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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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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Judge Healey denies Michael Dunn’s motion for change of venue

September 11, 2014

Thursday, September 11, 2013

Good afternoon:

Judge Healey denied Michael Dunn’s motion for a change of venue this morning saying he wants to start jury selection as scheduled on September 22nd and see how it goes.

He will grant the motion if they can’t select a fair and impartial jury. If that happens, he probably will bus in jurors from a nearby county and restart jury selection.

Needless to say, judges prefer having the jurors travel to the courthouse compared to the courthouse traveling to the jurors.

He granted the defense motion to prohibit the prosecution and witnesses from referring to Jordan Davis as the “victim,” but he denied the defense motion to prohibit the prosecution from introducing photos of Dunn’s writings on the wall of his cell.

This latter ruling is an important win for the prosecution because Dunn’s writings show he is a racist.

The denial of the motion for a change of venue as premature has become a standard response and reflects a wait-and-see approach that most judges favor.

The ruling that prohibits referring to Jordan Davis as the “victim” is a legally sound decision because the word implies that his death was unjustified thereby eroding the presumption that Dunn is innocent in that the killing was a justifiable use of deadly force in self-defense.

This problem can be cured by referring to him as the “deceased,” eliminating this issue as a potential basis for a successful appeal, if Dunn were convicted. This is why the judge’s decision is a smart strategic ruling.


Predicting witness credibility based on facial features

August 2, 2014

Saturday, August 2, 2014

Good afternoon:

Have you ever wondered about the validity of first impressions when meeting someone for the first time?

Researchers at York University in the UK conducted a study of the response to certain variable characteristics in human faces. They found that despite the variability of human faces and expressions, they created a model that predicted the first impressions of faces seen for the first time using a combination of facial attributes that explained 58% of the variance in impressions.

The authors describe the significance of their study as follows,

Understanding how first impressions are formed to faces is a topic of major theoretical and practical interest that has been given added importance through the widespread use of images of faces in social media. We create a quantitative model that can predict first impressions of previously unseen ambient images of faces (photographs reflecting the variability encountered in everyday life) from a linear combination of facial attributes, explaining 58% of the variance in raters’ impressions despite the considerable variability of the photographs. Reversing this process, we then demonstrate that face-like images can be generated that yield predictable social trait impressions in naive raters because they capture key aspects of the systematic variation in the relevant physical features of real faces.

The results of this study are important because they permit us to accurately predict most of the time how people will react to meeting a person for the first time based on the shape of the person’s face.

We form our opinion of a stranger’s trustworthiness or dominance without conscious thought almost instantly. The shape of a jaw or set of the eyes can lead to long-lasting opinions about someone. The scientists listed 65 facial attributes.

Although this information may be most useful to advertisers, trial lawyers can use it to predict how juries will react to what they say and whether they are likely to believe their clients.

Read the abstract of the study, which has been published in the Proceedings of the National Academy of Sciences.

The implications of this study may be disquieting to those of us who want to believe that we do not make snap decisions about a stranger’s character based on the shape of the face.

Just for fun:

Based on looking at Theodore Wafer’s face, do you believe he is a trustworthy person?

Have you formed any opinions about him, based on his facial expressions?

If so, what are they?

What about Oscar Pistorius?

George Zimmerman?

Michael Dunn?

This is our 1163rd post.

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Thanks,

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.

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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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Michael Dunn’s sentencing must be continued to avoid constitutional error

March 11, 2014

Tuesday, March 11, 2014

Good morning:

Judge Russell Healey said yesterday that he will announce his decision on Friday, regarding the defense motion to continue Michael Dunn’s sentencing until after the retrial of the murder charge.

For the following reasons, I believe he must grant the motion to avoid constitutional error.

Briefly in review, the jury convicted Dunn of three counts of attempted second-degree murder and one count of shooting into a vehicle. It hung 9-3 in favor of convicting him for shooting and killing 17-year-old Jordan Davis.

Dunn was represented at yesterday’s hearing by his trial counsel, Cory Strolla, who is withdrawing because Dunn is out of money. He will be replaced by a public defender.

He argued that the sentencing must be continued because anything Dunn says at his sentencing can be used against him at the retrial.

The prosecution has objected to the continuance on the ground that Dunn has waived his right to remain silent by testifying at trial.

Although the answer is relatively simple, Judge Healey appears to be struggling a bit with this motion.

Let’s break it down :

The Fifth Amendment states in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

First, as long as Dunn remains in legal jeopardy of conviction on the murder charge, he can assert his right to remain silent, even if he has previously testified.

Second, Dunn also has a right to allocution, which means he has a right to be heard before the court imposes the sentence.

Third, if he exercises his right to allocution, he sacrifices his right to remain silent. He cannot be compelled to make that choice and that is the precise problem he faces.

Therefore, Judge Healey should grant the defense motion.

I am surprised that the prosecution has failed to see this issue.

My question for Angela Corey is why build constitutional error into the record at this point? Dunn is not going anywhere.

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This is our 928th post and donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

Adjusting and fine tuning to dial in the white fear and racist corruption frequencies in the Florida courts took some doing, but I am on track now.

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We cannot pay our bills without your support.

Fred


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