Why the Jordan Davis murder was not a death-penalty case and update on Jodi Arias

October 2, 2014

Thursday, October 2, 2014

Good morning:

Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.

It is not a death-penalty case.

The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.

For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.

Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.

Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.

The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:

The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.

Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.

The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.

The effort to select a jury continues today.

Unfortunately, there is no television or live-stream coverage.

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Thank you.


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


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