesser-included instructions, the foreperson will so advise the court.

(4) The court may order the jury to continue deliberating or send them the following question:

Do each of you unanimously agree that further deliberations as to count (fill in the blank) would not produce a verdict?

If the answer is “No,” he will order them to continue deliberating on that count.

If the answer is “Yes,” he will declare the jury hung on that count.

(5) At no time may the court ask or the foreperson reveal the status of the vote or describe the disagreement.

(6) Federal courts and some state courts have what is called an “Allen charge” in which the court tells the jury that a lot of time, effort and expense went into trying this case and it should accordingly make every reasonable effort to reach a verdict. Don’t know if Florida follows this practice.

(7) The prosecution can, but is not required, to retry a count where the jury could not reach a verdict.


Wednesday night review of the Dunn trial

February 12, 2014

Wednesday, February 12, 2014

Good afternoon:

Closing arguments concluded today with an exceptional 36 minute rebuttal argument by Assistant State’s Attorney John Guy.

Several memorable statements:

He didn’t shoot to save his life. He shot to save his pride.

The detectives didn’t sleep through the night, the defendant slept through the night.

The physical evidence is irrefutable and supported by the eyewitnesses.

Who has the ultimate interest in the outcome of this case? It’s the defendant and his story keeps changing.

Michael Dunn has an excuse for everything, but an explanation for nothing.

Your verdict won’t change the past, but it will forever define the past in this town.

To the living we owe respect. But to the dead, we owe the truth.

Judge Healey is finishing up his reading of the instructions to the jury.

Yesterday, he said he would permit the jury to deliberate this evening after dinner, if they are amenable, but will not let them deliberate after 8 or 9 pm.

What do y’all think about the case and what happened today?

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Fred


Live blogging closing arguments in Michael Dunn trial

February 12, 2014

Wednesday, February 12, 2014

Good morning:

We will be live blogging the live stream of closing arguments in the Michael Dunn trial today.

They are scheduled to begin at 10 am, EDT and will probably end sometime between 4 and 5 pm.

The State will go first and the defense will follow. Since it has the burden of proof, the State will have an opportunity to rebut the defense closing.

The State’s burden of proof is not only to prove each element of each crime charged beyond a reasonable doubt, but to also prove beyond a reasonable doubt that Dunn did not act in self-defense (i.e., that he did not reasonably believe himself or his fiancee to be in imminent danger of death or serious bodily injury when he fired his gun multiple times at the boys in the red Durango).

The arguments are scheduled to start in about 30 minutes.

Court is already in session discussing the final set of jury instructions.

Here is the link to the First Coast News live stream.

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